§ 24-12-12-18. Authority to remove or relocate vehicles.

A.

Definitions. For purposes of this section:

(1)

"Chief" shall mean the Chief of Police of the municipal police department or his designated representative.

(2)

"Impound" shall mean the towing and storage of a motor vehicle as authorized in this section.

(3)

"Owner" of a vehicle shall mean the registered owner or owners of a vehicle as recorded with the New Mexico department of motor vehicles or similar agency of a state outside New Mexico. Where written notice to the owner is required by this section, such notice shall be given to each registered owner. Where appearance of the owner is required by this section, appearance may be by a person authorized by the owner to appear on his behalf.

(4)

"Sign" shall mean a printed notification to the public giving notice of the possibility of removal of a vehicle by stating that the area is a tow-away zone, or that the violation of the restrictions stated on the sign may result in towing, and the sign must be readily visible from the point of removal.

(5)

"Written Notice" shall mean notice sent by certified mail, return receipt requested, to the last known address of the owner:

a)

When such notice is required under the terms of this section, weekends and holidays shall not be included when calculating the time for mailing notice.

b)

When a vehicle is registered in a state outside New Mexico, the Chief shall make all reasonable and diligent efforts to ascertain the name and address of all registered owners. If the name and address information for an in-state or out-of-state registered vehicle is not available soon enough to meet the time deadlines for mailing written notice, then the notice shall be mailed as soon as possible after the information is received.

c)

As a valid substitute for "written notice" as defined herein, notice may be given by personal service or in any other reasonable manner, so long as actual notice is given to at least one owner within the time limits provided. Notice may be effected by verbal notice to an owner, or to the driver or passenger of a vehicle, if the driver or passenger reasonably appears to have custody of the vehicle with the owner's knowledge and permission. Verbal notice to the owner, driver or passenger shall be valid, however, only if the person so notified is given all the information required in the written notice and the person is given in writing a phone number where the owner, driver or passenger can obtain further information from a municipal employee.

d)

If notice cannot be given per the other provisions of this paragraph, notice shall be given by publication once in a newspaper of general circulation in the community as soon as practicable after reasonable and diligent efforts to give notice as provided elsewhere in this paragraph prove fruitless.(*)

B.

Prohibition of Removal and Relocation. It is unlawful for a municipal officer, or any municipal employee, to remove or relocate, or cause to be removed or relocated, any unattended vehicle from any street, alley or public way within the municipal corporate limits, except as provided in this section.(*)

C.

Impoundment of Vehicles Generally.

(1)

Any vehicle impounded pursuant to this section shall be towed in accordance with state and local law to an authorized private storage facility or an area designated or maintained by the police department or by the municipality. The person authorizing impoundment shall issue signed and dated instructions in writing to the storage facility specifically stating whether the vehicle is to be held for investigation or as evidence, or whether it may be released to the owner after all attendant charges have been satisfied pursuant to Subsection H of this section. If the vehicle has been in storage for over 30 days after written notice is given and no hearing has been requested or the vehicle has not been claimed per the provisions of this section, then the storage facility operator may sell the vehicle per the provisions of applicable state law.

(2)

If any vehicle is about to be removed, relocated or is in the process of being removed or relocated and the owner thereof or his agent appears and claims the vehicle and agrees forthwith to remove it or relocate it, such vehicle shall be delivered to such owner or agent upon demand therefore and upon furnishing satisfactory evidence of identity and ownership or agency. If any such owner or agent shall fail, refuse or neglect to forthwith remove such vehicle, such vehicle shall nevertheless be impounded or relocated. Removal by such owner or agent shall not relieve the offender of liability for any towing costs already incurred or for any fine or penalty for the violation of any law or ordinance for which the vehicle was to be removed or relocated.(*)

D.

Circumstances Permitting Summary Vehicle Impoundment or Relocation.

(1)

Any municipal police officer, or any municipal employee who is authorized to direct traffic or enforce state or local parking or motor vehicle laws, may order the impoundment of any vehicle within the municipal corporate limits, without prior notice to the owner or operator thereof, under the following circumstances:

a)

when any vehicle is left unattended upon any bridge, viaduct, or causeway or in any tube or tunnel where the vehicle constitutes an obstruction or hazard to traffic;

b)

when any vehicle is parked or left standing upon a street, alley, or public way in such a position as to obstruct the normal movement of traffic or in such a condition as to create a hazard to other traffic;

c)

when any vehicle is found upon a street, alley, public way or private property, and an offense report has previously been made that the vehicle has been stolen or a complaint has been filed and a warrant thereon issued charging that the vehicle has been stolen, and the owner is not available to, or cannot, immediately provide for its custody or removal;*

