2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 31 - Controlled Substances › Section 30-31-35 - Forfeiture; procedure.

The provisions of the Forfeiture Act [Chapter 31, Article 27 NMSA 1978] apply to the seizure, forfeiture and disposal of property subject to forfeiture and disposal pursuant to the Controlled Substances Act.
History:
1953 Comp., § 54-11-34, enacted by Laws 1972, ch. 84, § 34; 1973, ch. 211, § 1; 1975, ch. 231, § 2; 1977, ch. 139, § 1; 1980, ch. 7, § 1; 1981, ch. 66, § 1; 2002, ch. 4, § 15; 2015, ch. 152, § 18.
ANNOTATIONS
The 2015 amendment,
effective July 1, 2015, after "disposal", deleted "under" and added "pursuant to".
Forfeiture of cash.
— State police officers who seize cash under the authority of the Controlled Substances Act are required to comply with the requirements of the Forfeiture Act.
Albin v. Bakas
, 2007-NMCA-076, 141 N.M. 742, 160 P.3d 923, cert. denied, 2007-NMCERT-006, 142 N.M. 16, 162 P.3d 171.
Forfeiture cases are purely
in rem
proceedings.
In re Forfeiture of One 1980 Honda Accord
, 1988-NMCA-114, 108 N.M. 274, 771 P.2d 982 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Jurisdiction.
— In forfeiture cases, execution on the judgment resulting in the removal of the
res
from the control of the district court deprives the court of its
in rem
jurisdiction. An exception to this rule occurs when the
res
is released accidentally, fraudulently or improperly.
In re Forfeiture of One 1980 Honda Accord
, 1988-NMCA-114, 108 N.M. 274, 771 P.2d 982 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
County, by executing on a district court's judgment of forfeiture of an automobile and transferring the title of the vehicle, removed the
res
from the court's control and ended the court's constructive possession of the vehicle.
In re Forfeiture of One 1980 Honda Accord
, 1988-NMCA-114, 108 N.M. 274, 771 P.2d 982 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
When a state entity initiates a forfeiture proceeding, thereby invoking the jurisdiction of the courts of New Mexico, those courts retain
in personam
jurisdiction until all appeals have been exhausted.
Mitchell v. City of Farmington Police Dep't
, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Due process notice requirements.
— The forfeiture provisions of the Controlled Substances Act are penal in nature and consequently no preseizure notice or hearing is constitutionally required, the provision for a hearing within 30 days of seizure being sufficient to satisfy due process standards.
In re One Cessna Aircraft
, 1977-NMSC-007, 90 N.M. 40, 559 P.2d 417 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Hearing required to meet due process.
— The failure of a city ordinance to provide for a hearing for people who lose alleged drug paraphernalia violates the due process guarantee of the constitution. Providing a hearing within 30 days satisfies the due process requirement.
Weiler v. Carpenter
, 695 F.2d 1348 (10th Cir. 1982) (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Jeopardy can attach
in a civil forfeiture proceeding arising under the Controlled Substances Act when the final disposition of the case results in a stipulated dismissal and a loss of a property interest without a judgment of forfeiture.
State v. Tijerino
, 2004-NMCA-039, 135 N.M. 313, 87 P.3d 1095, cert. denied, 2004-NMCERT-003, 135 N.M. 320, 88 P.3d 261.
Double jeopardy rights protected.
— Because civil forfeiture under the Controlled Substances Act is punishment for double-jeopardy purposes under the New Mexico Constitution, all forfeiture complaints and criminal charges for violations of the Controlled Substances Act may both be brought only in a single, bifurcated proceeding.
State v. Nunez
, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Double jeopardy.
— Where the city's forfeiture complaint was filed on June 4, 2001, the stipulated order of dismissal releasing the vehicle to the credit company was entered on August 21, 2001, and the criminal charges against both defendants were not filed until October 1, 2001, there was never a single bifurcated proceeding and if the city and state had combined these cases in a single bifurcated proceeding, there would be no double jeopardy issue.
State v. Tijerino
, 2004-NMCA-039, 135 N.M. 313, 87 P.3d 1095, cert. denied, 2004-NMCERT-003, 135 N.M. 320, 88 P.3d 261.
State's burden of proof in forfeiture proceeding.
— In the forfeiture portion of the trial, the burden of proof is on the state to prove by clear and convincing evidence that the property in question is subject to forfeiture.
State v. Nunez
, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Inability to post supersedeas bond
may not operate to deny the right to a stay of a forfeiture judgment.
