FORFEITURE LAW SCALED BACK

The state Supreme Court on Thursday broadened the constitutional
protections for people arrested for drug trafficking by making it harder
for state and local governments to seize their cars, cash and some other
property. The court's 3-2 ruling led to a sharply critical dissent by two
justices, who described the majority's decision as a "radical departure"
from the legal holdings of the U.S. Supreme Court.

The ruling involves a state law that allows the government to seize
vehicles, aircraft and boats used in drug trafficking as well as any money
involved with the crime.

The state law -- unlike federal forfeiture laws -- does not allow for
seizure of land or a person's residence.

The Supreme Court concluded that civil forfeiture under the state's
Controlled Substances Act is a form of punishment for purposes of New
Mexico's constitutional protections against double jeopardy -- multiple
punishments for the same crime.

In making its ruling, the Supreme Court reversed the drug-related
convictions of several people who had lost vehicles or cash in forfeiture
proceedings. The court also upheld the dismissal of criminal charges of
other people who had lost cars or money by forfeiture.

Currently, governments can quickly bring a civil forfeiture action to seize
cars and cash after a person is arrested on a drug case. Then criminal
charges are brought and decided later.

"We hold that the New Mexico Double Jeopardy Clause forbids bringing
criminal charges and civil forfeiture petitions for the same crime in
separate proceedings," the court said in a 41-page opinion written by
Justice Gene Franchini.

Chief Justice Pamela Minzner and Court of Appeals Judge Thomas Donnelly
concurred in the opinion.

The court said that forfeiture and criminal drug charges for the same crime
can be brought only in a "single bifurcated proceeding."

In addition, the court said government prosecutors also would face a higher
legal burden of proof in the forfeiture proceedings "to provide by clear
and convincing evidence that the property in question is subject to
forfeiture."

The court said its ruling would be retroactive only to those criminal and
forfeiture cases pending when the opinion was filed. That includes cases
that are pending on appeal in the court system.

Justice Patricio Serna wrote a 27-page dissenting opinion, and Justice
Joseph Baca joined in it.

Serna described the majority's legal analysis as "deeply troubling" as well
as "unprecedented and unsupported; it is also certainly bad policy."

In extending double jeopardy protections in forfeiture proceedings
involving drug money, Serna wrote, "the majority takes the extraordinary
step of elevating the fruits of a crime to the level of a constitutional
interest."

"Thus, the majority holds, as no other court has held and as no justice on
the (U.S.) Supreme Court has advocated, that individuals have a
constitutionally protected property right to the proceeds of the unlawful
sale of illicit drugs."