On the heels of a federal judge's acknowledgement that Albuquerque police violated state and federal law by confiscating vehicles from DWI suspects, spokesmen for the Santa Fe County Sheriff's Office and Santa Fe Police Department tell SFR that they continue running similar programs, in violation of the law.

Both county and city police follow local ordinances that allow seizure of vehicles from certain DWI suspects. The ordinances directly contradict a 2015 state law that says a person must first be convicted of a crime before law enforcement can seize any property that was used in the commission of a crime.

The law also says any revenue gained from selling seized property must be deposited into the state's general fund, rather than kept by the police agency that sold it. But both the county and city ordinances say that police can use the proceeds for enforcement purposes.

And the city's ordinance says SFPD can "keep up to six vehicles per year for official police department purposes."

According to Robert Johnson, an attorney at the Institute for Justice who sued the city of Albuquerque over its DWI car seizure program on behalf of a client, municipalities in New Mexico have been reluctant to abide by the state law.

After it was passed, all the municipalities in New Mexico had this legal theory that the state law doesn’t apply to them because it’s a law for state forfeitures, and they’re not doing state forfeitures because they’re municipalities,” Johnson tells SFR. “That’s just wrong.”

A federal judge agreed. While the legal opinion handed down on March 30 by the District Court of New Mexico did not rule on the plaintiff's damages claim, it acknowledged that Albuquerque violated state law as well as plaintiff Arlene Harjo's constitutional right to due process.

That's because Albuquerque's ordinance, like its counterparts in Santa Fe, requires DWI suspects to prove their innocence prior to a criminal trial in order to get their confiscated property back.

Over the phone, Santa Fe County Undersheriff Ron Madrid tells SFR that his department's seizure of vehicles "doesn't have to do with the conviction," in spite of state law mandating asset seizures come after convictions.

A 2006 county ordinance says a vehicle is subject to forfeiture in Santa Fe County if the person operating it has been convicted "of two prior driving while intoxicated offenses and is arrested for a third or subsequent" intoxicated driving offense, or if the person is driving while their license is revoked because of a DWI arrest.

In order to get their car back, the arrested person has to request a hearing before a county hearing officer, who determines whether the arresting officer had probable cause to seize the vehicle. This standard of proof is much lower than "proof beyond a reasonable doubt" required to convict a person of a crime.

If the hearing officer determines the deputy had probable cause to seize the car, the sheriff's office may put it up for auction. At the county's most recent auction on March 31 in Santa Fe, it sold off 26 vehicles, according to Bentley & Associates, the company that contracts with the sheriff's office to host auctions.

Dawn Bentley, the office manager for the auction company, says Bentley & Associates also has an active contract with the SFPD.

The city's ordinance is more punitive than the county's because it allows police to seize a person's vehicle any time they're arrested on suspicion of DWI, even if it's their first arrest.

SFPD spokesman Greg Gurule says the city continues to seize vehicles from DWI suspects. It auctioned off 145 vehicles in 2017 and 91 in 2016. He directed questions about the ordinance to SFPD's legal department.

Acting City Attorney Geno Zamora tells SFR he has not yet reviewed the ruling, but that his office “will examine it and evaluate.” At publication time, county attorney Bruce Frederick had not returned SFR’s request for comment. 

Whether or not the city and county come into compliance with state and federal law will depend on the courts, says Johnson. “It’s the courts that are going to have to hold the cities to follow state law,” he tells SFR. “That’s the role of judges and the role of courts, to make sure cities follow the law.”