CITY of ALBUQUERQUE CODE
ARTICLE 10
VEHICLE NUISANCE ORDINANCE
§ 7-10-1 SHORT TITLE.
This article will be known and may be cited as the "Vehicle
Nuisance Ordinance."
(Ord. 42-2002)
§ 7-10-2 FINDINGS AND INTENT.
(A) The City Council finds that there is a significant risk to
the health and safety of the community caused by drivers who abuse
their privilege to operate vehicles on the public streets and
thoroughfares of Albuquerque by engaging in racing, drag racing,
exhibition driving, road rage taunting and other activities as defined
and prohibited by this Article. The City Council finds that the
problems addressed by this Article are matters of unique local concern
which are not being adequately deterred by general statewide laws, in
part, because monetary penalties alone do not deter nuisance drivers.
The temporary seizure or forfeiture of the vehicle of a nuisance
driver are appropriate remedial measures that will provide safer
streets in the City of Albuquerque.
(B) The Council further finds that the vehicles of nuisance
drivers cause considerable property damage, bodily harm and loss of
life in the City of Albuquerque. The danger, noise, fear and
distraction produced and caused by nuisance drivers leads to
immeasurable harm to the community. The noise and distraction
generated by nuisance vehicles interferes with drivers' ability to
detect and respond to dangerous or emergency driving conditions and
circumstances including but not limited to horn noise and the siren
noise of official emergency vehicles. The purpose of this Article is
to abate the nuisance caused by the use of vehicles by irresponsible
drivers by employing progressive sanctions including temporary loss or
permanent forfeiture of the vehicle.
(Ord. 42-2002)
§ 7-10-3 VEHICLE NUISANCE - SPECIFIC
VIOLATIONS.
A vehicle is hereby declared a nuisance subject to the penalty
provisions of this Article if it is operated by a person or persons
engaged in any of the following enumerated acts:
(A) Drag Racing and Other Competitive Racing. It shall be
unlawful for any person or persons to engage or participate in a drag
race or race for speed within the city limits unless otherwise
excepted herein. For purposes of this section, a drag race or
competitive race for speed shall be and the terms shall mean any
situation or circumstance where two or more persons operate vehicles
in such a manner as to cause such vehicles to be side by side on the
roadway, or one slightly ahead of the other, and either from a stopped
position or while moving, to accelerate such vehicles rapidly with the
intent to race or otherwise out gain the other. The provisions of this
section shall not apply to authorized or licensed race courses, or
other areas which are specifically set aside and supervised by the
police department for police training. In any prosecution for a
violation of this section, intent may be shown from the surrounding
circumstances, from admissions from the violators, from the
observations of a law enforcement officer or in any other manner in
which intent may be proven in any civil or criminal action under New
Mexico law.
(B) Exhibition Driving. It shall be unlawful for any
person to engage in exhibition driving of any vehicle within the city
limits. For purposes of this section, exhibition driving shall be and
the term shall mean driving a vehicle in such a manner that it creates
or causes unnecessary or excessive engine noise, tire squeal, skid or
slide upon acceleration, braking or stopping. Exhibition driving shall
also mean driving a vehicle in a manner that causes the vehicle to
unnecessarily turn abruptly or sway and driving and executing or
attempting one or a series of unnecessarily abrupt turns. Exhibition
driving shall also mean carrying passengers on a part of the structure
of the vehicle not designed for that purpose including but not limited
to the hood. In any prosecution for a violation of this section,
intent may be shown from the surrounding circumstances, from
admissions from the violators, from the observations of a law
enforcement officer or in any other manner in which intent may be
proven in any civil or criminal action under New Mexico law.
(C) Using a Vehicle as an Instrument of Threat or
Intimidation - Road Rage. It shall be unlawful for any person or
persons to use a vehicle as an instrument of threat or intimidation in
the city limits. For purposes of this section, use of a vehicle as an
instrument of threat or intimidation, or so-called road rage driving,
shall be and the terms shall mean driving a vehicle dangerously or
conspicuously close to or behind or near another vehicle or suddenly
stopping or accelerating and rapidly switching lanes or positions on
the roadway with the intent to taunt or retaliate against another
driver for any reason. The use of one or more vehicles to willfully
prevent another vehicle from lawfully passing shall also be a
violation of this section. In any prosecution for a violation of this
section, intent may be shown from the surrounding circumstances, from
admissions from the violators, from the observations of a law
enforcement officer or in any other manner in which intent may be
proven in any civil or criminal action under New Mexico law.
(D) Excessively Loud Electronic Sound or Music. It shall
be unlawful for any person or persons to play or produce excessively
loud sound or music in any vehicle operated on any public street in
the city limits. For purposes of this section, excessively loud
electronic sound or music shall be and the terms shall mean the use of
any machine or device for reproducing sound including any magnifying
sound instrument used in the production or replication of music,
spoken words or other sounds and designed to enlarge the volume of any
instrument, voice or other sound including but not limited to radios,
stereos or so called "boom boxes." It shall be a violation
of this section if any such sound is plainly audible twenty-five feet
from the subject vehicle.
