ALBUQUERQUE (KRQE) – The aim of the law is simple enough, but how the debate surrounding it is plenty complicated. Under Albuquerque’s DWI forfeiture ordinance, if a person with at least one drunk driving conviction is arrested for a subsequent DWI, the city takes the car. That applies even if that car doesn’t belong to the person behind wheel.
And that’s where things get tricky.
In November, a district court judge ruled Albuquerque’s DWI forfeiture law unconstitutional saying it didn’t give drivers who truly didn’t know that their friend or family member was driving their car drunk enough protections.
Part of the problem is language in the city ordinance that appears to preclude the city hearing officer from considering the so-called “innocent owner” defense, limiting them to determining whether APD had probable cause to arrest the driver for DWI.
When city councilor Diane Gibson was looking into expanding what APD could do with the cars the city ultimately forfeited, allowing them to be used as bait cars, she also dove into that issue.
Gibson’s introduced a proposal that attempts to clean up any constitutional issues. As written, it expands what city hearing officers can consider and expands the circumstances where a car’s owner can be deemed an innocent owner. It would allow a car owner to claim that they “could not have reasonably anticipated” that the car would be driven drunk as a defense, something that’s not currently covered.
“Although it’s not my favorite ordinance, it’s one that’s on the books and it’s one that’s used fairly frequently,” Gibson said. “I want it to be as effective and as fair to everyone as possible.”
But the changes her bill has proposed has sparked some worries.
“To have something that sort of allows the wiggle room, it’s concerning,” said Linda Atkinson with the DWI Resource Center.
Atkinson says often times, family members and friends enable drunk drivers to keep drinking and driving by giving up their keys to them too easily. Atkinson says while there are some cases of truly innocent owners, having punishment stick when warranted is needed. She worries
“It really helps people get out of the enabling role if the consequences stay strictly with that person,” Atkinson said.
But Diego Esquibel, one of the attorneys handling a class action lawsuit against the city over the DWI forfeiture ordinance, says Gibson’s changes fall short.
“It doesn’t do enough to protect the people who are truly innocent and there’s more of them then I think the city or the city attorneys or anyone wants to recognize,” Esquibel said. “They’re not bad people. Some of them were lied to by family members, by friends.”
Esquibel says APD has a direct financial interest in seeing forfeitures go through and is currently too involved in the process. In addition, he says the process is often slanted too heavily against owners looking to get their cars back.
“Taking property from somebody is a big deal and it’s not something that you should tread on lightly,” Esquibel said.
The bill was set to be heard at a city council committee on Monday but was deferred because City Attorney David Tourek had concerns over some of the language in the bill. Gibson says it could be heard again a month from now.
Tourek declined to answer questions on where his office stands on Gibson’s proposal or what language it was looking to tweak.