.......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... ..........

Copyright © 2015 Albuquerque Journal

Heather Bitsillie drank four “hurricane drinks” and a few beers before driving south on San Mateo in a 2006 Kia Sorrento on April 1 and sideswiping a car, sending the Kia rolling into another lane and striking another vehicle, according to a criminal complaint.

Albuquerque police arrived and arrested Bitsillie on aggravated drunken driving and other charges. They also seized the Kia under an ordinance that allows the city to take the vehicle used by anyone arrested on suspicion of DWI if they have been charged with drunken driving before, or anyone caught driving with a revoked license because of a DWI.

ADVERTISEMENTSkip

................................................................

But there was a problem.

Claudeen Crank, an Albuquerque woman who said she has never heard of Bitsillie and has never been arrested for drunken driving, owned the small SUV.

The day of the crash, Crank said she was on her way home from a vacation. The only person who had access to her SUV was a mechanic hired to work on it while she was away, and she has no idea how the vehicle ended up in Bitsillie’s possession.

Still, Crank was faced with administrative, tow and storage fees, a round of negotiations with an assistant city attorney and police officer, and possibly a hearing in front of an administrative judge if she wanted her vehicle back.

So what was created as a way to curb repeat drunken drivers has, in some cases, resulted in people without any record of drunken driving paying high fees and going weeks or months without their vehicles.

She’s not alone

Earlier this month, the city scheduled 14 hearings in one week for owners whose vehicles were recently seized under the ordinance. Of those cases, 10 owners weren’t driving the car at the time it was seized. In some of those cases, the owners said the vehicles were stolen or taken by a relative without permission, according to city documents.

“Half the vehicles (seized) are not owned by the drunks we take them from,” said Stan Harada, the chief administrative hearing officer for the city.

Of the four owners who were driving the cars when they were seized, one man had seven prior drunken-driving convictions and had been arrested on suspicion of No. 8. The three other owners all had at least one drunken-driving arrest.

City officials said they are re-evaluating the ordinance to see how it will be affected by legislation recently signed into law by the governor that would end a practice in which police seize money or other assets suspected of being involved in a crime without a conviction, or sometimes without even filing formal charges.

Supporters of the new legislation argue that property can only be seized upon conviction once the law goes into effect – an argument disputed by some involved in Albuquerque’s vehicle seizure program.

Under the current ordinance, since 2010 the city has seized 8,369 vehicles and collected more than $8.3 million, an average of about $1,000 from every case, according to city documents.

Mayor Richard Berry and Chief Administrative Officer Rob Perry said the ordinance improves public safety and punishes repeat drunken drivers.

“It gives the City an opportunity to prevent the loss of one more mother, daughter, father, son or loved one being taken too soon due to the drastic consequences of DWI,” Celina Espinoza, a spokeswoman for Albuquerque police, said in an email.

‘Tried to do the right thing’

Marcial Gonzales is a 26-year-old with a new job and new apartment in Albuquerque. But now he’s living at his mother’s house in Los Lunas and struggling to get to work because the city has his car.

In early April, Gonzales was out with friends Downtown having drinks. When it came time to go home, one of his friends offered to drive Gonzales’ car home.

The friend hadn’t been drinking, because he was on probation from a previous DWI. Gonzales said he had no idea his friend was only allowed to operate vehicles with an ignition interlock device.

After being stopped by police, the car was seized.

Once a vehicle has been seized and after paying a $50 administrative fee, the vehicle owner can meet behind closed doors with an assistant city attorney and a police officer to negotiate the release of the car. The city didn’t comment on the negotiations and wouldn’t allow the Journal to observe them, but several vehicle owners who had them this month described the meetings.

Gonzales said the attorney and police officer gave him three options: pay a fee of $850 and agree to keep a boot on his car for 30 days; hire an attorney and fight the city in District Court, which they said would take six months to a year while his car racks up daily storage fees; or give his car to the city.

“I tried to explain myself, and I felt like I was being bullied,” Gonzales said. “I tried to do the right thing by getting a designated driver, and now I’m stuck living at my mom’s house.”

‘Felt like I was robbed’

Paula-Marie Herbert, a 28-year-old graduate student at the University of New Mexico, said she was given the same three options. Her car was seized this month because she loaned it to her boyfriend, who ran a red light. He was prohibited from driving a car without an interlock device.

Herbert said she knew her boyfriend had an interlock license, but she didn’t know that she could be faced with hefty fines and a long stretch without her car if she loaned it to him.

Herbert grew up in Naschitte, a small Navajo chapter along U.S. Highway 550 northwest of Albuquerque. She said she has seen the aftermath of horrific drunken-driving crashes on that highway and worries about her mother, who drives it regularly. She was friends with two teenage sisters from the town, Del Lynn Peshlakai and Deshauna Peshlakai, who were killed by a drunken driver in Santa Fe in 2010.

“I’m the biggest advocate for not drinking and driving,” Herbert said. “I know this (seizure ordinance), and I was in favor of it until it happened to me … There has to be something more efficient than this. I feel like this is another way to keep people down.”

Herbert and Gonzales, who have never been arrested on suspicion of DWI, each paid the $850 in fees last week and agreed to keep their cars locked with a boot for 30 days.

Jose Chavez Jr., another man who has never been arrested on DWI charges, said he was also given the same three options, but his fee was $1,200 and the boot would have to stay on for 90 days. Chavez’s car was seized because he loaned it to his friend’s aunt when she asked to borrow it to pick up her grandchildren.

