Posted on 08/10/2005 4:18:54 PM PDT by elkfersupper
A District Court judge has struck down an ordinance that would have allowed Albuquerque police to seize vehicles of drivers arrested for the first time on suspicion of DWI.
Judge Theresa Baca cited "serious procedural due process problems" with the city's law, which would have been an extension of an existing statute that allows the city to seize vehicles of DWI suspects who have at least one prior DWI conviction.
The new law didn't require a conviction.
The vehicle would be seized upon arrest of the suspect, who could then contest the seizure with a city hearing officer or enter into an agreement to have an immobilizing "boot" placed on the vehicle for 30 days.
To get the boot removed, offenders would have had to agree to install an ignition interlock on the vehicle for six months or a year.
In "extreme" cases, the city would sell the vehicle at auction.
Currently, with first-time DWI arrests, the vehicle is released when the suspect bonds out and is sober.
Baca granted a permanent injunction in the case, which was brought by the American Civil Liberties Union of New Mexico.
"We're very happy and feel like the judge ruled as we would've liked," said Peter Simonson, executive director of the state ACLU chapter. "This is a big win for us."
Assistant City Attorney Peter Pierotti, who argued the case, said Tuesday's decision is "not the end of this," and did not rule out an appeal.
A rewrite of the ordinance to "address the concerns of the court" may also be in the cards, City Attorney Bob White said.
Linda Atkinson, executive director of the DWI Resource Center, said she wasn't happy with the ruling.
"Do we wait for the second offense if someone has a loaded gun?" Atkinson said. "Of course we don't."
However, she said that because the city can still seize vehicles for second and subsequent offenses, "this isn't an especially big blow" to the fight against DWI.
Baca had granted the ACLU a temporary injunction against the ordinance May 17.
The City Council approved the law April 18, and Mayor Martin Chávez signed it April 27.
The city's aim was to define first-time drunken driving offenders— which make up roughly two-thirds of Bernalillo County's 7,000 annual DWIs— as a nuisance.
Baca said her ruling was on constitutional grounds, and focused primarily on one sentence in the ordinance:
"The city hearing officer shall only determine whether the law enforcement officer had probable cause to seize the vehicle."
The judge said the ordinance didn't spell out what the hearing officer would do to ensure drivers would have a fair, timely and constitutionally mandated hearing.
The suspect had 10 days in which to request a hearing, and the city had 20 days after that in which to schedule it.
Paul Kennedy, who argued for the ACLU, also attacked the ordinance on the grounds that it violated state law prohibiting double jeopardy and excessive fines.
In addition to facing criminal penalties, defendants under the ordinance would also be subject to civil penalties— namely forfeiting their car, he said.
Moreover, Kennedy said, penalizing someone through a car— which could cost up to $90,000— is not proportionate to the maximum 90 days in jail and $500 fine first-time DWI offenders face in Metro Court.
"This is basically a bastardization of New Mexico common law with regards to nuisance," he said. "All you have to do is read this ordinance and the constitutional infirmities just jump out at you."
But Baca tailored her ruling narrowly— leaving the ACLU's other qualms with the ordinance for "perhaps another time."
Simonson said Baca's decision could pave the way for similar rulings in ACLU challenges to other nuisance abatement laws such as cameras on red lights and anti-cruising laws.
Seizing cars for DWI?
Can't wait to see what they move on to next.
Overreaching in the wrong place again. They cant execute people with multiple murder convictions but theyll take our property without due process??hmmnnnn?
Suspicion of DWI. No conviction. 1st offense.
In some cases, the vehicle would be sold by the City before the suspect even gets in front of a judge for the FIRST time.
They don't. They get everything in the car, also.
The same "nuisance abatement" ordinance is used to seize your house if you host (even unknowingly) an underage drinking party, or if some zoning enforcement goon doesn't like the way you maintain your yard, or if you water your grass on the wrong day, burn your fireplace on a "no-burn" night, etc., etc., etc.
In Pennsylvania new rules now say: A 2nd DUI of 0.16 or more will receive 90 days minimum in jail, $1,500 fine and loss of license for 18 months.
The trial attorneys from MADD got that one through because they (attorneys) make so much. The founder of MADD said she has lost control and the attorneys hijacked her reasonable program.
gee, can't put ankle bracelets on child sex offenders but can seize the car of an otherwise sparkling citizen on suspicion of driving intoxicated? Give me a break....this is a stupid law and should have been overturned...how about castration for first time child sex offenders?
Sorry, there's no money be made castrating sex offenders.
Perhaps if they are smoking cigarettes at the time...
Excerpt from warning on NM MVD Website:
You can be convicted of DWI even if the breath test is below the legal limit if it is proven that your ability to drive was impaired to the slightest degree by drugs or alcohol. You should therefore avoid driving with any amount of alcohol or other drugs in your system.
OTHER DRUGS It is illegal to drive while under the influence of any drug, whether it is an illegal drug or a prescription, drug. Some prescription medicines cause drowsiness or disorientation, and should not be used while driving. It is not a defense to the charge of DWI that the drug you were using was prescribed by a doctor.NM MVD
I'm willing to bet that PA has a similar statute, thanks to MADD>
Screwed that up, but you get the gist. Sorry.
ah c'mon, Albuquerque Oysters has a nice ring to it, sure some smart marketer could figure out something...:)
Already the case in Albuquerque, if you get caught by the red light cameras often enough. See the link at post #1.
Typical that those Liberals at the ACLU are supporting drunk drivers.
I happen to agree with the ACLU in this case (OUCH!) and so should you.
True, if you are arrested and accused, nothing much happens unless you have money to pay the various DWI taxes.
I got a dui 25 years ago and until recently was subject to the 2nd dui rough penalty. Recently, some smart judge put a 10 year moritorium (going back in time) limit on that. So my record is now clean and would be judged as a first offender.
I don't mind at all coming down hard on dwi. But the trial attorneys, MADD, found a money fountain and they will take advantage of it. I will say it again, the ACLU got one right.
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