d)

when any vehicle is parked so as to block the entrance to a public or private driveway;

e)

when any vehicle is parked within fifteen (15) feet of a fire hydrant, is illegally parked so as to prevent access by firefighting equipment to a fire hydrant, or is illegally parked in a properly designated fire lane;

f)

when the person or persons in charge of a vehicle are by reason of physical injuries, intoxication, illness or other cause incapacitated to such an extent as to be unable to provide for its custody or removal, and (i) the vehicle is left as described elsewhere in Paragraph 1 of this subsection, or (ii) the location of the vehicle is such that a reasonable person would believe that its owner would desire its relocation or removal. However, nothing in this subparagraph shall prevent a person who is incapacitated and is not intoxicated or otherwise mentally impaired from requiring that the vehicle not be moved if the sole basis for removal is pursuant to part (ii) of this subparagraph;

g)

when the driver or person in control of a vehicle is lawfully taken into custody by a police officer, and said person is unable to immediately provide for the custody or removal of the vehicle, and (i) the vehicle is left as described elsewhere in paragraph 1 of this subsection or (ii) the location of the vehicle is such that a reasonable person would believe that its owner would desire its relocation or removal. However, nothing in this subparagraph shall prevent a person who is taken into custody and is not intoxicated or otherwise mentally impaired from requiring that the vehicle not be moved if the sole basis for removal is pursuant to (ii) of this subparagraph;

h)

when an abandoned, unattended, wrecked, burned or partially dismantled vehicle is creating a traffic hazard because of its position in relation to the street, alley, or public way or its physical appearance is causing traffic to be impeded;*

i)

wherever the use of a street, alley or public way or any portion thereof is authorized by the municipality for a purpose other the normal flow of traffic, or for the movement of equipment, articles, or structures of unusual size, and the parking of any vehicle would prohibit or interfere with such use or movement, and signs giving notice that a parked vehicle may be towed are erected or placed along the street, alley or public way at least 24 hours prior to the removal;

j)

when any vehicle is parked or left standing where stopping is prohibited by ordinance or other state or local law. No vehicle may be removed pursuant to this paragraph unless signs are posted at least 24 hours prior to the removal giving notice that the area is a tow-away zone;

k)

when any vehicle is parked or standing in a manner so as to obstruct necessary emergency services, law enforcement services, the routing of traffic at the scene of a disaster, or when removal is otherwise necessary in the interest of public safety because of any emergency, and moving the vehicle to a legal parking location is impractical. However, the owner or operator of a vehicle so relocated or removed shall not be subject to any relocation, removal or storage charges, if the vehicle is otherwise lawfully parked. Such charges shall be paid by the municipality, except that in the case of emergency utility repairs such charges shall be paid by the utility company seeking removal;

l)

when a vehicle is parked, left unattended or abandoned during a fire, flood, storm or other public emergency which is apt to cause substantial damage to the vehicle, removal is in the best interest of the owner, and moving the vehicle to a safe legal location is impractical;

m)

when a vehicle is either unattended or disabled and loaded with either a dangerous, flammable, combustible or explosive substance which, either by its presence or load conditions is likely to harm the health or safety of the public and moving the vehicle to a safe, legal location is impractical;

n)

when any vehicle is parked in such a manner as to obstruct or interfere with any road, sidewalk or right-of-way maintenance or construction, or any non-emergency utility work, and it is impractical to relocate the vehicle to another point where parking is legal. No vehicle shall be removed unless signs are posted giving notice of the work to be done and the possibility of removal at least 24 hours prior to the removal; or

o)

when a vehicle is parked: on a sidewalk; within an intersection; on a crosswalk; within twenty (20) feet of a crosswalk at an intersection; within thirty (30) feet upon the approach to any flashing beacon, stop sign or traffic control signal located at the side of a roadway; between a safety zone and the adjacent curb or within thirty (30) feet of points on the curb immediately opposite the ends of a safety zone, unless the municipality indicates a different length by signs or markings; within fifty (50) feet of the nearest rail of a railroad crossing; within twenty (20) feet of the driveway entrance to any fire station and if properly signposted on the side of the street opposite the fire station entrance where posted; alongside or opposite any street excavation or obstruction when stopping, standing or parking would obstruct traffic; or on the roadway side of any vehicle stopped or parked at the edge or curb of a street.

