A. When a law enforcement officer seizes property that is subject to forfeiture, the officer shall provide an itemized receipt to the person possessing the property or, in the absence of a person to whom the receipt could be given, shall leave the receipt in the place where the property was found, if possible.
B. Within five business days of the seizure, the law enforcement officer shall provide notice by personal service or first class mail to all owners of record of the seized property.
C. Following the seizure of property, the defendant in the related criminal matter or another person who claims an interest in the seized property may, at any time before the one-hundred-twentieth day following the filing of the forfeiture action in court, claim an interest in the seized property by a motion requesting the court to issue a writ of replevin. A motion filed pursuant to this section shall include facts to support the person's alleged interest in the seized property.
D. A person who makes a timely motion pursuant to this section shall have a right to a hearing on the motion before the resolution of any related criminal matter or forfeiture proceeding and within sixty days of the date on which the motion is filed.
E. At least ten days before a hearing on a motion filed pursuant to this section, the state shall file an answer or responsive motion that shows probable cause for the seizure.
F. A court shall grant a claimant's motion if the court finds that:
(1) it is likely that the final judgment will require the state to return the property to the claimant;
(2) the property is not reasonably required to be held for investigatory reasons; or
(3) the property is the only reasonable means for a defendant to pay for legal representation in a related criminal or forfeiture proceeding and the law enforcement agency did not make a prima facie showing that the property was stolen or proceeds from or is an instrumentality of a crime.
G. In its discretion, the court may order the return of funds or property sufficient for a defendant to obtain legal counsel but less than the total amount seized. If the court makes such an order, it shall require an accounting. An accounting report of reasonable legal fees held before the resolution of the relevant criminal and forfeiture proceedings shall be held in camera. If the court finds in favor of the state in both the criminal and forfeiture proceedings, the court shall:
(1) hear arguments by the parties as to what portion of the funds or property should be paid to the defendant's counsel and what portion should be forfeited; and
(2) issue an order on how the funds or property shall be distributed.
H. In lieu of ordering the issuance of a writ of replevin, a court may order:
(1) the state to give security or written assurance for satisfaction of any judgment, including damages, that may be rendered in a related forfeiture action; or
(2) any other relief the court deems to be just; provided that the relief does not prejudice an innocent owner, including a secured lienholder.
History: 1978 Comp., § 31-27-4.1, enacted by Laws 2015, ch. 152, § 5; 2019, ch. 133, § 4.
ANNOTATIONSThe 2019 amendment, effective April 2, 2019, revised the procedures related to forfeiture proceedings; added new Subsection B and redesignated former Subsections B through G as Subsections C through H, respectively; in Subsection C, after "at any time before", deleted "sixty days prior to a related criminal trial" and added "the one-hundred-twentieth day following the filing of the forfeiture action in court"; in Subsection D, after "forfeiture proceeding and within", deleted "thirty" and added "sixty"; in Subsection F, in Paragraph F(3), after "criminal or forfeiture proceeding", added "and the law enforcement agency did not make a prima facie showing that the property was stolen or proceeds from or is an instrumentality of a crime"; in Subsection G, in the introductory paragraph, after "property sufficient", added "for a defendant", after "total amount seized", deleted "and it may" and added "If the court makes such an order, it shall", and after "require an accounting", added the remainder of the introductory paragraph, and added new Paragraphs G(1) and G(2); and in Subsection H, in Paragraph H(2), after "deems to be just;", added "provided that the relief does not prejudice an innocent owner, including a secured lienholder".
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.