The following are subject to forfeiture pursuant to the provisions of the Forfeiture Act [Chapter 31, Article 27 NMSA 1978]:
A. all raw materials, products and equipment of any kind, including firearms that are used or intended for use in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance or controlled substance analog in violation of the Controlled Substances Act;
B. all property that is used or intended for use as a container for property described in Subsection A of this section;
C. all conveyances, including aircraft, vehicles or vessels that are used or intended for use to transport or in any manner to facilitate the transportation for the purpose of sale of property described in Subsection A of this section;
D. all books, records and research products and materials, including formulas, microfilm, tapes and data that are used or intended for use in violation of the Controlled Substances Act;
E. narcotics paraphernalia or money that is a fruit or instrumentality of the crime;
F. notwithstanding Subsection C of this section and the provisions of the Forfeiture Act:
(1) a conveyance used by a person as a common carrier in the transaction of business as a common carrier shall not be subject to forfeiture pursuant to this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of the Controlled Substances Act;
(2) a conveyance shall not be subject to forfeiture pursuant to this section by reason of an act or omission established for the owner to have been committed or omitted without the owner's knowledge or consent;
(3) a conveyance is not subject to forfeiture for a violation of law the penalty for which is a misdemeanor; and
(4) a forfeiture of a conveyance encumbered by a bona fide security interest shall be subject to the interest of a secured party if the secured party neither had knowledge of nor consented to the act or omission; and
G. all drug paraphernalia as defined by Subsection V of Section 30-31-2 NMSA 1978.
History: 1953 Comp., § 54-11-33, enacted by Laws 1972, ch. 84, § 33; 1975, ch. 231, § 1; 1981, ch. 31, § 3; 1987, ch. 68, § 6; 1989, ch. 196, § 1; 2015, ch. 152, § 17.
ANNOTATIONSThe 2015 amendment, effective July 1, 2015, removed controlled substances from the list of items subject to forfeiture; deleted former Subsection A and added the undesignated introductory phrase "pursuant to the provisions of the Forfeiture Act"; redesignated Subsections B through H as Subsections A through G, respectively; in Subsection A, after "firearms", deleted "which" and added "that"; in Subsection B, after "property", deleted "which" and added "that", and after "Subsection A", deleted "or B"; in Subsection C, after "vessels", deleted "which" and added "that", and after "Subsection A", deleted "or B"; in Subsection D, after "data", deleted "which" and added "that"; in Subsection E, after "money", deleted "which" and added "that"; in the introductory sentence of Subsection F, after "Subsection", deleted "D" and added "C", and after "section", added "and the provisions of the Forfeiture Act"; in Paragraph (1) of Subsection F, at the beginning of the paragraph, deleted "no" and added "a", after "used by", deleted "any" and added "a", after the second occurrence of "carrier", deleted "is" and added "shall not be", and after "forfeiture", deleted "under" and added "pursuant to"; in Paragraph (2) of Subsection F, at the beginning of the paragraph, deleted "no" and added "a", after "conveyance", deleted "is" and added "shall not be", after "forfeiture", deleted "under" and added "pursuant to", after "reason of", deleted "any" and added "an", and after "omitted without", deleted "his" and added "the owner's"; and in Subsection G, after "Subsection", deleted "W" and added "V".
The 1989 amendment, effective July 1, 1989, inserted "including firearms" in Subsection B.
Forfeiture not unconstitutional taking. — Forfeiture under former Narcotic Drug Act (Section 54-7-1, 1953 Comp. et seq.) of tractor and trailer used in transportation of amphetamines did not constitute the taking of property without just compensation. State v. One 1967 Peterbilt Tractor, 1973-NMSC-025, 84 N.M. 652, 506 P.2d 1199.
Nor excessive fine. — Disproportionate ratio between the value of a tractor and trailer which had been carrying amphetamines and the amount of fine imposed for the crime of possession did not render the forfeiture statute unconstitutional as an excessive fine. State v. One 1967 Peterbilt Tractor, 1973-NMSC-025, 84 N.M. 652, 506 P.2d 1199.
Provisions penal in nature. — The forfeiture provisions of the Controlled Substances Act are penal in nature. State v. Ozarek, 1978-NMSC-001, 91 N.M. 275, 573 P.2d 209.
Section to be strictly construed. — Forfeitures are not favored at law, and statutes are to be construed strictly against forfeiture. State v. Ozarek, 1978-NMSC-001, 91 N.M. 275, 573 P.2d 209.
The 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, cert. denied, 120 N.M. 213, 900 P.2d 962.