(2)

In lieu of towing and impoundment, a municipal police officer, or any municipal employee who is authorized to direct traffic or enforce state or local parking or motor vehicle laws, may relocate or cause to be relocated any vehicle from any street, alley or public way within the municipal corporate limits, without prior notice to the owner or operator thereof when the relocation to a safe, legal location is practical and the vehicle is found under the circumstances set forth in subparagraphs e, k, l, m or n of paragraph 1 of this subsection.(*)

(3)

Whenever a vehicle could be impounded, removed or relocated pursuant to subsection D of this section and the driver of the vehicle is present, the police officer or authorized employee may order the driver to move the vehicle to another location.

E.

Notice and Procedure Following Summary Impoundment or Relocation.

(1)

After a vehicle is towed or relocated pursuant to subsection D of this section, the Chief shall send written notice within 24 hours of the towing to the owner of the vehicle.

(2)

The notice shall contain the following information:

a)

the license plate number, make, type and color of the vehicle;

b)

the location of the vehicle at the time of impoundment or relocation;

c)

a statement that the vehicle has been taken into custody and stored, or a statement that the vehicle has been relocated;

d)

the reason for impoundment or relocation;

e)

the location and telephone number of the storage facility where the vehicle is being kept or the place to which the vehicle was relocated;

f)

a statement that daily storage charges will be assessed in addition to a towing charge if the removal was proper;

g)

a statement that the owner may obtain release of the vehicle by posting bond or paying all amounts due under this ordinance;

h)

a statement that the owner has the right to contest the validity of the impoundment or relocation by requesting in writing a hearing before the municipal judge within thirty (30) days after written notice is given;

i)

a statement that failure to obtain release of the vehicle if impounded will cause it to be sold or otherwise disposed of in accordance with state law; and

j)

a phone number and name or title of a municipal employee from whom the owner can obtain further information.

(3)

The hearing, if requested in a timely manner, shall be held within 120 hours (excluding weekends and holidays) of receipt of the request unless the hearing is continued with the agreement of the owner. The municipal judge's decision shall be limited to:

a)

whether the vehicle was lawfully impounded or relocated for one or more of the reasons set forth in Subsection D of this section and

b)

whether the vehicle, if lawfully impounded, should be released at the City's expense.

Upon receipt of the request for a hearing on the legality of an impoundment, the municipal judge shall notify the storage facility of the hearing and no lien shall be foreclosed by the storage facility as allowed by state law until the judge has ruled on the legality of the impoundment. If the municipal judge finds that the vehicle in question was not lawfully impounded or that the vehicle should otherwise be released at the municipality's expense, he shall issue and date a Certificate of Release, indicating the unlawful impoundment, or the release at municipal expense, or both, and a copy of the release shall be given to the owner of the vehicle. Upon receipt of the owner's copy of such certificate, the authorized storage facility having custody of the vehicle shall release the vehicle to its owner and towing and storage fees shall be paid by the municipality in accordance with arrangements to be made between the municipality and the authorized storage facility. If the owner fails to present such certificate to the authorized storage facility having custody of the vehicle within 24 hours of its receipt, excluding days when the authorized storage facility is not open for business, the owner shall assume liability for all subsequent storage charges. The certificate shall advise the owner of such requirement.

(4)

The decision of the municipal judge may be appealed to the district court.(*)

F.

Abandoned Vehicles.

(1)

Any municipal police officer, or any municipal employee who is authorized to direct traffic or enforce state or local parking or motor vehicle laws, may order the impoundment of any abandoned vehicle within the municipal corporate limits. A vehicle is abandoned if:

a)

the vehicle is parked on or along any street, alley or public way and the vehicle displays no current license plate; or

b)

the vehicle is left unattended on or along any street, alley or public way in the same place for a period of 72 hours without a valid police sticker as defined in paragraph 2 of this subsection.

(2)

The Chief may issue a sticker temporarily permitting street storage, upon application of any owner or agent of an owner for any vehicle which is operable and has a current license plate. Stickers shall expire fifteen (15) days after issuance. No owner, whether an individual, business, corporation, organization, partnership or trust, is entitled to more than four stickers at any time.

(3)

When a vehicle is abandoned on or along a street, alley or public way under circumstances which do not allow summary removal or relocation pursuant to subsection D of this section, a notice shall be attached to the vehicle in a manner which is readily visible containing the following information:

a)

the date and time the notice is affixed to the automobile;

b)

a statement that, pursuant to this section of this ordinance the vehicle will be considered abandoned and may be towed and stored at the owner's expense if it is not removed within ten (10) days of the time that the notice is affixed;

c)

a statement that if the vehicle is impounded and no hearing is requested or it is not claimed, it can be sold after thirty (30) days as provided in state law;

d)

a statement that the owner has the opportunity to challenge the proposed action at a hearing if a written request is submitted to the municipal judge within 72 hours after notice is given as provided in paragraph 4 of this subsection;

e)

the telephone number where additional information can be obtained; and

f)

the identity of the person affixing the notice.

