(dissenting).
{128} I must respectfully DISSENT. Under the majority opinion, New Mexico stands alone from both the federal analysis and the analysis of other states, despite the fact that Ursery has been examined by numerous state courts. In its radical departure, the majority even goes much further than the proposed analysis by Justice Stevens, the only Justice on the United States Supreme Court who dissented from Ursery. Ultimately, I am not persuaded that we should reject Ursery, and even if I were, I believe the opinion errs by creating a constitutionally protected property right to drug proceeds.
I. The Majority Creates a Constitutional Right to the Proceeds of Crime
{129} The majority’s proceeds of crime analysis is, to me, deeply troubling. In a laudable attempt to simplify this area of law, the majority simply goes much too far. In doing so, I believe the majority ignores the admonition in Breit that “[rjaising the bar of double jeopardy should be an exceedingly uncommon remedy.” Breit, 1996-NMSC-067, ¶ 35, 122 N.M. 655, 930 P.2d 792. The majority defines proceeds as the “monetary profits derived from an illegal enterprise as well as any goods or investments purchased with that money.” Majority Opinion, ¶ 35.1 The majority holds that “[n]o one has the right, under Article II, Section 4 of our Constitution, to acquire, possess, or protect contraband. However, in the forfeiture of all other types of property under the Controlled Substances Act, jeopardy attaches.” Majority Opinion, ¶ 35 (emphasis added). In other words, the proceeds or fruits of crime (drug money or purchases made with drug money) are protected under Article II, Section 4 of the New Mexico Constitution under the majority opinion. This holding is both unprecedented and unsupported; it is also certainly bad policy.
{130} The majority takes the extraordinary step of elevating the fruits of crime to the level of a constitutional interest. See Majority Opinion, ¶ 75 (“It is true that the state may impose penalties more harsh or expensive than the forfeiture of such property as an old ear or a small amount of cash. But with regard to that car or cash, and the fundamental right of ownership, no penalty is more extreme than stripping a person of that right without compensation.”). Although there is some contrary language regarding proceeds within the opinion, see Majority Opinion, ¶ 69 (outlining remedial qualities of forfeiture and noting that one is that “[proceeds are the profits of illegal activities and property purchased with those illegal profits and their forfeiture deprives the owner of nothing to which he or she is entitled”),2 any confusion in the majority’s position on the forfeiture of drug proceeds is transcended by the majority’s treatment of Defendants in these cases, particularly Defendant Chavez. If the majority intended to hold that the New Mexico Constitution does not protect drug proceeds, the majority would have reversed the dismissal of Chavez’s criminal charges because the forfeiture of currency in his ease would not have been punishment due to the fact that Chavez reached a settlement agreeing that this money was drug proceeds.
{131} Defendant Chavez was charged with, among other things, possession of marijuana with intent to distribute for two different occasions. As the majority notes, Defendant Chavez and APD reached “compromise settlements” regarding the currency. Majority Opinion, ¶7. APD kept $2529, and returned $1089 to Chavez. Chavez kept his van. In other words, currency was the only item Chavez forfeited, and he bargained for this result, thereby conceding that the currency which he forfeited to APD was the fruit of his illegal sale of drugs. Because there was no default judgment, even under the majority’s analysis, Chavez knowingly agreed that the money was drug proceeds. Chavez accepted and, in fact, bargained for the result in the forfeiture of his drug proceeds, and he did not appeal the forfeiture judgment. This Court has before it a final judgment by a New Mexico court that Chavez’s currency was drug proceeds. Thus, the issue of whether Chavez’s currency was legally acquired has been finally resolved and is not before this Court.
{132} Despite this judgment, the majority astonishingly, and without specific discussion, affirms the dismissal of Chavez’s criminal charges on the basis of double jeopardy. In order to reach this result, the majority must conclude that the judgment involving Chavez in which he forfeited only drug proceeds to APD resulted in a deprivation of Chavez’s constitutional right to property, thereby constituting punishment for purposes of the double jeopardy clause. Thus, the majority apparently concludes that in spite of Chavez’s concession that the currency was drug proceeds, the forfeiture of the money constitutes jeopardy. It is indeed remarkable to create for drug dealers a constitutional right to the proceeds of their criminal activity.
{133} The same result is true for Defendant Gallegos, although this conclusion may be obscured by the fact that the forfeiture was obtained by a default judgment. Because Gallegos failed to contest the forfeiture of $299, the trial court entered a default judgment. Again, however, this is a final determination that Gallegos’ currency was not legally acquired and was in fact the fruits of his crime. The majority, in the recitation of the facts, implies that Gallegos legally obtained his currency and could not contest the forfeiture due to his inability to afford an attorney.3 Majority Opinion, ¶9. These facts are irrelevant; Gallegos does not challenge the validity of the forfeiture judgment, and thus, for purposes of this appeal, it is an established fact that Gallegos’s currency is drug proceeds. By reversing Gallegos’s conviction on double jeopardy grounds, the majority concludes that Gallegos was punished by forfeiting property to which, according to the majority, he has a constitutional right, which, as demonstrated, can only refer to his drug proceeds.
{134} By creating a constitutional property right in drug proceeds, the majority goes much further than even Justice Stevens in Ursery. Justice Stevens, in his dissent, writes that proceeds of crime are not a legal property interest, similar to illegal drugs and paraphernalia, and concurred in the affirmance of the conviction of defendants resulting in life imprisonment, and a $250,000 criminal fine, as well as forfeiture of currency in the amount of $405,089 in a separate proceeding because “the forfeiture of such proceeds is not punitive.” Ursery, 518 U.S. at 298, 116 S.Ct. 2135 (Stevens, J., concurring in judgment in part and dissenting in part) (emphasis added). Justice Stevens concluded that “[t]he forfeiture of ... proceeds [of unlawful activity], like the confiscation of money stolen from a bank, does not punish respondents because it exacts no price in liberty or lawfully derived property from them.” Id. (emphasis added). In other words, Justice Stevens believes that one has no right to the proceeds of a crime, such as drug money. This proposition is universally recognized, even by the commentators on whom the majority opinion so heavily relies.
Seizure of the profits or proceeds of crime is similarly noneontroversial. The idea of depriving a criminal of the profits of his [or her] wrongdoing is rooted in equity and is morally compelling. The idea that one should not profit from [one’s] own wrong undergirds the familiar equitable rule that a killer cannot inherit from his [or her] victim.
Cheh, Easy, supra, at 15; see e.g., Brand, supra, at 305 (“Neither forfeiture of the proceeds of crime, such as money obtained from a drug deal or property bought with that money, nor forfeiture of contraband, such as illegal drugs, deprives an accused of anything to which he [or she] has a legal right.”). For some reason, however, the majority has chosen to reject this ubiquitous proposition, and in doing so, in my opinion, denigrates the fundamental nature of the right to acquire and possess legally obtained property.
{135} Thus, the majority holds, as no other court has held and as no Justice on the Supreme Court has advocated, that individuals have a constitutionally protected property right to the proceeds of the unlawful sale of illicit drugs.4 Although the majority may be attempting to limit such a right to proceeds in drug eases by including “stolen property” within its definition of “contraband,” Majority Opinion, ¶ 35, I disagree that a plausible distinction exists between drug money and stolen money because both are not possessed legally, both are the fruits of crime, and both, unlike contraband such as controlled substances, are not property which is inherently illegal. While it may be reasonable to conclude that the forfeiture of a vehicle as an instrumentality, which is legally acquired property that has merely been used in an illegal manner, is punishment, I believe it is a critical error to reach a similar conclusion regarding drug proceeds, which, unlike the vehicles at issue, were never legally acquired. The majority is allowing Chavez to negotiate, concede, and forfeit his drug profits and then to pick his punishment — $2529 rather than criminal charges which carry possible jail time, a true deprivation of his liberty interest. Because the only property taken from both Defendants Chavez and Gallegos was drug proceeds, currency to which neither had any legal right, I would reverse the district court’s dismissal of Chavez’s criminal charges and affirm Gallegos’s criminal conviction.
II. Default Judgments
{136} The majority also concludes that jeopardy attaches to a default judgment in a forfeiture proceeding. See Majority Opinion, ¶ 102 (asserting, without support, that because forfeiture is punitive that it is “absurd” and “nonsense” to conclude that default judgments do not violate double jeopardy). Respectfully, I disagree. A default judgment either renders the property “ownerless” or represents abandonment of the property by the owner. Even Justice Stevens recognized this fact in dismissing the majority’s reliance in Ursery on the government’s ability to summarily forfeit unclaimed property: “Property that is not claimed ... is considered abandoned; it proves nothing that the Government is able to forfeit property that no one owns.” 518 U.S. at 312, 116 S.Ct. 2135 (Stevens, J., concurring in judgment in part and dissenting in part) (emphasis added). Other courts have reached a similar conclusion regarding default judgments. “If no one makes a claim to the property in a civil forfeiture proceeding, the property is then ‘ownerless,’ and, therefore, its forfeiture punishes no one.” State v. Selness, 154 Or.App. 579, 962 P.2d 739, 742 (1998), review allowed, 328 Or. 418, 987 P.2d 511 (1999).
