31-27-4. Forfeiture; conviction required; seizure of property; with
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/nm/chapter-31-criminal-procedure/article-27-forfeiture/31-27-4·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
process; without process.
A. A person's property is subject to forfeiture pursuant to state law if:
(1)the person was arrested for an offense to which forfeiture applies;
(2)the person is convicted by a criminal court of the offense; and
(3)the state establishes by clear and convincing evidence that the property is subject to forfeiture as provided in Subsection B of this section.
B. Following a person's conviction for an offense to which forfeiture applies, a court may order the person to forfeit:
(1)property the person acquired through commission of the offense;
(2)property directly traceable to property acquired through the commission of the offense; and
(3)any instrumentality the person used in the commission of the offense.
C. Nothing in this section shall prevent property from being forfeited by the terms of a plea agreement to a felony that is approved by a court or by other agreement of the parties to a criminal proceeding.
D. Subject to the provisions of Section 31-27-5 NMSA 1978, at any time, at the request of the state, a court may issue an ex parte preliminary order to seize property that is subject to forfeiture and for which forfeiture is sought and to provide for the custody of the property. The execution on the order to seize the property and the return of the property, if applicable, are subject to the Forfeiture Act and other applicable state laws. Before issuing an order pursuant to this subsection, the court shall make a determination that:
(1)there is a substantial probability that:
(a)the property is subject to forfeiture;
(b)the state will prevail on the issue of forfeiture; and
(c)failure to enter the order will result in the property being destroyed, removed from the state or otherwise made unavailable for forfeiture; and
(2)the need to preserve the availability of the property through the entry of the requested order outweighs the hardship to the owner and other parties known to be claiming interests in the property.
E. Property subject to forfeiture may be seized at any time, without a prior court order, if:
(1)the seizure is incident to a lawful arrest for a crime or a search lawfully conducted pursuant to a search warrant and the law enforcement officer making the arrest or executing the search has probable cause to believe the property is subject to forfeiture and that the subject of the arrest or search warrant is an owner of the property;
(2)the property subject to seizure is the subject of a previous judgment in favor of the state; or
(3)the law enforcement officer making the seizure has probable cause to believe the property is subject to forfeiture and that the delay occasioned by the need to obtain a court order would result in the removal or destruction of the property or otherwise frustrate the seizure.
History: Laws 2002, ch. 4, § 4; 2015, ch. 152, § 4; 2019, ch. 133, § 3.