Mitchell v. City of Farmington Police Dep't
, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Criminal standards applicable.
— Proceeding under former Narcotic Drug Act (54-7-1, 1953 Comp. et seq.) to declare the forfeiture of a tractor and trailer found to contain a large quantity of amphetamines, notwithstanding such was not a criminal proceeding, was properly gauged by the same standards applicable in a criminal proceeding.
State v. One 1967 Peterbilt Tractor
, 1973-NMSC-025, 84 N.M. 652, 506 P.2d 1199 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Fourth Amendment exclusionary rule is applicable
to forfeiture proceedings.
Albuquerque Police Dep't v. Martinez
, 1995-NMCA-088, 120 N.M. 408, 902 P.2d 563 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Illegal evidence inadmissible.
— If the evidence supporting a forfeiture was obtained by an unconstitutional search and seizure, that evidence would be inadmissible and would necessitate reversal of the judgment of forfeiture.
State v. One 1967 Peterbilt Tractor
, 1973-NMSC-025, 84 N.M. 652, 506 P.2d 1199 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Waiver of hearing.
— Since the defendant opted for silence to protect his right against self-incrimination, he waived his right to a timely hearing following seizure.
State ex rel. Albuquerque Police Dep't v. One Black 1983 Chevrolet Van
, 1995-NMCA-082, 120 N.M. 280, 901 P.2d 211 (decided under prior law,
see now
Section 31-27-1 NMSA 1978).
Term "law enforcement agency"
used in this section may include a district attorney's office. 1989 Op. Att'y Gen. No. 89-32 (opinion rendered under prior law,
see now
Section 31-27-1 NMSA 1978).
Disposition of forfeited properties.
— Moneys or other properties do not have to revert to the general fund under this provision provided the moneys or other properties are used by law enforcement agencies in the enforcement of the Controlled Substances Act. 1977 Op. Att'y Gen. No. 77-14 (opinion rendered under prior law,
see now
Section 31-27-1 NMSA 1978).
The state police bureau of narcotics may receive the proceeds of forfeitures of property seized before November 25, 1986, even though not disposed of by order of the district court prior to that date. 1987 Op. Att'y Gen. No. 87-20 (opinion rendered under prior law,
see now
Section 31-27-1 NMSA 1978).
Statute requires that the proceeds of vehicles sold by a law enforcement agency must revert to the applicable general fund. 1989 Op. Att'y Gen. No. 89-32 (opinion rendered under prior law,
see now
Section 31-27-1 NMSA 1978).
Law reviews.
— For note, "Criminal Procedure - Civil Forfeiture and Double Jeopardy: State v. Nunez," see 31 N.M.L. Rev. 401 (2001).
For note, "Criminal Procedure Civil Forfeiture and Double Jeopardy: State v. Nunez," see 31 N.M. L. Rev. 401 (2001).
For note and comment, "Complying with Nunez: The Necessary Procedure for Obtaining Forfeiture of Property and Avoiding Double Jeopardy after State v. Esparza," see 34 N.M. L. Rev. 561 (2004).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 25 Am. Jur. 2d Drugs, Narcotics and Poisons §§ 191, 206.
Validity and construction of provisions of Uniform Controlled Substances Act providing for forfeiture hearing before law enforcement officer, 84 A.L.R.4th 637.
Effect of forfeiture proceedings under Uniform Controlled Substances Act or similar statute on lien against property subject to forfeiture, 1 A.L.R.5th 317.
Forfeitability of property, under Uniform Controlled Substances Act or similar statute, where property or evidence supporting forfeiture was illegally seized, 1 A.L.R.5th 346.
Application of forfeiture provisions of Uniform Controlled Substances Act or similar statute where drugs were possessed for personal use, 1 A.L.R.5th 375.
Delay in setting hearing date or in holding hearing as affecting forfeitability under Uniform Controlled Substances Act or similar statute, 6 A.L.R.5th 711.
Forfeiture of personal property used in illegal manufacture, processing, or sale of controlled substances under § 511 of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS § 881), 59 A.L.R. Fed. 765, 109 A.L.R. Fed. 322.
Delay between seizure of personal property by federal government and institution of proceedings for forfeiture thereof as violative of fifth amendment due process requirements, 69 A.L.R. Fed. 373.
What constitutes establishment of prima facie case for forfeiture of real property traceable to proceeds from sale of controlled substances under § 511(a)(6) of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCA § 881(a)(6)), 146 A.L.R. Fed. 597.
28 C.J.S. Drugs and Narcotics § 6 et seq.