[T]he most persuasive reason why a forfeiture that is based upon a default or failure to file a timely claim, does not bar a subsequent criminal prosecution, is that the defendant has either failed to assert an ownership interest in the first instance, or by failing to answer, has effectively abandoned any claim to the property____ Moreover, “[t]o hold otherwise, would allow criminal defendants to choose their punishment. A criminal defendant could, decide to forfeit material possessions in lieu of going to prison.”
People v. Prince, 43 Cal.App.4th 1174, 51 Cal.Rptr.2d 138, 146 (1996) (emphasis added) (quoting United States v. Walsh, 873 F.Supp. 334, 337 (D.Ariz.1994)). This is apparently the successful strategy which Defendants Gallegos, Nunez, Edward Vasquez and Marguerite Vasquez employed.
{137} Under the Forfeiture Act, a contested forfeiture action could establish that a person other than the defendant is the actual owner of the property, and the property could still be subject to forfeiture if the owner knew that the property was used for illegal purposes, in which case the defendant could not legitimately claim any form of personal punishment regardless of whether the criminal defendant received notice of the proceeding. A contested forfeiture action could also establish a record from which it would be possible for an appellate court to review in a meaningful way a claim of double jeopardy. For example, in the case of Defendant Gallegos, he should at least have to appear at the proceeding to force the government to establish a record concerning the property’s taint rather than force this Court, as the majority does, to presume, possibly inaccurately, that he told the truth about the source of his forfeited money. Without a contested claim, we should instead presume from the default judgment that the money was the fruit of a crime as shown by the government and that the property has been abandoned.
{138} Because a default judgment establishes that the property is either ownerless or abandoned, then there is no owner, including the defendant, who has been punished or put in jeopardy for purposes of the Double Jeopardy Clause. Defendants Nunez, Gallegos, Edward Vasquez and Marguerite Vasquez presumably forfeited instrumentalities and proceeds through default judgments, thereby abandoning their ownership of the property. Thus, I would conclude that these Defendants were not punished by the default proceedings and double jeopardy does not apply. I would reverse the dismissal of the criminal charges against Defendant Nunez, and affirm the convictions of Defendant Gallegos, Defendant Edward Vasquez, and Defendant Marguerite Vasquez.
III. No Distinctive State Characteristics
{139} Under the Gomez standard, this Court departs from federal analysis because the federal analysis is flawed, because of distinctive state characteristics, or because of undeveloped federal analogs. Gomez, 1997-NMSC-006, ¶ 20, 122 N.M. 777, 932 P.2d 1. The majority concludes that prior holdings of this Court represent a distinctive state characteristic. With respect, I disagree. The majority asserts that “New Mexico has a time-honored precedent that has always regarded forfeiture as punitive,” that the constitutional provisions are facially different, that New Mexico’s “double-jeopardy case law has departed from the federal standard,” and that following Ursery would require “dismantl[ing] a significant body of settled law, much of which was decided independently of federal ease law.” Majority Opinion, ¶ 17.
A. Previous Departure From Federal Law
{140} Most importantly, the majority’s assertion that New Mexico has departed from the federal standard is misleading. In Schwartz, 120 N.M. at 625-26, 904 P.2d at 1050-51, this Court stated:
The double jeopardy Clause “protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” Here we are concerned with the third of these protections, the protection against multiple punishments.
Both Schwartz and the present case involve double jeopardy claims arising out of criminal proceedings following civil proceedings. Thus, under Schwartz, this case involves multiple punishments, as the majority apparently agrees by applying the test derived from Schivartz.5
{141} In Schwartz, we held that, in respect to multiple punishments, “our analysis is identical for both the federal and state clause.” Id. at 625, 904 P.2d at 1050. “We reserve[d] the question, however, whether the New Mexico Double Jeopardy Clause, under circumstances other than the multiple punishment doctrine, provides greater protection than the federal clause.” Id. By departing from federal law and holding that the Double Jeopardy Clause of the New Mexico Constitution provides broader protection in the multiple punishment context, the majority is deviating from, not following, this critical aspect of Schwartz. As support for this departure, the majority relies on Breit. However, because Breit involved prosecutorial misconduct in the context of multiple prosecutions rather than multiple punishments, Breit partially answers the question reserved in Schwartz and does not support the majority’s departure from federal law in the specific context of multiple punishment. Indeed, as demonstrated by Schwartz, this Court has consistently declined to depart from federal law when addressing multiple punishment. ‘We find no suggestion ... in the reported New Mexico case law that the New Mexico double jeopardy clause, in the multiple punishment context, provides further protection than that afforded by the federal clause as interpreted by relevant federal ease law.” Swafford, 112 N.M. at 7 n. 3, 810 P.2d at 1227 n. 3.
{142} As noted above, I believe that the analysis in Schwartz summarizes federal law, and, in any event, as discussed below, the Schwartz test does not conflict with the analysis of Ursery. As in State v. Woodruff, 1997-NMSC-061, ¶¶ 16-19, 124 N.M. 388, 951 P.2d 605, when our cases rely on a federal analysis, a subsequent overruling of the federal analysis by the Supreme Court, as apparently the majority believes occurred with Ursery, does not render the earlier New Mexico cases “established precedent providing a basis for interpreting the New Mexico constitutional provision(s) more broadly than the federal analog(s).” Id. ¶ 15. Our cases have repeatedly declined to depart from the federal analysis on the multiple punishment prong of double jeopardy. See Schwartz, 120 N.M. at 625, 904 P.2d at 1050 (“Due to the similarity of the Federal and State Double Jeopardy Clauses, this Court consistently has construed and interpreted the state clause as providing the same protections offered by the federal clause.”); Swafford, 112 N.M. at 13, 810 P.2d at 1233 (“Taking as our cue the repeated admonitions of the Supreme Court that the sole limitation on multiple punishments is legislative intent, we adopt today a two-part test for determining legislative intent to punish.”) (citations omitted). In this case, as discussed further below, I believe there are distinctive state characteristics, specifically, our relatively narrow forfeiture statute, that argue against, not in favor, of departing from Ursery.
B. Facial Distinctions Between the Federal and New Mexico Provisions are Irrelevant
{143} The majority asserts that the New Mexico Double Jeopardy Clause is facially different from the federal counterpart. See Majority Opinion, ¶¶ 24-27. However, the facially different language relates to successive criminal prosecutions and clearly does not apply to the present cases. See N.M. Const, art. II, § 15 (stating that “when the indictment, information or affidavit upon which any person is convicted charges different offenses or different degrees of the same offense and a new trial is granted the accused, he [or she] may not again be tried for an offense or degree of the offense greater than the one of which he [or she] was convicted.”). This provision embodies the well-established principle that conviction of a lesser offense implies an acquittal of a greater offense, see State v. Martinez, 120 N.M. 677, 678-79, 905 P.2d 715, 716-17 (1995), and it does not concern the issue of multiple punishment in the cases before this Court. The majority also relies on Section 30-1-10, the non-waiver provision. Contrary to the majority’s position, I do not believe that this statutory provision “expand[s]” the constitutional protection of double jeopardy. See Majority Opinion, ¶ 25. I believe this is a statutory right that would, similar to Swafford, protect defendants from multiple punishments not intended by the Legislature. I do not believe that the Legislature, by enacting this provision, intended to limit its own authority to enact separate punishments to be administered in separate proceedings that would otherwise be permissible under the Constitution. See Montoya, 55 F.3d at 1499 (stating that Section 30-1-10 is statutory rather than constitutional).
C. Dismantling of New Mexico Precedent is Not Required
{144} The majority declares that New Mexico has a “time-honored precedent that has always regarded forfeiture as punitive.” Majority Opinion, ¶ 17. There are multiple problems with this statement: (1) much of the older authority cited by the majority is clearly distinguishable; (2) more recent case law is dependent on federal law; and (3) even if the proposition were true, the test in Schwartz does not require this Court to hold that forfeiture violates double jeopardy.
{145} The majority states that “the presumption that forfeiture is punitive can be traced to the earliest opinions of the Territorial Supreme Court, prior to our statehood,” Majority Opinion, ¶ 73, and relies on United, States v. Lucero, 1 N.M. (Gild.) 422, 449 (1869). However, a careful read of Lucero reveals that this Court viewed in rem forfeiture that does not involve the regulation of trade, such as the present case, as remedial in nature, not punitive, in accordance with the United States Supreme Court’s opinion in Taylor v. United States, 44 U.S. (3 How.) 197, 210, 11 L.Ed. 559 (1845) (opinion of Story, J.) (“In one sense, every law imposing a penalty or forfeiture may be deemed a penal law; in another sense, such laws are often deemed, and truly deserve to be called, remedial.” (emphasis added)). Rather than rejecting the Supreme Court’s position in Taylor that in rem forfeiture is remedial, this Court in Lucero merely distinguished Taylor because the statute at issue involved the regulation of trade. Beyond Lucero, the other cases relied upon by the majority only incidentally refer to punishment and forfeiture and therefore do not provide adequate support for the proposition in the opinion. Further, these cases arose in different contexts and could not have contemplated the narrow form of forfeiture permitted in Section 30-31-34 because that statute was not yet in existence.