Forfeiture of pickup truck is civil proceeding. — The forfeiture of a pickup truck under this section, although quasi-criminal and gauged by standards applicable to a criminal proceeding, is a civil proceeding. State v. Barela, 1979-NMCA-156, 93 N.M. 700, 604 P.2d 838, cert. denied, 94 N.M. 674, 615 P.2d 991 (1980), overruled on other grounds by State v. Vigil, 1974-NMCA-065, 86 N.M. 388, 524 P.2d 1004, cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975).
Proof of violation required for forfeiture. — Money seized from defendant's vehicle during a routine traffic stop was not subject to forfeiture in the absence of any evidence that it was seized in connection with the commission of a criminal offense and prohibited by the Controlled Substances Act. State ex rel. Tucumcari Police Dep't v. $104,999.00 in U.S. Currency, 2000-NMCA-084, 129 N.M. 552, 10 P.3d 876, cert. denied, 129 N.M. 519, 10 P.3d 843.
Possession must be for sale. — In order for property to be forfeited under this section, possession of a controlled substance must be for the purpose of sale. State ex rel. Dep't of Pub. Safety v. One 1990 Chevrolet Pickup, 1993-NMCA-068, 115 N.M. 644, 857 P.2d 44, cert. denied, 115 N.M. 602, 856 P.2d 250.
Transportation need not be for purpose of sale. — A vehicle is subject to forfeiture under Subsection D if used to transport an illegal substance, and the transportation need not be for the purpose of sale. State v. Stevens, 1983-NMSC-108, 100 N.M. 577, 673 P.2d 1310.
Nature of burden on owner. — The burden imposed on the owner is the burden of going forward and not the burden of persuasion. State v. Ozarek, 1978-NMSC-001, 91 N.M. 275, 573 P.2d 209.
Shifting the burden. — The owner need only assert that the vehicle was used without his knowledge and consent to shift the burden to the state. State v. Ozarek, 1978-NMSC-001, 91 N.M. 275, 573 P.2d 209.
Interest of innocent co-owner exempt. — An innocent co-owner's interest in a truck seized due to illegal use by the guilty co-owner is exempt from forfeiture. In re Forfeiture of One 1970 Ford Pickup, 1991-NMCA-124, 113 N.M. 97, 823 P.2d 339.
Misdemeanor offenses excluded. — Subsections D and G(3) should be construed together as providing for forfeiture in those trafficking and distribution cases where the crime involved constitutes a felony, and the purpose of Subsection G(3) is to exclude misdemeanor drug trafficking offenses. State ex rel. Dep't of Pub. Safety v. One 1990 Chevrolet Pickup, 1993-NMCA-068, 115 N.M. 644, 857 P.2d 44, cert. denied, 115 N.M. 602, 856 P.2d 250.
Law reviews. — For note, "New Mexico Restricts the Use of Civil Forfeiture: State v. One 1990 Chevrolet Pickup," see 24 N.M.L. Rev. 377 (1994).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Forfeiture of money to state or local authorities based on its association with or proximity to other contraband, 38 A.L.R.4th 496.
Necessity of conviction of offense associated with property seized in order to support forfeiture of property to state or local authorities, 38 A.L.R.4th 515.
Forfeitability of property held in marital estate under uniform controlled substances act or similar statute, 84 A.L.R.4th 620.
Real property as subject of forfeiture under uniform controlled substances act or similar statutes, 86 A.L.R.4th 995.
Timeliness of institution of proceedings for forfeiture under Uniform Controlled Substances Act or similar statute, 90 A.L.R.4th 493.
Forfeitability of property under Uniform Controlled Substances Act or similar statute where amount of controlled substance seized is small, 6 A.L.R.5th 652.
Forfeiture of homestead based on criminal activity conducted on premises - state cases, 16 A.L.R.5th 855.
Validity and construction of state statutes criminalizing the act of permitting real property to be used in connection with illegal drug activities, 24 A.L.R.5th 428.
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.
Validity, construction, and application of criminal forfeiture provisions of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS § 853), 88 A.L.R. Fed. 189.
Seizure or forfeiture of real property used in illegal possession, manufacture, processing, purchase, or sale of controlled substances under § 511(a)(7) of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS § 881(a)(7)), 104 A.L.R. Fed. 288.
Who is exempt from forfeiture of drug proceeds under "innocent owner" provision of 21 USCS § 881(a)(6), 109 A.L.R. Fed. 322.
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.
When does forfeiture of currency, bank account, or cash equivalent violate excessive fines clause of Eighth Amendment, 164 A.L.R. Fed. 591.