The state Court of Appeals has ruled that the city of Santa Fe can force a convicted drunken driver to forfeit his vehicle after he was caught driving on a revoked license -- even though he was eligible to have his license reinstated before he was pulled over by police.

The city of Santa Fe's vehicle forfeiture ordinance doesn't make any exceptions for people who simply fail to pay the $100 fee to restore their driving privileges, the appellate court said. However, the City Council is scheduled to discuss such an exception Wednesdaywhen it considers amendments to the law.

On Jan. 26, the appeals court reversed a state District Court decision that said the ordinance is "Draconian in certain circumstances and is not meeting the public purpose for which it was enacted."

The finding means that Diego Olivas, 32, convicted of drunken driving nearly four years ago, might have to forfeit his black, two-door 2006 Jeep.

"I think the significance of the ruling is that it looks as if the Court of Appeals is going to follow the letter of the law," Assistant City Attorney Alfred Walker said Thursday.

Olivas was arrested Feb. 18, 2008, on charges of aggravated DWI, possession of drug paraphernalia, open container violation, speeding, failure to stop and lacking proof of insurance. His license was revoked on March 8, 2008, and he was convicted of the drunken-driving offense on May 22, 2008.

Within two months, the Motor Vehicle Division mailed him a notice of revocation, informing him that he was eligible for reinstatement on March 8, 2009. The notice explained that the reinstatement was not automatic -- he would have to meet certain requirements and pay a $100 fee.

Olivas ignored the notice.

As a result, when he was stopped Feb. 25, 2010, for a traffic violation, he was charged with driving on a revoked license and his Jeep was impounded under the city ordinance.

On April 12, 2010, the city filed a petition for forfeiture of the vehicle under an ordinance adopted in 2007 to protect the health and safety of the community by abating motor-vehicle nuisances.

District Judge Barbara Vigil denied the city's application, saying that the failure to pay the reinstatement fee was a "pro forma requirement" that didn't justify its action. But the district judge suggested that the issue was a good one for appeal and the city did so, asserting that once Olivas' driving privileges were revoked for DWI, they remained revoked until he took affirmative action to have his license reinstated.

The appeals court agreed, saying, "Although the result here may seem harsh given that Olivas was eligible for reinstatement of his license, we are not at liberty to create an exception to or engage in further interpretation of the plain language of the statutes and ordinances as written."

"The [district] judge was obviously sympathetic," Walker noted, adding, "I'm often sympathetic with people in these circumstances. But we've got this ordinance because we've got some very dangerous circumstances out there. We can't say this one is sympathetic; this one isn't. So we're taking this person's car and not this person's. [The law must be] applied evenly across the board."

Although Walker stipulated to the fact that Olivas was basically innocent except for the failure to pay the reinstatement fee, the facts of the case were less exonerating. Olivas, he said, did not have an ignition interlock or an interlock license for the full time he was supposed to have them.

The case now goes back to District Court, but that doesn't necessarily mean the city will take possession of the Jeep.

The vehicle was returned to Olivas after the lower court decision, but Walker said he doesn't know whether Olivas still owns it. Although he was making payments to Americredit Financial Services at the time of the 2010 traffic violation, Olivas informed the Court of Appeals that he had sold the car. But Walker said that he had gotten a call from the finance company asking if he knew Olivas' address because Olivas was behind on his payments.

The city must also decide if it wants the Jeep. The ordinance only allows it to take possession of the vehicle subject to the rights of any lienholders. "We can't make the finance company forfeit their interest because they haven't done anything wrong," Walker said. "We have to pay off their interest if we want this car."

In each case the city must weigh what it might get by selling the vehicle at auction against how much it would have to reimburse the finance company.

When a financial institution is involved in a forfeiture case, Walker said, the vehicle is usually returned to them for payment of fees -- and with the understanding that if the vehicle is involved in another infraction, the finance company will surrender its rights to the car. "This is an incentive for them not to give the vehicle back to the driver," Walker explained.

If the vehicle subject to forfeiture is a new Mercedes on which only $1,000 is owed, then, Walker said, "We'll pay the finance company the $1,000 and get a great car. But that hasn't happened."

In this case, if Olivas still has his car, the city might try to take possession of it. (A 2006 Jeep can be worth around $17,000.) But if it's off in some other state, Walker said, "Then we're not going to pursue it."

Currently the city of Santa Fe has 30 pending forfeiture cases in District Court.

Olivas' attorney did not return a call Thursday seeking comment on the case.

Contact Anne Constable at 986-3022 or aconstable@sfnewmexican.com.