{146} It is true that recent New Mexico cases have referred to forfeiture as being punitive in nature. However, none of these eases discussed principles of double jeopardy; in fact, no New Mexico case has even alluded to a double jeopardy problem with forfeiture even though the statute has existed since 1972.6 Rather, these cases largely stem from this Court’s discussion of forfeiture in Ozarek, which was dependent on federal law concerning the right against self-incrimination and the exclusionary rule. See Ozarek, 91 N.M. at 276, 573 P.2d at 210 (relying on Plymouth Sedan, 380 U.S. at 700, 85 S.Ct. 1246). The Supreme Court, in Ursery, did not overrule those eases. Thus, Ozarek stands for the proposition that forfeiture is punitive for purposes of some procedural due process rights; however, Ozarek did not transform forfeiture into a truly criminal proceeding that would require such constitutional procedural protections as the right to confront witnesses and the requirement of proof beyond a reasonable doubt. The majority opinion similarly fails to designate a civil forfeiture proceeding as a fully criminal action by adopting a clear and convincing standard of proof rather than proof beyond a reasonable doubt as would be required in a criminal proceeding. Therefore, Ozarek and its progeny do not require the result reached by the majority in this case. See State v. Catlett, 133 Wash.2d 355, 945 P.2d 700, 704 (1997) (rejecting a defendant’s argument that prior case law describing forfeiture as punitive and quasi-criminal required a conclusion that forfeiture was punishment for purposes of double jeopardy, because the prior case had addressed the exclusionary rule under the Fourth Amendment, had not addressed double jeopardy, and was therefore inapposite to the double jeopardy analysis).
{147} Finally, even if New Mexico has “time-honored” precedent noting that forfeiture is punitive, this conclusion is not dispositive under the Schwartz test. In Schwartz, this Court, relying on Halper, set forth the following test in determining, not merely whether a particular sanction has some punitive aspects, but whether the sanction is punishment for the specific purposes of double jeopardy: “If the penalty may be fairly characterized only as a deterrent or as retribution, then the revocation is punishment; if the penalty may be fairly characterized as remedial, then it is not punishment for the purposes of double jeopardy analysis.” Schwartz, 120 N.M. at 630, 904 P.2d at 1055 (emphasis added); accord State v. Hanson, 543 N.W.2d 84, 87-88 (Minn.1996) (addressing the exact issue this Court addressed in Schwartz and concluding that, under Halper, a civil sanction is punishment for purposes of double jeopardy only if its purposes can be characterized as “solely deterrent/retributive”). Under this test, a particular penalty may have incidental punitive aspects and still be fairly characterized as remedial. Id. at 633, 904 P.2d at 1058 (“[T]he fact that the regulatory scheme has some incidental deterrent effect does not render the sanction punishment for the purposes of double jeopardy analysis.”). Thus, in order to follow Ursery, this Court would not need to “dismantle” any New Mexico law.
IV. The Schwartz Test is Not “Unique” to New Mexico
{148} The analysis ultimately adopted by the majority is actually strikingly similar to the Ursery test. This signifies to me that the test itself, though not necessarily its application, is not flawed under the majority’s analysis.
{149} The test adopted in the opinion, taken from Schwartz, is
(1) whether the State subjected the defendant to separate proceedings; (2) whether the conduct precipitating the separate proceedings consisted of one offense or two offenses; and (3) whether the penalties in each of the proceedings may be considered “punishment” for the purposes of the Double Jeopardy Clause.
Schwartz, 120 N.M. at 626, 904 P.2d at 1051. Although the majority asserts that the Supreme Court in Ursery “left unexpressed” and “discount[ed]” the first two factors in Schwartz, which the majority considers “indispensable,” Majority Opinion, ¶ 38, a careful review of Ursery reveals that the Supreme Court was clearly aware of these factors and merely assumed their presence for purposes of the analysis under the third prong: whether the proceedings constitute punishment. Ursery, 518 U.S. at 273 n. 1, 116 S.Ct. 2135. I believe that the two-part test in Ursery actually represents an attempt to clarify the third prong articulated in Schwartz, whether the penalties in the two proceedings constitute punishment, and is very similar to the majority’s analysis comparing the punitive and the remedial purposes of the statute. Thus, I am uncertain why the majority rejects the federal analysis in Ursery; it appears that the majority is merely rejecting the result in Ursery.
{150} The test to determine whether civil forfeiture constitutes punishment in Ursery is: (1) whether the legislative body intended to create a criminal punishment; and (2) if not, whether the statutory scheme was so punitive either in purpose or effect as to negate the legislative body’s intention to establish a civil remedial mechanism. 518 U.S. at 277, 116 S.Ct. 2135. This test was derived from earlier cases and is consistent with, rather than a reversal of, the Court’s recent double jeopardy jurisprudence. According to federal courts, for example, Ursery does not represent a “new rule of law” for purposes of applying its holding retroactively. United States v. Emmons, 107 F.3d 762, 765 (10th Cir.1997).
{151} The majority departs from Ursery in the rejection of Ursery’s requirement of the “clearest proof’ that a statute is so punitive as to render the forfeiture proceedings essentially criminal in character.7 The majority concludes that “ ‘clearest proof is such an inaccessible standard that it requires the judiciary to suspend its own interpretation of the constitution in favor of that of the [L]egislature,” and asserts that “[ujnlike federal courts, New Mexico courts have never used the expression ‘clearest proof as a standard for evaluating the legitimacy of forfeiture actions.” Majority Opinion, ¶ 40. However, this rule in Ursery is derived from 89 Firearms, which was cited in Schwartz with apparently no objection to its analysis. See Schwartz, 120 N.M. at 628, 904 P.2d at 1053. Nevertheless, the majority eschews this test and instead, without support, creates a presumption that a separate proceeding involving the deprivation of the “fundamental constitutional right of ‘acquiring, possessing and protecting property,’ ” violates double jeopardy under the New Mexico Constitution. See Majority Opinion, ¶ 64 (stating that the purpose of depriving a defendant of property “creates a strong presumption that the sanction is punitive” and therefore unconstitutional). This analysis conflicts with existing New Mexico law that holds that defendants bear the burden of demonstrating a violation of double jeopardy. See State v. Gonzales, 1997-NMCA-039, ¶¶ 18-19, 123 N.M. 337, 940 P.2d 185. Additionally, the majority’s analysis, hinging on the right to property, conflicts with this Court’s opinion in In re Nelson, 79 N.M. 779, 450 P.2d 188 (1969) (per curiam), which was cited with approval in Schwartz, 120 N.M. at 631, 904 P.2d at 1056. In Nelson, this Court upheld the indefinite suspension of a license to practice law and, in addressing a due process claim, concluded that there was no due process violation because the suspension was for “the protection of the public, the profession, and the administration of justice, and not the punishment of the person disciplined.” Nelson, 79 N.M. at 784, 450 P.2d at 193. Although a professional license is a recognized property right under the New Mexico Constitution, Mills v. New Mexico Bd. of Psychologist Exam’rs, 1997-NMSC-028, ¶14, 123 N.M. 421, 941 P.2d 502, this Court did not apply any presumption that the deprivation of that right constituted punishment. Thus, the majority’s analysis is inconsistent with Schwartz and other New Mexico cases. Without support in New Mexico law, the majority appears to reject Ursery’s allegedly result-oriented approach to forfeiture in favor of another.
V. The Forfeiture Statute is Not Sufficiently Punitive to Become Criminal in Nature
{152} The majority relies on Schwartz in order to determine whether a separate forfeiture proceeding violates double jeopardy. However, as stated above, the test in Schwartz determines whether a sanction may be fairly characterized as remedial. Additionally, Halper, on which Schwartz relied, stated that a civil sanction may be considered as punishment for purposes of double jeopardy only if it is “so extreme and so divorced from the Government’s [remedial objective] as to constitute punishment.” Halper, 490 U.S. at 442, 109 S.Ct. 1892. The majority, although claiming to apply this analysis, recasts the test and, without authority, presumes a sanction to be punitive unless its punitive aspects are “outweigh[ed]” by its remedial aspects. Majority Opinion, ¶ 66; accord Majority Opinion, ¶ 64 (‘We also believe that if neither the remedial nor the punitive purposes predominate, the evaluation should be guided by whether the sanction affects a fundamental right.”). I believe this test again violates our admonition that “double jeopardy should be an exceedingly uncommon remedy.” Breit, 1996-NMSC-067, ¶ 35, 122 N.M. 655, 930 P.2d 792.8
{153} The majority states that one of the most compelling arguments supporting the conclusion that civil forfeitures are criminal is that they are conditioned on the eommission of a crime. Majority Opinion, ¶91 (“The forfeiture necessarily requires proof of the criminal offense and by its terms compels the defendant to relinquish property right precisely because he or she has committed a crime.”). In addition, the majority states that the innocent owner provision supports this conclusion. I disagree. An owner’s property can be subject to forfeiture even though that owner did not commit a crime. Section 30-31-34(G)(2) states that “no conveyance is subject to forfeiture under this section by reason of any act or omission established for the owner to have been committed or omitted without his [or her] knowledge or consent.” Thus, the forfeiture statute only requires the state to prove that the owner knew or consented to the use of his or her conveyance by an individual violating the Controlled Substances Act, not that the owner, himself or herself, violated the Controlled Substances Act, either by possessing or distributing controlled substances. This supports the conclusion in Ursery that forfeiture “encourages property owners to take care in managing their property and ensures that they will not permit that property to be used for illegal purposes,” thereby reinforcing the remedial objectives of the statute. 518 U.S. at 290, 116 S.Ct. 2135; id. at 294, 116 S.Ct. 2135 (Kennedy, J., concurring) (“The key distinction is that the instrumentality-forfeiture statutes are not directed at those who carry out the crimes, but at owners who are culpable for the criminal misuse of the property.”).