(4)

Written notice containing the same information specified in paragraph 3 of this subsection plus the location and a description of the vehicle shall be mailed to the owner of the vehicle within 24 hours after the notice is affixed. However, if written notice is not given within 24 hours after the notice is placed on the vehicle, then the ten (10) day waiting period shall be extended the amount of time between the placing of notice on the vehicle and the giving of written notice.

(5)

Upon timely receipt of a request for a hearing, the municipal judge shall order a delay of the impoundment of the vehicle until after the hearing.

(6)

The hearing, if requested in a timely manner, shall be held within 120 hours (excluding weekends and municipal holidays) of receipt of the request, unless the hearing is continued with the agreement of the owner. At the hearing, the municipal judge shall only determine whether the vehicle is or is not abandoned.

(7)

If the municipal judge determines that the vehicle is abandoned, he shall so notify the Chief, who shall cause the impoundment of the vehicle, unless the vehicle is removed within 24 hours of the judge's decision.

(8)

If the vehicle is removed pursuant to paragraph 7 of this subsection, a person challenging the impoundment shall be entitled to challenge the decision of the municipal judge by appeal to District Court.

(9)

If an abandoned vehicle is impounded, and the owner has not obtained a hearing prior to the impoundment, the owner may file a request for a hearing with the municipal judge on the legality of the impoundment within thirty (30) days after impoundment. Upon receipt of the request for a hearing, the municipal judge shall notify the storage facility of the hearing and no lien shall be foreclosed by the storage facility as allowed by state law until the judge has ruled on the legality of the impoundment. If the municipal judge rules that the impoundment was illegal, then the municipal judge shall issue and date a Certificate of Release and a copy of the release shall be given to the owner of the vehicle. Upon receipt of the owner's copy of such certificate, the authorized storage facility having custody of the vehicle shall release the vehicle to its owner and towing and storage fees shall be paid by the municipality in accordance with arrangements to be made between the municipality and the authorized storage facility. If the owner fails to present such certificate to the authorized storage facility having custody of the vehicle within 24 hours of its receipt, excluding days when the authorized storage facility is not open for business, the owner shall assume liability for all subsequent storage charges. The certificate shall advise the owner of such requirement.(*)

G.

Impoundment for Investigation Evidence or Forfeiture. The notice, hearing and bond provisions set forth in this section shall not apply to impoundment of the following vehicles for which impoundment is hereby authorized:

(1)

a vehicle which is impounded for purposes of a criminal investigation or as evidence of a crime; or

(2)

a vehicle which is lawfully seized pursuant to state or federal law.(*)

H.

Release of Vehicles.

(1)

The municipal judge or his designated representatives may order the release of an impounded vehicle if a hearing has been requested on the legality of impoundment and upon the posting of bond as set by the municipal judge or his designee. When bond is posted the vehicle shall be released into the possession of the owner or his designee.

(2)

In all other cases, upon proof of ownership, an impounded vehicle shall be released only after payment of the accumulated penalties by the owner or his designee, as provided in subsection I.

(3)

The owner shall forfeit the bond if the owner fails to appear at the hearing before the municipal court.

(4)

The owner shall be entitled to reimbursement from the municipality for all bonds posted and penalties paid if after hearing and appeal, if any, it is determined that the impoundment or relocation was not valid.

(5)

This subsection does not authorize release of any vehicle held for investigation or as evidence of a crime or seized pursuant to state or federal law. Such vehicle shall be released only upon the written order of the police officer responsible for its impoundment or upon an affirmative written statement by the Chief that such vehicle is no longer needed for investigative or evidentiary purposes or for forfeiture proceedings. The municipality shall bear the cost of towing and storage for such impoundments.(*)

I.

Penalties.

(1)

Each time a vehicle is lawfully towed or relocated pursuant to this section the owner shall pay a fine of fifty dollars ($50.00), unless the municipality is required to pay for removal or relocation.

(2)

Each day a vehicle is stored pursuant to a lawful impoundment, the owner shall pay a fine of ten dollars ($10.00) a day unless the municipality is required to pay for removal or relocation.

(3)

Nothing in this section shall prevent a person from being found in violation of any other part of this ordinance and from being liable for any other penalty, fee or charge assessed pursuant to this ordinance.(*)

(Ord. No. 1567 , 5-29-18)

State law reference

66-7-350 and 66-7-351 NMSA 1978.