30-31-35.  Forfeiture; procedure.

Constitutionality.

Generally.

Burden of proof.

Claim preclusion.

Discovery.

           —Right not to respond.

Evidence.

           —Insufficient.

Jurisdiction.

Procedure.

           —Pretrial.

Where the city’s ordinance provided for forfeiture of drug paraphernalia but did not provide for a hearing, which was required under  30-31-35 NMSA 1978, the court severed that part of the ordinance from the remainder of the ordinance and found the remainder of the ordinance constitutional.  Weiler v. Carpenter, 695 F.2d 1348, 1982 U.S. App. LEXIS 23299 (10th Cir. N.M. 1982).

Legislature’s choice to tie forfeiture directly to the commission of drug offenses under the Controlled Substances Act,  30-31-35 NMSA 1978, confirms the punitive nature of these provisions.  Albuquerque Police Dep't v. Martinez (In re Fourteen Thousand Six Hundred Thirty Nine Dollars), 1995-NMCA-088, 120 N.M. 408, 902 P.2d 563, 1995 N.M. App. LEXIS 86 (N.M. Ct. App.), cert. denied, 120 N.M. 213, 900 P.2d 962, 1995 N.M. LEXIS 304 (N.M. 1995).

Criminal court’s order that seized property should be returned to defendant because it was illegally seized served to collaterally estop the civil forfeiture proceeding regarding the property because the State in the criminal action and the police department in the civil action were arms of the same larger entity. Albuquerque Police Dep't v. Martinez (In re Fourteen Thousand Six Hundred Thirty Nine Dollars), 1995-NMCA-088, 120 N.M. 408, 902 P.2d 563, 1995 N.M. App. LEXIS 86 (N.M. Ct. App.), cert. denied, 120 N.M. 213, 900 P.2d 962, 1995 N.M. LEXIS 304 (N.M. 1995).

Judgment ordering forfeiture of a car under former 54-11-33, 1953 Comp. (now 30-31-34 NMSA 1978) and 54-11-34G, 1953 Comp. (now 30-31-35 NMSA 1978) was improperly entered when the owner met his burden of going forward by testifying that he neither consented to nor had any knowledge that his car would be used to transport controlled substances. State v. Ozarek, 1978-NMSC-001, 91 N.M. 275, 573 P.2d 209, 1978 N.M. LEXIS 892 (N.M. 1978).

Police department was collaterally estopped from pursuing forfeiture action under  30-31-35 NMSA 1978 against arrestee when trial court had issued an order that released all property to arrestee and default judgment in favor of department had been set aside.  Albuquerque Police Dep't v. Martinez (In re Fourteen Thousand Six Hundred Thirty Nine Dollars), 1995-NMCA-088, 120 N.M. 408, 902 P.2d 563, 1995 N.M. App. LEXIS 86 (N.M. Ct. App.), cert. denied, 120 N.M. 213, 900 P.2d 962, 1995 N.M. LEXIS 304 (N.M. 1995).

Where a suspect was arrested on charges of trafficking cocaine and his van was seized pursuant to the Controlled Substances Act,  30-31-1 to 30-31-40 NMSA 1978, he had a right to a forfeiture hearing within a reasonable time after the seizure.  30-31-35 NMSA 1978.  State ex rel. Albuquerque Police Dep't v. One Black 1983 Chevrolet Van, 1995-NMCA-082, 120 N.M. 280, 901 P.2d 211, 1995 N.M. App. LEXIS 79 (N.M. Ct. App. 1995).

A judgment and order against defendant determining that money seized from his vehicle during routine traffic stop was subject to forfeiture under New Mexico Controlled Substances Act, 30-31-1 NMSA 1978, was properly reversed because the police failed to present any evidence that seized money was connected to prohibited criminal offense. State ex rel. Tucumcari Police Dep't v. $104,999.00 in U.S. Currency, 2000-NMCA-084, 129 N.M. 552, 10 P.3d 876, 2000 N.M. App. LEXIS 70 (N.M. Ct. App.), cert. denied, 129 N.M. 519, 10 P.3d 843, 2000 N.M. LEXIS 330 (N.M. 2000).

In consolidated cases involving forfeiture proceedings initiated pursuant to the Controlled Substances Act, 30-31-34, 30-31-35 NMSA 1978, executions on forfeiture judgments did not divest the appellate court of its jurisdiction to consider appeals from the judgments; the failure of the claimant to post a supersedeas bond to stay execution of the judgment, pursuant to Rule 1-062 NMRA, did not affect appellate jurisdiction. In re Forfeiture of Two Thousand Seven Hundred Thirty Dollars & No Cents in Cash, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274, 1991 N.M. LEXIS 148 (N.M. 1991).

In a forfeiture action, the State’s retitling of an automobile without notice to claimant after claimant had filed a timely notice of appeal and motion for stay of execution and supersedeas bond was an improper attempt to remove the res from the jurisdiction of the trial court and did not divest the trial court of its in rem jurisdiction over the case, because summary removal of the res from the jurisdiction of the trial court was not permitted by 30-31-34 and 30-31-35 NMSA 1978. Devlin v. State, 1988-NMSC-102, 108 N.M. 72, 766 P.2d 916, 1988 N.M. LEXIS 332 (N.M. 1988).

Where the county had custody of the vehicle owner’s vehicle pursuant to this section, the vehicle owner did not obtain a stay of forfeiture judgment, and the county had executed it by transferring title, the court lacked jurisdiction to hear the vehicle owner’s appeal from an order of default and default judgment forfeiting the vehicle. In re Forfeiture of One 1980 Honda Accord, 1988-NMCA-114, 108 N.M. 274, 771 P.2d 982, 1988 N.M. App. LEXIS 120 (N.M. Ct. App. 1988).

Generally.

Law enforcement agency.

Motor vehicle.

The Controlled Substances Act provision permitting proceeds of the forfeiture and disposal of property seized under the Act to be channeled to the state police bureau of narcotics was rendered constitutional by the passage of the amendment N.M. Const. art XII § 4, that would permit law enforcement agencies to retain proceeds or actual property seized under the Act. The amendment was certified on November 25, 1986, and thus that is the date upon which the provisions in former subsection E of 30-31-35 NMSA 1978 took effect. 1987 N.M. Op. Att'y Gen. No. 87-20, 1987 N.M. AG LEXIS 63.

The district attorney’s office a “law enforcement agency” as the phrase is used in, 30-31-35 NMSA 1978 and, as such, capable of receiving forfeited assets and expending those assets in the enforcement (prosecution) of the Controlled Substances Act, 30-31-1 NMSA 1978 et seq., if the district attorney’s office employs peace officers as authorized by law. The proceeds of forfeited property, however, may not be used to prosecute actions brought under the Controlled Substances Act. 1989 N.M. Op. Att'y Gen. No. 89-32, 1989 N.M. AG LEXIS 15.

When a vehicle is seized, forfeited and sold by the county sheriff’s office pursuant to the Controlled Substances Act, 30-31-1 NMSA 1978 et seq., the proceeds from such sale are required to be deposited in the general fund of the county. 1989 N.M. Op. Att'y Gen. No. 89-32, 1989 N.M. AG LEXIS 15.