{154} The opinion holds that forfeiture is “the most extreme sanction the state can bring against the property owner.” Majority Opinion, ¶ 75 (“ ‘Forfeiture is to fines what capital punishment is to incarceration.’” (quoting Cheh, Easy, supra, at 10)). The statutory criminal fines for the activities at issue range from $5000 to $15,000, while the value of the forfeitures in the present case range from $39 to $2179 or a 1989 Chevy pickup. Thus, the value of the forfeited items in these cases does not appear to exceed the criminal fines possible, and in fact was often substantially lower, whereas obviously, capital punishment is always more severe than any amount of incarceration.
{155} Importantly, the majority, by relying so heavily on commentators, incorrectly analogizes the New Mexico forfeiture statute to modem federal law. Compare Section 30-31-34, with 21 U.S.C. § 881 (1994 & Supp. II 1996). As alluded to above, a reading of the federal counterpart reveals a clear difference, which in fact served as the basis of Justice Stevens’ dissent in Ursery: “The following shall be subject to forfeiture to the United States and no property right shall exist in them: ... All real property, including any right, title, and interest ... in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year’s imprisonment .... ” 21 U.S.C. § 881(a)(7) (emphasis added). While the opinion attempts to characterize forfeiture in New Mexico as extremely broad and far reaching, New Mexico’s statute is actually much narrower than the federal counterpart, which allows forfeiture of any property, including a residence and land. New Mexico’s statute is limited to contraband, paraphernalia, containers, conveyances, and cash proceeds. Thus, under New Mexico law, real property, even if purchased with drug proceeds, can never be subject to forfeiture. The majority’s reliance on commentators’ analysis of the much-broader federal forfeiture law demonstrates the problematic tendency towards theory, rather than reasoning based on the facts before the Court.
{156} Further, with respect to the types of property articulated in the statute, the forfeiture of conveyances is limited to the most extreme drug crimes, trafficking and distribution, which are second, third, and fourth degree felonies. As a result, the statute is, contrary to the opinion’s conclusion otherwise, tied to the seriousness of the crime. Thus, the narrow nature of New Mexico’s statute does not call for the majority’s departure from federal law, and in fact may have even been acceptable to Justice Stevens. Justice Stevens emphasized that his disagreement with the majority opinion in Ursery was largely founded on the forfeiture of a house, and in fact noted that the early eases relied on by the majority “involved the forfeiture of vessels whose entire mission was unlawful and on the Prohibition-era precedent sustaining the forfeiture of a distillery ____ Notably none of those early cases involved the forfeiture of a home as a form of punishment for misconduct that occurred therein.” Ursery, 518 U.S. at 320-21, 116 S.Ct. 2135 (Stevens, J., concurring in judgment in part and dissenting in part); see also id at 300 n. 3, 116 S.Ct. 2135 (discussing the “unusual scope and the novelty of’ 21 U.S.C. § 881(a)(7)).
VI. Forfeiture in New Mexico May Be Fairly Characterized as Remedial
{157} Applying the Schwartz test, I believe that the forfeiture statute can neither be characterized “only as a deterrent or as retribution,” Schwartz, 120 N.M. at 630, 904 P.2d at 1055, nor as “so extreme and so divorced” from the government’s remedial objectives that it may be characterized as criminal. The majority argues that forfeiture is punishment because it is not related to the amount of damages suffered by the State concerning the illegal drug trade. However, I believe this overlooks one of the most important remedial purposes of forfeiture: The primary purpose of forfeiture is to remove the means of committing the crime. See Albuquerque Police Dep’t v. Martinez (In re Forfeiture of Fourteen Thousand Six Hundred Thirty Nine Dollars), 120 N.M. 408, 902 P.2d 563 (Ct.App.1995) (stating that the purpose of forfeiture of instrumentalities “is to prevent their use in the commission of subsequent offenses involving transportation or concealment of controlled substances and to deprive the drug trafficker of needed mobility” (quoting the comment to Uniform Controlled Substances Act § 505, 9 U.L.A. 835 (1988))). Indeed, although Halper only contemplated that a sanction be “rationally related” to remedial objectives, Halper, 490 U.S. at 451, 109 S.Ct. 1892, New Mexico’s statute is narrowly tailored to serve this goal by targeting property owners who know or consent to the drug crime, making the future misuse of their property more likely. In addressing the argument that the forfeiture of instrumentalities “is justified as a way of protecting society from harm,” the majority concedes that the “[fjorfeiture of harmful property can be beneficial.” Majority Opinion, ¶ 69. Further, unlike Kurth Ranch, 511 U.S. at 782, 114 S.Ct. 1937, where “the legitimate revenue-raising purpose that might support ... a [drug] tax could be equally well served by increasing the fine imposed upon conviction,” the State in this case cannot achieve this remedial aim by increasing the criminal penalties. Increasing criminal penalties under the Controlled Substances Act would not have the desired effect of removing instrumentalities from the drug trade and would not reach “innocent” owners who knowingly allow their property to be used for the purpose of selling illegal drugs, but do not themselves violate the Act. With this statutory purpose in mind, I disagree with the majority that forfeiture in New Mexico constitutes punishment for purposes of double jeopardy under Schwartz because the forfeiture statute may be fairly characterized as remedial.
VII. Advisory Conclusions Concerning Due Process
A. Right to Counsel
{158} The majority opinion contains several holdings which appear to me to be advisory. The majority attempts to create a right to counsel in the second part of a single, bifurcated proceeding which would resolve forfeiture disputes following a criminal trial.9 See Majority Opinion, ¶ 104 (“Most notably, the indigent defendant will have available the assistance of counsel in the forfeiture proceeding because both the property and the criminal actions will take place in a single trial.”). The majority apparently does so on the basis of due process, but without any form of due process analysis. See Majority Opinion, ¶ 104 (discussing “fairness”). This Court recently concluded that a sentence enhancement based on a prior misdemeanor conviction not resulting in a term of imprisonment obtained without counsel does not violate the New Mexico or federal constitutions. See Woodruff, 1997-NMSC-061, ¶ 37, 124 N.M. 388, 951 P.2d 605. Although we left unaddressed the specific question of whether actual imprisonment or a designated term of potential imprisonment triggers the right to counsel in misdemeanor cases under the New Mexico Constitution, see id. ¶ 25 n. 3, it is significant that no court has interpreted either a state or federal constitutional right to counsel to apply outside the context of actual or potential incarceration, aside from a limited number of cases involving the termination of parental rights. To now imply that counsel is required in a civil proceeding seems inconsistent at best and would call into question countless heretofore constitutionally-obtained misdemeanor convictions. The majority references no authority for the proposition that counsel must be provided for civil proceedings. Defending against a civil forfeiture in New Mexico is far less onerous than defending oneself against criminal charges, with much less at stake. Further, because this availability of counsel depends on the criminal trial preceding the forfeiture, and no counsel is thus required under the majority opinion for individuals facing only forfeiture, equal protection concerns arise. Additionally, the majority’s reference to counsel raises questions of whether a bifurcated proceeding requires a jury to remain for the forfeiture portion. In my view, neither the right to counsel nor the right to due process in the New Mexico Constitution would require state-provided counsel or a right to a trial by jury in a forfeiture proceeding, whether bifurcated with a criminal proceeding or not.
B. Burden of Proof
{159} The majority concludes “that the State bears a low burden of proof ... when it initiates the deprivation of a fundamental constitutional right [which] raises grave due process concerns.” Majority Opinion, ¶ 108. The majority cites Section 30-31-37 as support for this conclusion. However, because this Court strictly construes the forfeiture statute, I believe this is an incorrect interpretation of the statute. Section 30-31-37 relieves the State of its obligation to “negate any exemption or exception in the Controlled Substances Act____The burden of proof of any exemption or exception is upon the person claiming it.” This statute does not remove the State’s obligation to prove the affirmative requirements within the forfeiture statute itself that the property was involved in a drug transaction. Cf. Ursery, 518 U.S. at 299 n. 1, 116 S.Ct. 2135 (Stevens, J., concurring and dissenting) (“To justify [the] forfeiture, the Government assumed the burden of proving (a) that respondent had committed such an offense, and (b) that the property had played some part in it.”). Further, with respect to the innocent owner exception, and despite the wording of the Section 30-31-37, this Court has held “that the burden imposed on the owner is the burden of going forward and not the burden of persuasion.” Ozarek, 91 N.M. at 276, 573 P.2d at 210 (“The owner need only assert that the vehicle was used without his [or her] knowledge and consent to shift the burden to the State.”).