Chavez said he thought he was being a gentleman. He said he didn’t know her license had been revoked for a DWI.

He reluctantly signed his vehicle over to the city earlier this month because, he said, he couldn’t afford to pay the $1,200 fee or the daily fees and attorney it would take to fight back.

“They left us no other option,” Chavez said. “I felt like I was robbed. They legally robbed me.”

‘Innocent owners’

A provision in the city’s ordinance exempts “innocent owners” from being affected by the seizure program, but it’s not clear when that provision applies. Of all the seizure cases scheduled two weeks ago, no one reached an agreement to have the vehicle returned without first paying a fee of at least $850 and agreeing to have the car booted, according to city documents.

Espinoza said the city’s administrative hearing staff have the ability to waive fees for innocent owners. Harada said those types of cases make up a small percentage of the seizures, and the key factor in determining to waive fees is if the owner has filed a theft report prior to the seizure.

Willard Davis, an administrative judge on contract for the city, said that if a person loans a car to someone “who has a propensity to drink” alcohol, that owner would likely not be entirely innocent if the person gets a DWI. And if an owner makes it easy for a relative to find their keys, that could also lead to a seizure.

Davis described an Albuquerque mother whose car was seized because, after working a night shift, she went to sleep and left her car keys in plain view of her son, who she knew had prior drunken-driving arrests. Her car was seized after the son took it and was arrested for DWI.

“Her entire proffer of evidence was that she needed the car to take care of her grandkids,” Davis said. “You have to exercise good judgment. You don’t leave your keys out where someone could get them. These cases break my heart, but I have to make a decision based on the facts.”

Davis said it’s not unusual for a car to be seized after a relative who doesn’t own the vehicle is caught driving while intoxicated or without a license.

In the city’s administrative offices, there is a small room where negotiations for vehicle releases take place, and Davis said it’s not uncommon to hear owners wail and cry as they come to terms with losing a vehicle or having to pay hundreds of dollars or more to get it back.

“Those excuses, you hear them over and over again,” he said. “People come in here and say things that we’ve heard so many times before.”

Harada said the seizure program in Albuquerque is an important tool in the fight against drunken driving.

“What this program tries to say is get your head out of your ass and realize a car can be just as dangerous as a gun,” he said. “As an adult, you are supposed to manage your property in a responsible way. … Victims die at the other end.”

‘Victim of this scam’

After spending a day trying to track down the man she hired to work on her vehicle, Crank called police to report it stolen. That’s when she learned it had been involved in a drunken-driving crash and seized.

To get her car back, Crank said she would have had to pay a $50 fee to hold an administrative hearing plus tow and storage fees and whatever was decided after her negotiation.

Espinoza said police officers involved in Crank’s case had recommended having the fees waived, but Crank said she was told to pay at least a couple hundred dollars. Crank said the vehicle was totaled and she only had liability insurance, so she would only be able to sell parts for several hundred dollars if she got it back.

She was also out of town again on the day her administrative hearing was scheduled, and she said the city wouldn’t allow her to reschedule without incurring several weeks of additional storage fees.

Crank elected to sign ownership of the mangled vehicle over to the city.

“I not only got hit from the accident, but I’m also a victim of this scam,” Crank said. “I ended up just having to sign it away.”

End of the road?

Opponents of civil asset forfeiture said cases like the ones described above are coming to an end in Albuquerque and New Mexico. Gov. Susana Martinez has signed legislation that would require a conviction before the authorities take someone’s property.

But Eric Locher, an assistant attorney for the city, said the city plans to continue to take vehicles under city ordinance after the law goes into effect.

Perry said officials have asked the city legal department to analyze the legislation, which could lead to adjustments to the seizure program.

“There seems to be a good deal of ambiguity in the law,” Perry said. “We’re trying to work with (the city) legal (department) to get an opinion of what we should be doing with repeat DWI offenders.”

Berry said he agrees philosophically with the recently passed legislation, but the city will have to weigh that against public safety concerns that repeat drunken drivers pose. He did not address any specific seizure cases or the fact that many owners who have never been arrested on a drunken-driving charge have had to deal with vehicle seizures.

Davis contends that the new law is a state law that only applies to criminal cases and will have no bearing on the city’s vehicle seizure program. He said the vehicle seizures are a “civil forfeiture” and the new legislation only pertains to “criminal forfeiture,” a point supporters of the new law dispute.

City officials said the millions of dollars collected as part of seizures went back into the seizure program to pay for the salaries of attorneys and other staff involved with the seizures. Any remaining funds go to DWI prevention and education.

The cities of Albuquerque, Santa Fe and Las Cruces and Bernalillo County are among the places in New Mexico that have a vehicle seizure program. Rio Rancho is trying to put a similar ordinance in place that is set to go into effect July 1.

Steven Robert Allen, the policy director for the ACLU in New Mexico, said despite the city’s argument, vehicle seizure programs like Albuquerque’s will end in July.

Allen pointed to a line in the new law that states the purpose of the bill is to “ensure that only criminal forfeiture is allowed in the state.” The law also says that any revenue obtained from a forfeiture goes to the state, not a local government.

“It’s crystal clear,” he said. “This will have to stop.”

DWI Seizure Document – Case 1

DWI Seizure Document – Case 2

DWI Seizure Document – Case 3