(E) Modification of Exhaust Systems. It shall be a
violation of this section for any person to operate any vehicle in the
city limits with a modified exhaust system. A modified exhaust system
shall mean any change or alteration to the exhaust system found on the
vehicle when it was originally manufactured when such change results
in noise that exceeds the noise the vehicle made when manufactured.
Any violation of ROA 1994 §§ 8-6-13 or 9-9-9(A) through (D)
shall also be a violation of this paragraph.
(Ord. 42-2002)
§ 7-10-99 PENALTY.
(A) First Offense. A person who violates any provision of
this Article the first time shall be subject to the penalty provisions
of § 1-1-99 ROA 1994.
(B) Second Offense. A second offense is a second
violation of any one of the above listed specific violations in any
four year period of time. For a second offense, the violator shall be
subject to the penalty provisions of § 1-1-99 ROA 1994. In
addition, the vehicle of the violator shall be subject to the
temporary seizure penalty below.
(1) Temporary Seizure. For a second offense, the vehicle
the offender was driving at the time of the offense will be
temporarily seized by the City by placement of an immobilization
device ("Boot") on the vehicle by the Albuquerque Police
Department ("APD"). The Boot shall remain on the vehicle for
thirty days. APD will remove the Boot forthwith within a reasonable
time not to exceed five days after the thirty days has expired.
(2) Storage. The boot will be placed on the vehicle at a
storage location chosen by APD or at the violator's residence or other
legal location chosen by the violator. If the violator chooses to
place the vehicle at any location other than a storage site selected
by APD, the violator shall agree to hold the City harmless from any
property damage or other liability incurred during the time of
seizure, storage and transportation to storage. If the violator
chooses to place the vehicle at any location other than a storage site
selected by APD, the violator or owner shall not be responsible for
storage fees.
(3) Notice of Seizure. Prior to booting the vehicle, APD
will deliver a Notice of Seizure to the violator. A Notice of Seizure
will not be required if the vehicle is seized pursuant to an arrest of
the driver or seized pursuant to a search under a warrant.
(4) Notice to Registered Owner. APD will immediately mail
by ordinary mail a Notice of Seizure to the registered owner if the
registered owner is a person different than the violator according to
the records of the New Mexico Motor Vehicle Division ("MVD").
(5) Contents of Notice. The Notice of Seizure shall
contain the following information:
-The license plate number;
-Make, type and color of the seized vehicle;
-Location of storage;
-The reason for seizure including the violated section of this
Article;
-The name and phone number of a city employee who can provide
other information;
-A statement that daily storage charges and a towing charge will
be assessed;
-The address of the hearing officer and notice that any person
has the right to contest the propriety of the seizure by requesting a
hearing in writing within ten days from the date the Notice of Seizure
was mailed or delivered.
(6) No Return. The vehicle seized will not be subject to
replevin or other civil proceeding for return of the vehicle.
(7) Hearing. If the violator or owner seeks to challenge
the seizure, the violator or owner must within ten consecutive
calendar days from the date the Notice of Seizure was mailed or
delivered request in writing a hearing to be conducted by a hearing
officer to be appointed by the Mayor. The hearing shall be scheduled
within twenty consecutive days of the receipt of the request. The
hearing is an informal hearing and not bound by the technical rules of
evidence. The hearing officer will determine only whether APD had
probable cause to seize the vehicle under this Article.
If the hearing officer finds that APD did not have probable cause
to seize the vehicle or that the vehicle should otherwise be released,
the hearing officer shall issue an Order of Release which shall be
delivered to the owner or violator. Upon receipt of any such Order of
Release by APD, APD shall release the vehicle to the owner or violator
and storage fees shall be waived.
Prior to release of the vehicle at the expiration of thirty days
or otherwise, the owner or violator or their agent must pay all
reasonable costs of towing and storage of the vehicle including a
charge of five dollars per day for the Boot. The vehicle shall not be
released until all charges are paid and written proof of insurance of
the vehicle is provided to APD. The City shall not be responsible to
any third person who incurs any damages by an uninsured vehicle
inadvertently released by APD. The vehicle shall not be released if an
inspection reveals that the vehicle is in violation of any section of
this Article. If the vehicle is in violation of (E) above pertaining
to modification of an exhaust system or improper removal of pollution
controls, the owner or violator shall have fifteen days from the
release date to repair the condition. Failure to repair the violation
of (E) within fifteen days of the release date is a separate violation
of this Article.
(C) Third or Subsequent Offense. A third or subsequent
offense is a third or greater violation of any one of the above listed
specific violations in any four year period of time. For a third or
subsequent offense, the violator shall be subject to the penalty
provisions of § 1-1-99 ROA 1994. In addition, the vehicle of the
violator shall be subject to forfeiture provisions of § 7-6-1 et
seq., ROA 1994.
(Ord. 42-2002) |