{160} The majority holds that, “in the forfeiture portion of the trial, the burden of proof will be on the State to prove by clear and convincing evidence that the property in question is subject to forfeiture.” Majority Opinion, ¶ 110. Inexplicably, the majority also states that the burden of proof in Section 30-31-37 may not always be unconstitutional. See Majority Opinion, ¶ 111 (“[Section 30-31-37] may still apply in a solitary forfeiture action that involves no criminal prosecution.”). This peculiar reasoning also seems to raise grave equal protection concerns. Apparently, although the majority concludes that forfeiture of property, a fundamental constitutional right, is punishment if one is also criminally prosecuted, when the State institutes only forfeiture proceedings, it is not punishment for purposes of invoking due process protections such as a heightened burden of proof.
{161} Further, the majority is apparently basing its declaration of the unconstitutionality of the standard of proof under the Controlled Substances Act on the Due Process Clause. However, despite the alleged uneonstitutionality of the statute, the majority does not disturb the outstanding forfeiture judgments against these defendants. Clearly, the majority could not due so, because the forfeiture judgments, not having been appealed by these defendants, are not subject to the Court’s review. This additionally illustrates the advisory nature of this aspect of the majority’s opinion.
VIII. Single Offense
{162} The majority determines that the crime of distribution or trafficking of controlled substances and the forfeiture of proceeds or instrumentalities constitutes a single offense. Specifically, the majority “conclude[s] that an examination of the Controlled Substances Act reveals that there is no fact needed to prove the drug trafficking violation that is not also needed to prove the grounds for forfeiture,” thus, “[t]he forfeiture statute entirely subsumes the criminal offense.” Majority Opinion, ¶ 57. In order to reach this result, the majority applies the federal test from Blockburger, 284 U.S. at 304, 52 S.Ct. 180.
{163} This Court previously applied Blockburger to a similar question in Schwartz, and as previously discussed, Schwartz addressed an analogous double jeopardy issue by applying federal law instead of state constitutional law. Indeed, the Court of Appeals, in State v. Powers, 1998—NMCA-133, ¶¶ 21-29, 126 N.M. 114, 967 P.2d 454, recently discussed, in the context of successive prosecutions, whether the Block-burger “same elements” test sufficiently protects the right against double jeopardy under the New Mexico Constitution. In Powers, the Court of Appeals held that the “same elements” test from Blockburger “adequately protects Defendant’s right to be free from double jeopardy in the context of successive prosecutions governed by our state constitution.” Powers, 1998-NMCA-133, ¶29, 126 N.M. 114, 967 P.2d 454. The majority in this ease does not overrule Powers, and- as the interstitial approach from Gomez would require, the majority fails to indicate that present federal law on this particular question is inadequate to protect Defendants’ rights in this case. In fact, the majority concedes that the United States Supreme Court, in JJrsery, failed to address the issue of whether a forfeiture and a drug crime constitute a single offense for purposes of double jeopardy. Majority Opinion, ¶ 38. Thus, notwithstanding the majority’s generalized claim of exclusive reliance on state constitutional law, Majority Opinion, ¶ 18, the majority is clearly applying federal law to this particular factor of the Schwartz test. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (“[WJhen ... a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the ease the way it did because it believed that federal law required it to do so.”). Thus, under the interstitial approach of Gomez, the majority’s departure from federal law is therefore limited to the third factor of the Schwartz test: whether forfeiture constitutes punishment for purposes of double jeopardy.
{164} On the question of whether forfeitures under Section 30-31-34 and criminal convictions under Sections 30-31-20, -22, constitute a single offense for purposes of double jeopardy, I believe the majority misapplies federal law and misinterprets the statutory provisions under the Controlled Substances Act. The majority asserts that the innocent owner provisions support the conclusion that a single offense is at issue because these provisions “limit the application of the forfeiture statute exclusively to those who are in “violation of the Controlled Substances Act.’ ” Id. (quoting Section 30-31-34(G)(1)). I disagree because I believe the innocent owner provision reveals the distinct elements required for forfeiture as compared to the elements required for the crime of distribution or trafficking controlled substances. The plain language of the forfeiture statute states that a common carrier is not subject to the forfeiture of a conveyance “unless it appears that the owner ... is a consenting party or privy to a violation of the Controlled Substances Act,” Section 30-31-34(G)(1), and that other owners’ conveyances are not subject to forfeiture unless the owner knows or consents to the drug crime, Section 30-31-34(0(2). As a result, forfeiture of an instrumentality has the following elements: (1) the subject property is a conveyance; (2) it was “used or intended for use to transport or in any manner facilitate the transportation for the purpose of sale of’ controlled substances, Section 30-31-34(D); and (3) the owner of the subject property knew or consented to such use, Section 30-31-34(G)(2). By contrast, the crime of possession of a controlled substance with intent to distribute or traffic has different elements: (1) the defendant had a controlled substance; (2) the defendant knew it was a controlled substance; and (3) the defendant intended to transfer it to another. See UJI 14-3104 NMRA 1999; UJI 14-3111 NMRA 1999. Thus, the forfeiture of an instrumentality requires proof of the distinct element of the use of a conveyance to transport a controlled substance, whereas the crime of possession with intent to distribute requires proof of a higher level of a culpable mental state on the part of the owner/defendant, an intention to transfer the controlled substance. “If either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing.” Owens v. Abram, 58 N.M. 682, 684, 274 P.2d 630, 631 (1954), cited with approval in State v. Tanton, 88 N.M. 333, 335, 540 P.2d 813, 815 (1975).
{165} By way of illustration, it is useful to consider the facts relating to Defendant Marguerite Vasquez. Marguerite was arrested while driving a vehicle registered in her name and later forfeited to the government. Her husband, Edward Vasquez, was a passenger in the car. The police seized roughly two kilograms of marijuana, 123 grams of cocaine, and currency in the amount of approximately seventy-nine dollars. At trial on his criminal charges, Edward claimed that the drugs were his, that his wife knew nothing about them, and that they were for his personal use. In order to forfeit Marguerite’s proportionate interest in the vehicle, assuming it was community property, the government had the burden to prove by a preponderance of evidence that Edward Vasquez used the vehicle for transporting the controlled substance for the purpose of sale and that Marguerite Vasquez knew or consented to that use. By contrast, in order to prosecute her for possession with intent to distribute, the State needed to prove beyond a reasonable doubt that Marguerite had a higher level of mental culpability, that she intended to sell the controlled substances. In other words, assuming they had challenged the forfeiture and asserted an ownership interest in the property, the government needed to refute Edward Vasquez’s assertions that Marguerite did not know about the drugs and that they were for personal use in order to meet its burden in the forfeiture action, but it did not need to refute his assertion that the drugs were his and not Marguerite’s until it chose to prosecute Marguerite for the criminal offense. This difference in elements further underscores the above-stated difference in purposes for these statutes: the forfeiture of a conveyance is directed at an owner of property, irrespective of the owner’s commission of a crime, in order to prevent the future misuse of the property, whereas the crime of possession with intent to distribute, being directed only at criminal offenders, serves only the criminal law interests of deterrence and retribution. Under the Blockburger same elements test, then, each “offense” requires proof of a fact that the other does not. Cf. Tanton, 88 N.M. at 335, 540 P.2d at 815 (“The facts offered in municipal court to support a conviction for driving while under the influence of intoxicating liquors would not necessarily sustain a conviction for homicide by vehicle in the district court.”).10 Therefore, even if the majority were correct that forfeiture is punishment under the New Mexico Constitution, there can be no viola tion of double jeopardy because these were separate offenses. Cf. State v. Clark, 124 Wash.2d 90, 875 P.2d 613, 616, 618 (1994) (concluding, under Austin, that forfeiture is punishment for purposes of the Double Jeopardy Clause in the United States Constitution, but declining to hold that double jeopardy had been violated because the defendant had failed to demonstrate that the forfeiture and the crime were single offenses), overruled by Catlett, 945 P.2d at 703-06 (overruling Clark concerning the issue of punishment based on Ursery and concluding, under an independent state constitutional analysis, that forfeiture is not punishment for purposes of double jeopardy under the Washington Constitution).
IX. Retroactivity
{166} Following the emphasis the majority places upon the forfeiture of instrumentalities and proceeds, see Majority Opinion, ¶ 75 (“But with regard to that car or cash, and the fundamental right of ownership, no penalty is more extreme than stripping a person of that right without compensation.”), and the double jeopardy protection of the New Mexico Constitution, see Majority Opinion, ¶ 27 (“When compared to recent United States Supreme Court Fifth-Amendment jurisprudence, New Mexico’s constitutional and statutory protection against double jeopardy, on its face, is of a different nature, more encompassing and inviolate.”), the majority then places arbitrary limits upon those defendants who have allegedly suffered the violation by restricting the retroactivity of the holding. See Majority Opinion, ¶ 116. Although the majority claims that the holding is the inevitable result of New Mexico law, dating back to territorial days, the majority reaches a contradictory conclusion by holding that forfeiture as punishment is a “new rule of law” which, if applied to forfeiture eases dating back to 1972, would “have a deleterious ‘effect upon the administration of justice.’ ” Majority Opinion, ¶ 116 (citation omitted). If precedent required the result advanced by the majority, as the majority claims it does, then this case would not represent a “new rule of law” and the Santulones retroactivity analysis would be inapposite.11 See Santillanes, 115 N.M. at 223, 849 P.2d at 366 (“The issue of retroactive effect arises only when a court’s decision overturns prior case law or makes new law when law enforcement officials have relied on the prior state of the law.”).
