If Santa Fe police believe you're driving drunk, a potential heap of trouble is still headed your way—but, for now, that won't include saying goodbye to your car, possibly forever.
That marks an about face for the city, announced at Wednesday night's council meeting by City Attorney Erin McSherry. For years, Santa Fe has stuck by its so-called DWI vehicle seizure program, despite lawsuits, claims of constitutional violations and even a federal judge's ruling earlier this year that cast doubt on the program's legality.
But the change in tack didn't come by way of a new city administration and its top lawyer correctly reading a shift in the wind.
Instead, McSherry was a responding to a 23-page, Dec. 5 order from the state Court of Appeals that says the city of Albuquerque's seizure program—which is nearly identical to Santa Fe's—violates a state law that was substantially beefed up in 2015.
The New Mexico Forfeiture Act allows law enforcement to take people's property, sell it and hand the money over to the state only after a conviction in, for example, a DWI case. The law, which Gov. Susana Martinez signed to the surprise of some civil liberties advocates, goes further, saying the state must prove that the owner of the property would have known it was going to be used in the commission of a crime for the state to seize it.
Albuquerque, Santa Fe and other New Mexico cities and counties have been taking away people's cars after a DWI arrest, but before conviction, selling those vehicles and pocketing the cash from the sales. Vehicles have been seized and sold in many cases in which the owner wasn't even the one allegedly driving drunk.
These cities and counties have said essentially that the state law doesn't apply to their local ordinances—a legal argument outgoing Appeals Court Judge Stephen French, who was joined by judges Linda Vanzi and Hank Bohnhoff, roundly rejected in his ruling.
French's order could have wide-ranging implications for cities and counties around the state.
Speaking of the Appeals Court's ruling, McSherry told councilors: "The conclusions in that case were extremely broad, so my office has recommended a moratorium on our program for now. There's a number of legal options that we have to move forward, but for now we have recommended to the Santa Police Department that we put a moratorium on the program. So, any forfeitures that did not conclude before the 5th of December, last week, we have recommended that we cease action on those."
That'll put a dent in the city's bank account.
In 2017, Santa Fe sold 145 vehicles at auction under its seizure ordinance, which allows the city to take someone's vehicle after a first DWI arrest, regardless of whether it resulted in a conviction. In 2016, 91 cars went to the highest bidder.
SFPD could not immediately provide figures for 2018, but a city spokesman said anyone whose vehicle forfeiture case was finalized before Dec. 5—when the Appeals Court ruling came down—is out of luck. But those whose cases were pending as of that date can retrieve their vehicles if they show the city proof of insurance and registration, then pay the original towing fee.
Santa Fe County has used a similar, though slightly less draconian ordinance. It required two prior DWI convictions—or a charge of driving on a revoked license due to a DWI arrest—before deputies could snatch someone's car after arresting them on suspicion of drunken driving.
The county suspended its seizure program on July 25, spokesman Juan Rios tells SFR, after a federal judge in Albuquerque ruled that such programs were unconstitutional. The county's seizure ordinance "will not be reinstituted in any form," Rios writes in an email.
The city of Albuquerque has 30 days from the date of the Appeals court decision to decide whether it'll appeal to the state Supreme Court, a choice that still has not been made, according to a spokeswoman for Mayor Tim Keller. Albuquerque City Attorney Steve Aguilar did not respond to a request for an interview. The spokeswoman did not answer questions about whether police in Albuquerque will continue seizing vehicles, but writes in an email that "APD is evaluating whether this decision totally prohibits seizing vehicles when making arrests for certain offenses … "
For 42-year-old Wilfredo Espinoza of Albuquerque, fighting to get his white 2004 Acura RSX back has been a three-year slog.
He was arrested in 2015 on suspicion of DWI. Albuquerque police snatched the Acura. Espinoza fought the charge all the way to trial, where he was convicted and sentenced to a night in jail, plus community service.
Espinoza, who works in retail, tells SFR he considers himself one of the lucky ones.
"I went to trial, I lost, and I accepted the consequences," he says in a telephone interview. "I had another car, thank goodness, so I could get to work. It still has an [alcohol-sensing ignition interlock device] on it, but at least I could still get around. But that Acura got left out to dry in the APD impound lot for three years. I haven't seen it since. This would've been a total nightmare if I hadn't had an extra vehicle."
Espinoza paid the insurance on the Acura for a year, in the hopes he'd get it back, but eventually relented and let the policy lapse. Then he hooked up with Tom Mescall and Phillip Baca, Albuquerque attorneys and longtime critics of DWI vehicle seizure programs.
They filed suit on his behalf, seeking to have the Albuquerque seizure ordinance declared in violation of state law and to force officials to give Espinoza his Acura back.
"You want to battle. You want your property back. The whole thing is so unfair," Espinoza says. "But nobody wants to fight the city, and almost nobody really can. They're Goliath, and I'm David over here throwing little rocks."
He lost his case in state District Court, which further dispirited him. But Espinoza says Mescall and Baca, basically working for free, kept pushing.
"This is a complete shutdown of all these programs in the state," Mescall tells SFR, speaking of the Appeals Court's decision. "Things are changing. Even the US Supreme Court has been revisiting whether civil forfeitures are constitutional. So this is a very significant opinion and victory for New Mexico."
Mescall says Espinoza was fortunate in that he had another vehicle. But he acknowledges that in cities like Albuquerque and Santa Fe that don't have robust public transportation systems, many people whose vehicles were seized under local ordinances suffer stiffer consequences such as loss of employment, access to child care and other hardships.
"It's really stressful," he says. "It's next to impossible to get around the way you need to if you don't have a car. We really did this [case] for the people."
Mescall would know.
"We have been watching this day in and day out for years, with our clients and with all kinds of people," he says. "And with [Espinoza's case] we just decided, this needs to stop now."
Any appeal would be up against some unambiguous language from French, the Appeals Court judge who shot down Albuquerque's seizure program.
"Because the Legislature intended to eliminate civil forfeiture and the Ordinance allows for it, and because the procedure set forth in the Ordinance are different from and contrary to the procedures outlined in the [New Mexico Forfeiture Act], we conclude that the Ordinance is so inconsistent with the terms of the NMFA that the NMFA is the equivalent of an express denial of the City authority to enforce the Ordinance," he wrote.
Editor's Note: This story has been updated to include responses from the Santa Fe County Sheriff's Department and Albuquerque Mayor Tim Keller's administration.