2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 27 - Forfeiture › Section 31-27-5 - Notice of intent to forfeit; service of process.

A. Within thirty days of making a seizure of property or simultaneously upon filing a related criminal indictment, the state shall file a notice of intent to forfeit or return the property to the person from whom it was seized. The notice shall include:
(1) a description of the property seized;
(2) the date and place of seizure of the property;
(3) the name and address of the law enforcement agency making the seizure;
(4) the specific statutory and factual grounds for the seizure;
(5) whether the property was seized pursuant to an order of seizure, and if the property was seized without an order of seizure, an affidavit from a law enforcement officer stating the legal and factual grounds why an order of seizure was not required; and
(6) in the notice, the names of persons known to the state who may claim an interest in the property and the basis for each person's alleged interest.
B. The notice shall be served upon the person from whom the property was seized, the person's attorney of record and all persons known or reasonably believed by the state to claim an interest in the property. A copy of the notice shall also be published on the sunshine portal until the forfeiture proceeding is resolved.
History:
Laws 2002, ch. 4, § 5; 2015, ch. 152, § 6; 2019, ch. 133, § 5.
ANNOTATIONS
The 2019 amendment,
effective April 2, 2019, revised the notice procedures related to forfeiture proceedings; in the section heading, deleted "complaint of forfeiture" and added "Notice of intent to forfeit"; in Subsection A, in the introductory paragraph, after "the state shall file a", deleted "complaint of ancillary forfeiture proceedings" and added "notice of intent to forfeit", and after "from whom it was seized.", deleted "A complaint of ancillary forfeiture proceedings" and added "The notice", in Paragraph A(6), after "in the", deleted "complaint caption and in the complaint" and added "notice"; and in Subsection B, after "The", deleted "complaint" and added "notice", after "A copy of the", deleted "complaint" and added "notice", and after "shall also be published", deleted "at least three times in a newspaper of general circulation in the district of the court having jurisdiction or".
Applicability.
— Laws 2019, ch. 133, § 13 provided that the provisions of the Forfeiture Act apply to seized and abandoned property in the possession of a law enforcement agency or the state treasurer on and after April 2, 2019.
Temporary provisions.
— Laws 2019, ch. 133, § 11 provided that the New Mexico supreme court shall issue procedural court rules to implement the provisions of this act.
Laws 2019, ch. 133, § 12 provided that abandoned property in the possession of a law enforcement agency or the state treasurer on April 2, 2019 shall be disposed of pursuant to Section 29-1-14 NMSA 1978.
The 2015 amendment,
effective July 1, 2015, amended the procedures for service of process on a complaint of forfeiture; in Subsection A, after "making a seizure", added "of property or simultaneously upon filing a related criminal indictment", after "file a complaint", added "ancillary", after "forfeiture", added "proceedings" in two places, and after "A complaint of", added "ancillary"; in Paragraph (5) of Subsection A, deleted "if" and added "whether", after "seizure", deleted "the sworn application of the law enforcement officer for the order"; in Paragraph (6) of Subsection A, added "in the complaint caption and in the complaint", and after "property", deleted "set forth in both the caption and in the complaint"; in Subsection B, after "property was seized", deleted "and, if that person is a criminal defendant, upon", after "attorney of record and", deleted "upon", after "shall also be published", deleted "no less than" and added "at least", and after "jurisdiction", added "or on the sunshine portal until the forfeiture proceeding is resolved".
Triggering event under former 31-27-5(A) NMSA 1978.
— Under 31-27-5(A) NMSA 1978 (2002), the state was required to file a forfeiture complaint within thirty days of making a seizure, that is, within thirty days of when the state first interfered with a person's possessory interests in his or her property.
State v. Benally
, 2016-NMSC-010,
aff'g
2015-NMCA-053, 348 P.3d 1039.
Where law enforcement officers seized, impounded and sealed a vehicle belonging to defendant, officers "seized" the vehicle and also made a seizure of the contents of the vehicle because it deprived defendant of his possessory interests in them; where officers filed a forfeiture complaint thirty-four days after seizing defendant's property, but within thirty days of discovering a large amount of currency in defendant's vehicle, the forfeiture complaint was untimely because the state, under the former version of the statute, was required to file the forfeiture complaint within thirty days of when the state first interfered with defendant's property interests in the contents of the vehicle, including the money subject to the forfeiture complaint.
State v. Benally
, 2016-NMSC-010,
aff'g
2015-NMCA-053, 348 P.3d 1039.
Triggering event for 30-day time limit.
— The legislature intended forfeiture complaints to be filed within thirty days of the date the state takes possession of the subject property, rather than when the property subject to forfeiture may have been discovered.
State v. Benally
, 2015-NMCA-053, cert. granted, 2015-NMCERT-005.
Where officers impounded defendant's vehicle, searched the vehicle six days later and discovered certain property subject to forfeiture, filed a complaint for forfeiture 28 days after discovering the subject property, but 34 days after seizing the vehicle which contained the subject property, the court of appeals held that because the officers meaningfully interfered with defendant's possessory interests, the impoundment of the vehicle was a seizure of the vehicle, and the contents of the vehicle were also seized by virtue of being in the impounded vehicle, and therefore the thirty-day time limit began to run when the officers impounded defendant's car and its contents, rather than when the subject property was discovered, the state failed to file a complaint for forfeiture within thirty days of the seizure and the district court properly dismissed the forfeiture action.
State v. Benally
, 2015-NMCA-053, cert. granted, 2015-NMCERT-005.