X. Successive Prosecution Versus Multiple Punishment
{167} The majority criticizes the United States Supreme Court for not “addressing whether the cases in question are multiple punishment or multiple prosecution cases.” Majority Opinion, ¶38. I believe this insight by the majority is highly significant and, if explored, could substantially clarify double jeopardy law. Unfortunately, however, the majority opinion suffers from the exact deficiency that it places on the Court’s opinion in Ursery. The majority opinion relies heavily on the analysis of this Court in Schwartz. In Schwartz, we determined that the issue presented by the appeal was one of multiple punishment. Indeed, the three-part test from Schwartz that is used by the majority can only be directed at multiple punishment and could not be construed as a true successive prosecution inquiry. The third part of the test considers “whether the penalties in each of the proceedings may be considered ‘punishment’ for the purposes of the Double Jeopardy Clause.” Schwartz, 120 N.M. at 626, 904 P.2d at 1051. By contrast, for successive prosecution eases, courts assess whether the defendant was subjected to more than one criminal prosecution for a single offense. Thus, under a true successive prosecution inquiry, the issue of multiple punishment would be irrelevant; it would be a violation of double jeopardy to subject a defendant to multiple prosecutions regardless of whether an earlier prosecution resulted in acquittal, and therefore no punishment, or conviction, and therefore punishment. The harm the defendant suffers is the proceeding itself, regardless of the outcome.
{168} Although Schwartz and the majority’s reliance on that case should make clear that the majority opinion treats this issue as one of multiple punishment, the majority opinion itself demonstrates some confusion on this issue. Majority Opinion, ¶ 30 (“The protection against multiple prosecutions of the same offense is not dependent upon whether jeopardy first attached in the criminal or civil proceeding.”). Under the heading of “New Mexico multiple prosecutions test,” the majority refers to the “multiple punishment analysis” of Schwartz, Majority Opinion, ¶ 36, but then discusses the application of this test as “indispensable in evaluating a multiple prosecution double-jeopardy claim.” ¶38. The majority contends that “[i]f we conclude, under Schwartz, that these are separate proceedings seeking separate punishments for a single offense, there is no question that the prohibition against multiple prosecutions has been violated.” Majority Opinion, ¶ 38. I believe this confusion between multiple punishment and multiple prosecution cases, which finds its genesis in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943), and was perpetuated in Halper, represents a fundamental flaw in the majority’s opinion.
{169} We stated in Swafford, 112 N.M. at 7, 810 P.2d at 1227:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him [or her] to embarrassment, expense and ordeal and compelling him [or her] to live in a continuing state of anxiety and insecurity____ Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the same offenses charged.
(Quotation marks and citation omitted). The separate forfeiture proceedings in these cases violates none of the interests protected by the successive prosecution prong of double jeopardy. First, the forfeiture proceeding cannot be considered a true criminal prosecution. Further, as in Powers, the fact that different governmental agencies pursue the forfeiture action and the criminal prosecution “severely limit[s] the extent to which the [forfeiture proceeding] could be used by the State as an opportunity to rehearse its trial strategy for the subsequent felony charges.” Powers, 1998-NMCA-133, ¶ 28, 126 N.M. 114, 967 P.2d 454. Additionally, the statute clearly provides for separate proceedings and clearly contemplates both a forfeiture sanction and a criminal sanction. Because the State criminally charged Defendants in these cases prior to the entry of the forfeiture judgments, the time at which jeopardy attached according to the majority, Defendants “could not reasonably expect that the [forfeiture proceeding] would relieve [them] of any further obligation to answer in court” for the criminal charges. Powers, 1998-NMCA-133, ¶27, 126 N.M. 114, 967 P.2d 454. Similarly, because the singular goal of the double jeopardy prohibition against multiple punishment is to “prevent the sentencing court from prescribing greater punishment than the legislature intended,” Swafford, 112 N.M. at 7, 810 P.2d at 1227 (internal quotation marks and citations omitted), the Legislature’s clear indication that forfeiture is complementary to criminal sanctions abates any concern regarding this prong of double jeopardy. Due to the absence of any violation of these interests traditionally thought to be protected by double jeopardy, I do not believe that the Double Jeopardy Clause was ever intended to reach the type of situation at issue in this case, referred to as “successive punishments” in Kurth Ranch. See Hess, 317 U.S. at 554-56, 63 S.Ct. 379 (Frankfurter, J., concurring).
XI. Conclusions
{170} The majority holds that New Mexico law has distinctive characteristics which warrant departure from federal analysis. However, the test in the majority’s opinion is rather similar to the federal approach; it simply reaches a different result with a substantially similar analysis, a result which is extremely broad, unsupported by authority, and in fact contradicted by all nine Justices of the Supreme Court. Even the authors of the numerous law review articles upon which the majority relies do not support the majority’s holding that drug proceeds are protected as a constitutional property interest.
{171} The present cases warrant neither a radical departure from Ursery nor a conclusion that these cases involve punishment for purposes of the Double Jeopardy Clause. Even if the majority’s decision to depart from Ursery were appropriate, there is insufficient justification to hold that proceeds of criminal activity are a constitutionally protected property interest. Further, I believe that even if a forfeiture action is punishment for purposes of double jeopardy, a default judgment does not constitute punishment because the property is ownerless or abandoned. All of the consolidated cases before this Court could have been completely resolved by these two issues alone. Beyond these issues, I conclude that, under either the Ursery or Schwartz tests, the forfeiture statute, both in purpose and in effect in these cases, is remedial and not sufficiently punitive to transform the proceeding from civil to criminal in character for purposes of the Double Jeopardy Clause.
{172} I therefore, respectfully, DISSENT.
BACA, J., concurs.XV. APPENDIX: ENDNOTES
1. See Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) (“[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards.”); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (“Our holding, of course, does not affect the State’s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so.”).
2. See, e.g., Gomez, 1997-NMSC-006, ¶¶ 33-40, 122 N.M. 777, 932 P.2d 1 (interpreting N.M. Const, art. II, § 10; holding that state must show exigent circumstances to justify warrantless search of automobile; contrary to United States v. Ross, 456 U.S. 798, 800, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)); Breit, 1996-NMSC-067, ¶¶ 19-24, 32-36, 122 N.M. 655, 930 P.2d 792 (interpreting N.M. Const, art. II, § 15; holding that jeopardy attaches at trial when prosecutorial misconduct is prejudicial to defendant, when prosecutor knows the conduct is improper but acts either with intent to provoke a mistrial or with willful disregard of the consequences of the conduct; contrary to Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)); Campos v. State, 117 N.M. 155, 158-59, 870 P.2d 117, 120-21 (1994) (interpreting N.M. Const, art. II, § 10; holding that warrantless arrest must be based on probable cause and exigent circumstances; contrary to United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)); State v. Attaway, 117 N.M. 141, 151-52, 870 P.2d 103, 113-14 (1994) (interpreting N.M. Const. art. II, § 10; establishing, on state constitutional grounds, knoek-and-announee rule for entry to execute warrant, prior to similar interpretation of federal constitution in Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)); State v. Gutierrez, 116 N.M. 431, 432, 863 P.2d 1052, 1053 (1993) (interpreting N.M. Const, art. II, § 10; holding that good-faith exception in United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is incompatible with the warrant guarantees of the New Mexico Constitution); State v. Cordova, 109 N.M. 211, 217, 784 P.2d 30, 36 (1989) (interpreting N.M. Const. art. II, § 10; holding that New Mexico would retain two-pronged test for probable cause established in Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 412-13, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), contrary to Illinois v. Gates, 462 U.S. 213, 230-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which abrogated both Aguilar and Spinelli).
3. We base our holding today only on the unique characteristics of New Mexico’s double-jeopardy jurisprudence.
4. See, e.g., State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 634, 904 P.2d 1044, 1059 (1995) (stating forfeitures are punitive); Mitchell v. City of Farmington Police Dep’t (In re Forfeiture of Two Thousand Seven Hundred Thirty Dollars & No Cents), 111 N.M. 746, 749, 809 P.2d 1274, 1277 (1991) [hereinafter $2730.00 ] (stating that forfeitures under Controlled Substances Act are penal and are gauged by standards applicable to criminal proceedings).
5. See, e.g., Ricketts v. Adamson, 483 U.S. 1, 11, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (federal double jeopardy is subject to knowing and intelligent waiver); Montoya v. New Mexico, 55 F.3d 1496, 1499 (10th Cir.1995) (defendant may waive double-jeopardy defense by means of plea agreement). But see State v. Jackson, 116 N.M. 130, 133, 860 P.2d 772, 775 (Ct.App.1993) (“Being bound by the broad, clear language of Section 30-1-10, we reject any argument that Defendant successfully waived his double-jeopardy claim at the plea hearing.”).
