(A) Violation observed by Police Officer. If a Police Officer personally and contemporaneously observes a violation, the Police Officer shall stop the vehicle and issue a citation under this article or other applicable law.
(B) Observation by others. Any person who observes visible air contaminant emission may report the license number of the vehicle to VPMD or the city. The Mayor may establish and advertise a special phone number for citizen reporting of violations of this article. In addition to the license plate number, the person making the report shall state the location where the violation was observed and, if possible, include the color, make and model of the vehicle and the name of any company written on the vehicle.
(C) Warning and Notice of Delivery for Inspection. Upon receipt of a VACE report from any person, VPMD shall forthwith mail a Warning and Notice of Delivery for Inspection (WNDI) to the address of the registered owner(s) of the vehicle according to the records of DMV. VPMD shall not send a WNDI to any vehicle with a valid emissions test performed within 90 days of the VACE report. VPMD may independently investigate any vehicle reported to be producing VACE and take appropriate action without regard to whether the vehicle has passed an emissions test.
(1) Form and contents. The WNDI shall conspicuously state the effective date of the WNDI, the time and location of the alleged violation, the license number of the vehicle and the date by which the vehicle must be delivered to VPMD for inspection. The WNDI shall not contain the name of the person who reported VACE.
(2) Remedial measures. The registered owner shall have 30 days from the effective date of the WNDI to deliver the vehicle to VPMD for inspection. The inspection shall be provided at no cost. The inspection shall determine only whether the vehicle produces VACE. VPMD is not required to diagnose the problem or advise about repairs. A registered owner who brings a vehicle to VPMD for inspection under this paragraph shall not be cited for a violation at the time of the inspection. Upon inspection, VPMD shall inform the registered owner whether the vehicle is in violation. If the vehicle fails, VPMD shall give the registered owner a reasonable time for repairs not to exceed 60 days. After the repairs are made on a vehicle that failed, the vehicle must be returned to VPMD for a re-inspection and not be producing VACE. Failure to return for a re-inspection and approval by VPMD is a violation.
(D) Notice of Violation and Fine Due. If the registered owner does not respond to or comply with the WNDI or otherwise fails to make and prove repairs under the above paragraph, the VPMD shall cause a Notice of Violation to be mailed to the registered owner. The NVFD shall conspicuously and in bold face type state: "Failure to pay this fine on time will lead to serious legal consequences including the loss of your vehicle. After you have received this NVFD, it is a criminal violation to sell, transfer or otherwise convey title to the subject motor vehicle to another person unless all applicable fines are paid and the vehicle is repaired or taken out of commission." The NVFD shall be delivered to the address of the registered owner according to the address registered with the Department of Motor Vehicles or its successor agencies. The registered owner has a duty to timely notify DMV of a change of address and the failure to do so does not entitle the registered owner to assert the defense of inadequate notice. The mailing of a NVFD to the address of the registered owner of a vehicle according to the records of DMV is constructive notice of violation.
(E) Response to Notice of Violation and Fine Due. Within 30 days from the effective date of the NVFD, the registered owner shall pay the fine or request a hearing. To pay the fine, the recipient shall hand deliver certified funds to the Treasury Division. To request a hearing, the recipient shall appear in person at the office of the City Clerk and complete and file a notice of request for hearing on a form available at the Clerk's Office. The City Clerk shall provide a copy of the notice of appeal to VPMD and the Hearing Officer. If the fine has not been paid and a notice of request for hearing has not been filed within 30 days from the effective date of the NVFD, the City Clerk shall deliver a Notice of Default to the Registered Owner, VPMD and the Albuquerque Police Department as further provided below.
(1) No contest payment of fine. Upon receipt of an NVFD, the recipient may elect to admit the violation and pay the fine. To proceed under this section, the recipient shall admit the violation by signing and dating the NVFD on a space provided and returning same to the Treasury Division together with certified funds for payment of the fine. The recipient of the NVFD has ten days from the date of payment of the fine to deliver the vehicle to VPMD and prove that the vehicle no longer produces VACE or that, to the satisfaction of VPMD by written evidence or actual inspection, the vehicle has been destroyed or legally taken out of commission. A registered owner who fails to comply with the preceding sentence shall be cited under ROA 1994 § 1-1-99.
(2) Request for hearing. The recipient of the NVFD may request a hearing by filing a notice of request for hearing with the City Clerk.
(F) Default. If the city does not timely receive payment of the fine or a notice of request for hearing, the registered owner is in default. Default automatically results in liability to the registered owner for the violation and the registered owner is barred from requesting or obtaining any hearing on the merits after the date of default. A default results in additional penalties of twice the amount of the underlying fine. A Notice of Default and demand for payment shall be mailed to the address of the registered owner. The Notice of Default shall inform the recipient that they have 15 days from the date of mailing of the Notice of Default to pay the fine due. If the default is not cured, the city may pursue all remedies for collection of a debt and is entitled to an award of reasonable attorney's fees incurred. An uncured Notice of Default shall be entered into the records of the Albuquerque Police Department and any Police Officer who discovers a vehicle in the city in the course of a traffic stop or otherwise may seize the vehicle for unpaid fines.
(G) Hearing. In the event of a demand for hearing, the Hearing Officer will hold a hearing within 90 days from the effective date of the notice of appeal. The Hearing Officer is in charge of the proceedings and may exclude any person for inappropriate conduct. The rules of evidence are relaxed. VPMD has the burden to prove by a preponderance of the evidence that the violation occurred. The person who observed VACE is not required to attend the hearing. The issue at the hearing is whether the registered owner delivered the vehicle to VPMD as herein required and complied with any WNDI. Any person who defaults on payment of a fine under this article is not entitled to a hearing on the underlying violation. The Hearing Officer shall render a decision in writing 30 days after the close of the hearing to VPMD, the Treasury Division and the City Clerk. Failure to pay a fine as ordered by the Hearing Officer within ten consecutive days from the date of the decision is a default.
(H) Fine. The fine for a violation of this article is $100. The fine doubles upon default. In addition to fines, a registered owner who fails to cure VACE as provided herein shall be charged under ROA 1994 § 1-1-99. A Police Officer may seize and immobilize a vehicle for 90 days upon discovery of a vehicle in the city with unpaid fines under this article. If the registered owner fails to cure the default and pay all impound and storage fees, the vehicle is subject to forfeiture. If a non-Albuquerque resident defaults, the Department shall boot the vehicle of the delinquent or defaulting party for 90 days if said vehicle is found in the city limits any time within ten years of any violation of this article.
(I) Administration. The Mayor may promulgate regulations pertaining to the implementation and enforcement of this article. The Mayor may enter a contract with any person to receive fines, mail notices, adjudicate grievances, keep records, account for monies received or perform any function under this article in lieu of the city departments referred to herein.
(Ord. 40-2005)