6. State v. James, 93 N.M. 605, 606, 603 P.2d 715, 716 (1979); State v. Archuleta, 112 N.M. 55, 58, 811 P.2d 88, 91 (Ct.App.1991).
7. See Gordon v. Eighth Judicial Dist. Court, 112 Nev. 216, 913 P.2d 240, 243 (1996); see also Stanley E. Cox, Halper’s Continuing Double Jeopardy Implications: A Thorn By Any Other Name Would Prick as Deep, 39 St. Louis U. L.J. 1235, 1253 (1995).
8. Cheh, Easy, supra, at 14; Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325, 1341 (1991) [hereinafter Cheh, Constitutional ].
9. See Andrew J. Gottman, Note, Fair Notice, Even for Terrorists: Timothy McVeigh and a New Standard for the ex Post Facto Clause, 56 Wash. & Lee L.Rev. 591, 646 (1999) (suggesting that the “clearest proof’ standard allows for manipulation by the courts because a court can always claim that there is no clear proof that a statute has a punitive effect as long as there is even a single factor that indicates a remedial effect); Leading Case, Double Jeopardy Clause — In Rem Civil Forfeiture, 110 Harv. L.Rev. 206, 210 n. 54 (1996) (“[T]he Court’s ‘clearest proof rule, devoid of guidance as to the necessary showing, fails to protect defendants adequately.”); Brand, supra, at 302-03 (“The sweeping determination that civil forfeitures are non-punitive precludes any further inquiry into double jeopardy considerations in such cases, thus leaving no room for consideration of the Double Jeopardy Clause’s ‘humane’ objectives.”).
10. See, e.g., In re 1982 Honda, 681 A.2d 1035, 1038 (Del.1996) (using Ursery to conclude that Delaware forfeiture statute is not criminal and does not punish); State v. Kienast, 553 N.W.2d 254, 256 (S.D.1996) (same regarding South Dakota forfeiture statute); Sean M. Dunn, Note, United States v. Ursery: Drug Offenders Forfeit Their Fifth Amendment Rights, 46 Am. U.L.Rev. 1207, 1240 (1997) (“Because the Court in Ursery held that civil forfeitures pursuant to § 881 do not constitute punishment for double jeopardy purposes, it is likely that individuals facing drug charges now will be forced to defend themselves in two separate proceedings.”); Jennifer B. Hendren, Annual Survey of Caselaw: Criminal Law, 19 U. Ark. Little Rock L.J. 707, 711 (1997) (“Ursery may be read as adopting the view that no in rem forfeiture would implicate the Double Jeopardy Clause.”).
11. See Swafford, 112 N.M. at 9, 810 P.2d at 1229 (“[T]he question of whether punishments are unconstitutionally multiple depends on whether the legislature has authorized multiple punishment.”).
12. See Halper, 490 U.S. at 449, 109 S.Ct. 1892 (rough justice); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (liquidated damages).
13. See Emerald, 409 U.S. at 237, 93 S.Ct. 489 (Civil forfeiture “prevents forbidden merchandise from circulating in the United States.”); Leach & Malcolm, supra, at 260 n. 81 (“Forfeiture is remedial because it protects the community by removing dangerous instrumentalities from the stream of commerce ____”).
14. See, e.g., Bennis v. Michigan, 516 U.S. 442, 447-53, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996) (upholding the forfeiture of a car owned jointly by a married couple which was used by the husband in his illegal activity with a prostitute, despite wife’s innocence of any crime); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 665, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) (upholding the forfeiture of a yacht leased to two individuals who brought a marijuana cigarette on board although the owner had no prior knowledge that the yacht would be wrongfully used); United States v. Sixty Acres, 930 F.2d 857, 860-61 (11th Cir.1991) (upholding the forfeiture of an Alabama farm and residence to which the wife held title despite her testimony that she was a battered woman and feared reporting her husband’s illegal drug activity).
15. See State v. One 1967 Peterbilt Tractor (In re Seizure & Intended Forfeiture of One 1967 Peterbilt Tractor), 84 N.M. 652, 654, 506 P.2d 1199, 1201 (1973) (“[Notwithstanding this is not a criminal proceeding, it is, nevertheless, on the principal issue involved in this appeal of such a nature that it is proper to gauge it by the same standards applicable in a criminal proceeding.”); State v. Cessna Int’l Fin. Corp. (In re Forfeiture of One Cessna Aircraft), 90 N.M. 40, 42, 559 P.2d 417, 419 (1977) (“The forfeiture provisions of the Controlled Substances Act are penal in nature and consequently no pre-seizure notice or hearing is constitutionally required.”); State ex rel. Albuquerque Police Dep’t v. One Black 1983 Chevrolet Van, 120 N.M. 280, 282, 901 P.2d 211, 213 (Ct.App.1995) (quoting Cessna, 90 N.M. at 42, 559 P.2d at 419, that forfeitures are penal); State v. Ozarek, 91 N.M. 275, 275-76, 573 P.2d 209, 209-10 (1978) (“The forfeiture provisions of the Controlled Substances Act are penal in nature.”); State v. Barela, 93 N.M. 700, 701, 604 P.2d 838, 839 (Ct.App.1979) (stating forfeiture proceeding was quasi criminal), overruled on other grounds by In re Forfeiture of 1982 Ford Bronco (State v. Stevens), 100 N.M. 577, 579, 673 P.2d 1310, 1312 (1983); 1970 Ford Pickup, 113 N.M. at 99, 823 P.2d at 341 (quoting Ozarek, 91 N.M. at 276, 573 P.2d at 210, that forfeitures are penal); $2730.00, 111 N.M. at 749, 809 P.2d at 1277 (“The forfeiture provisions of the Controlled Substances Act are penal in nature.”); Albuquerque Police Dep’t v. Martinez (In re Forfeiture of Fourteen Thousand Six Hundred Thirty Nine Dollars), 120 N.M. 408, 412-13, 902 P.2d 563, 567-68 (Ct.App.1995) [hereinafter $14,639] (stating that direct tie between forfeiture of property and commission of drug offenses confirms the punitive nature of forfeiture laws); Schwartz, 120 N.M. at 634, 904 P.2d at 1059 (concluding from Kurth Ranch, 511 U.S. at 768, 114 S.Ct. 1937, that forfeitures have “distinctly punitive purposes”); City of Albuquerque v. Chavez, 1997-NMCA-034, ¶ 19, 123 N.M. 258, 939 P.2d 1066 (mentioning quasi criminal concept), rev’d on other grounds, 1998-NMSC-033, 125 N.M. 809, 965 P.2d 928; City of Albuquerque v. Haywood (In re Forfeiture of ($28,000.00)), 1998-NMCA-029, ¶ 9, 124 N.M. 661, 954 P.2d 93 (mentioning quasi-criminal character of forfeiture and citing Peterbilt Tractor and $14,-639).
16. See United States v. Lucero, 1 N.M. (Gild.) 422, 449 (1869) (“ ‘[S]o far as statutes for the regulation of trade impose fines or create forfeitures, they are doubtless to be construed strictly as penal, and not literally as remedial laws.’ ” (quoting Mayor [of Philadelphia] v. Davis, 6 Watts & Serg. 269, 276 (Pa.C.P.1843))); Milligan v. Cromwell, 3 N.M. (Gild., E.W.S. ed.) 557, 564, 9 P. 359, 362 (1886) (“The act of 1882 fixes the maximum of interest that may be recovered on such contracts at 12 percent per annum, but does not provide a punishment for charges in excess thereof, except the implied forfeiture of such excess.”); Scottish Mortgage & Land Inv. Co. v. McBroom, 6 N.M. 573, 588, 30 P. 859, 863 (1892) (“It is true that the statute makes such a transaction a misdemeanor, but the same statute prescribes the punishment, to wit, a fine of not less than $25 nor more than $100, and the forfeiture of double the amount of such interest so collected or received.”), aff'd, 153 U.S. 318, 14 S.Ct. 852, 38 L.Ed. 729 (1894).
17. Seward v. Denver & R.G.R. Co., 17 N.M. 557, 585, 131 P. 980, 989-90 (1913) (“The company, claiming a compliance with the order, should show that it had provided two seats, and had provided a ton of coal or a load of wood, but no stove; could this court punish by fine, forfeiture, or contempt for a failure to comply with the order?”).
18. See State ex rel. Erickson v. McLean, 62 N.M. 264, 272, 308 P.2d 983, 988 (1957) (“ ‘Forfeiture is a “punishment annexed by law to some illegal act or negligence in the owner of lands, ... whereby he loses all his interests therein.” ’ ” (quoting 2 Clesson Selwyn Kinney, Treatise on Irrigation & Water Rights § 1118, at 2020 (2d ed.1912))); State ex rel. Reynolds v. South Springs Co., 80 N.M. 144, 146, 452 P.2d 478, 481 (1969) (same).
19. See, e.g., Ozarek, 91 N.M. at 276, 573 P.2d at 210 (quoting “quasi criminal” statement from 1958 Plymouth, 380 U.S. at 700, 85 S.Ct. 1246); $2730.00, 111 N.M. at 749, 809 P.2d at 1277 (stating forfeiture proceedings are quasi criminal); Haywood, 1998-NMCA-029, ¶ 9, 124 N.M. 661, 954 P.2d 93 (mentioning quasi-criminal character of forfeiture and citing Peterbilt Tractor and $14,-639).
20. See $14,639, 120 N.M. at 412, 902 P.2d at 567. See generally One 1995 Corvette v. Mayor & City Council, 353 Md. 114, 724 A.2d 680, 682-85(Md.), cert. denied, 528 U.S. 927, 120 S.Ct. 321, 145 L.Ed.2d 251 (1999).
21. Accord State v. Sunset Ditch Co., 48 N.M. 17, 26, 145 P.2d 219, 224 (1944); 1970 Ford Pickup, 113 N.M. at 99, 823 P.2d at 341 (quoting Ozarek, 91 N.M. at 275-76, 573 P.2d at 209-10).
22. See Shaffer, 433 U.S. at 207, 97 S.Ct. 2569 (recognizing “that ‘[t]he phrase, “judicial jurisdiction over a thing,” is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing’ ” (quoting Restatement (Second) of Conflict of Laws § 56 introductory note (1971))); ReMine ex rel. Liley v. District Court, 709 P.2d 1379, 1382 (Colo.1985) (en bane) (stating the term “in rem” encompasses “any action brought against a person in which the essential purpose of the suit is to determine title to or affect interests in property”).
23. See Shaffer, 433 U.S. at 212, 97 S.Ct. 2569 (“The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification.”); The Chickie, 141 F.2d 80, 86 (3d Cir.1944) (“The action in rem directs a plaintiffs claim to a thing. True, the plaintiffs judgment, if he is successful, affects persons, but only so far as concerns their interest in the thing, which is personified as a defendant in the litigation.”).
24. See Devlin v. State ex rel. New Mexico State Police Dep’t, 108 N.M. 72, 74, 766 P.2d 916, 918 (1988) (stating that the location of the property within the court’s forum confers in rem jurisdiction when the defendant is absent); Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 462 (4th Cir.1992) (discussing maritime cases in which no owner came forward).
25. See, e.g., Wells, supra, at 169 (“This resort to legal fiction is flawed because it elevates form over substance by failing to account for the reality of in rem forfeiture actions-namely, that civil forfeiture often does punish the owner of the property.”); Brand, supra, at 305 (“The Court’s willingness to justify, on such contrived arguments, the seizure of property as crucial as one's home is worrisome.”); Leading Case, supra, at 210 n. 54 (“[I]f the Court does not rest its decision on the in rem basis of the proceeding, its opinion is left with only one justification: the naked force of precedent.”).
26. See Austin v. United States, 509 U.S. 602, 616 n. 9, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (“[FJorfeiture proceedings historically have been understood as imposing punishment despite their in rem nature.”); United States v. Baird, 63 F.3d 1213, 1223 (3d Cir.1995) (Sarokin, J., dissenting) (The forfeiture of property and monies “is dependent not on the criminal nature of the property, but on the illegal use their owners make of them.... Therefore, it is the owners who are punished by the forfeiture of such property.” (citation omitted)).
27. See § 30-31-34; see also Peterbilt Tractor, 84 N.M. at 657, 506 P.2d at 1204 (“The risk of forfeiture is attendant on the factor of transportation or storage and not on the value of the vehicle used to transport or to keep.”); cf. Ex parte Ariza, 913 S.W.2d 215, 221 (Tex.App.1995, pet. granted) (Smith, J., on motion for rehearing) (“The federal forfeiture statute contains no formula which attempts to correlate the value of the forfeited property with the government’s damages.”), rev’d per curiam on other grounds, 934 S.W.2d 393 (Tex.Crim.App.1996, no pet.).
28. See generally Blumenson & Nilsen, supra, at 35-114; David B. Smith, Asset Forfeiture: A Serious Threat to Our Property Rights, Briefly ... Perspectives on Legis., Reg., & Litig., Oct. 1998, at 4-7 [hereinafter Smith, Threat ].
29. See United States v. Ursery, 59 F.3d 568, 574-75 (6th Cir.1995) (proof); Leach & Malcolm, supra, at 260 n. 81 (“Forfeiture is punitive because it involves a real transfer of value from the wrongdoer to the sovereign precisely because the wrongdoer has done wrong.”).
30. See United States v. German, 76 F.3d 315, 319 (10th Cir.1996); United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.1994); McGowan v. United States, 899 F.Supp. 1465, 1468 (W.D.N.C.1995).
31. We note that in 1996 the New Mexico Legislature passed a new Forfeiture Act that would have ameliorated many of the concerns, discussed in this opinion, that plague modern forfeiture. For unknown reasons, the Act was vetoed by the governor. See Forfeiture Act, S. 10, 42d Leg., 2d Sess. (N.M.1996) (vetoed Mar. 6, 1966). Included in the Act was a provision that shifted to the State the initial burden of proof in a forfeiture healing: “The burden of proof is on the prosecution to establish, by clear and convincing evidence, that the property is subject to forfeiture.” Id. § 9(B). Law enforcement agencies would no longer be permitted to personally profit from forfeiture assets. Rather, the trial court would direct the disposition of forfeited property. Proceeds would go first to victim restitution and then to the general fund. See id. § 12. Another provision would have required a single proceeding for both the criminal action and the forfeiture, similar to the requirement we introduce in this opinion:
A. A judgment for the forfeiture of property shall be entered only upon:
(1) conviction of an owner of the property for a crime related to the forfeiture; any forfeiture proceeding shall be brought in the same proceeding as the criminal matter: however, the two issues shall be bifurcated and presented to the same jury; and
(2) proof by clear and convincing evidence that the property is forfeitable under state law and that a person convicted of a crime related to the forfeiture is an owner of the property.
Id. § 4(A)(1) & (2) (as amended by S. Judiciary Comm., Jan. 30, 1996; amendment struck by S. Fin. Comm., Feb. 3, 1996). The New Mexico Senate Judiciary Committee incorporated the “same proceeding” provision, italicized above. This amendment would have obviated double-jeopardy claims like those before us today. This amendment was subsequently struck by the Senate Finance Committee, and, in any event, the entire bill was vetoed by the governor.
Interestingly, the United States House of Representatives recently passed the Civil Asset Forfeiture Reform Act which was similar in significant ways to our own vetoed Forfeiture Act. See Civil Asset Forfeiture Reform Act, H.R. Res. 216, 106th Cong., 1st Sess. (1999); see also Stephen Labaton, House Passes Bill Making It Harder to Seize Property, N.Y. Times, June 25, 1999, at A1 (“An unusual coalition of liberals and conservatives persuaded the House of Representatives to approve legislation Thursday to make it much harder for Federal and state law enforcement authorities to confiscate property before they bring criminal charges in narcotics and other cases.”). This Court is obviously not alone in its concerns about inherent injustices of modern forfeiture law.
32. See Christopher P. v. State, 112 N.M. 416, 417, 816 P.2d 485, 486 (1991) (bifurcated hearing on motion to transfer matter from children’s court to adult court, in which children’s court judge first determined whether child committed delinquent acts, then addressed whether child was amenable to treatment); State v. Luna, 93 N.M. 773, 779, 606 P.2d 183, 189 (1980) (discussing bifurcated hearing when insanity defense is raised in which issue of insanity is separated from issue of guilt), abrogated on other grounds by Horton v. California, 496 U.S. 128, 151, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
33. Cheh, Easy, supra, at 46 (presumption); Smith, Threat, supra, at 4, 24 (hearsay, lawyer); Shannon T. Noya, Comment, Hoisted by Their Own Petard: Adverse Inferences in Civil Forfeiture, 86 J.Crim. L. & Criminology 493, 495-96 (1996); Blumenson & Nilsen, supra, at 47-50 (In an action against property “few of the constitutional safeguards imposed on criminal prosecutions apply.”).
34. We note that Santillanes makes no mention of the fact that the United States Supreme Court discarded the Linkletter test in 1987. In Griffith v. Kentucky the high court adopted a rule of universal retroactivity, holding that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all eases, state or federal, pending on direct review or not yet final.” Griffith, 479 U.S. at 328, 107 S.Ct. 708. Our courts have never, except incidentally, expressed approval or preference for the rule of Griffith. See, e.g., State v. Acosta, 1997-NMCA-035, ¶10, 123 N.M. 273, 939 P.2d 1081 (mentioning the Griffith rule); Stroh Brewery Co. v. Director of N.M. Dep’t of Alcoholic Beverage Control, 112 N.M. 468, 480 n. 12, 816 P.2d 1090, 1102 n. 12 (1991) (Montgomery, J., dissenting) (noting that Linkletter was “severely undercut” by Griffith).
35. See Rule 12-216(B) NMRA 1999 (on appeal question must be preserved below, be of general public interest, or involve fundamental error); State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991) (fundamental error applies even if the issue is not preserved below).