New Mexico DUI Law & Lawyers: DUI-Web

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In New Mexico it is illegal to drive with a breath alcohol concentration of .08% or more if you're 21 or over, or .02% if you're under 21. Consumption or possession of alcohol by persons under the age of 21 is illegal in New Mexico. These alcohol concentrations are measured by a machine that analyzes the amount of alcohol expelled in the breath. If your breath test is at or above the legal limit, or if you refuse to take the breath test, you will lose your license, in most cases for a year.

The prosecution has two theories in which to bring the charge of DWI. The first is the "under the influence" theory, in which the prosecution bears the burden to prove that due to your consumption of alcohol you could not operate your vehicle in a safe manner. The prosecution will use evidence such as the arresting officer's testimony regarding your field sobriety test performance, your physical appearance and driving patterns and even testimony of eyewitnesses. It is possible that you could be convicted ofa DWI even if the breath test is below the legal limit if it is proven that your ability to drive was impaired to the slightest degree by drugs or alcohol.

The second theory, and the most common, is the "per se" theory in which the prosecution bears the burden of proving that you were driving with a blood-alcohol concentration of .08% or higher. It makes no difference whether the consumption alcohol negatively affected your ability to safely operate your vehicle. This theory relies solely on body chemistry and you will be deemed to have broken the law simply because your alcohol concentration was at or above the legal limit.

OTHER DRUGS

It is illegal to drive while under the influence of any drug, whether it is an illegal drug or a prescription. Some prescription medicines cause drowsiness or disorientation, and should not be used while driving. It is not a defense to the charge of DWI that the drug you were using was prescribed by a doctor.

CRIMINAL PENALTIES

New Mexico has some of the strictest penalties for impaired driving in the country, for the reason that it has one of the country's worst DWI problems. In 1993 the state legislature sent a message to New Mexicans by increasing the severity of the state's anti-DWI laws and passing laws that have new mandatory penalties. These penalties include going to jail (up to a year and a half), paying fines (as much as $5,000), paying court fees, having to work mandatory community service of up to 48 hours, getting your license revoked for a year, and license reinstatement fees. It now costs $100 just to get your license back after it has been revoked for DWI.

Repeat offenses carry a mandatory jail sentence of up to six months and a mandatory fine of up to $750, neither of which can be suspended. Judges are required to sentence DWI offenders to undergo a psychological evaluation to determine if they have a drinking or drug problem. Offenders that do have such a problem can be ordered to attend expensive and time-consuming treatment for drug or alcohol abuse.
A fourth or subsequent DWI conviction is a felony in New Mexico. A felony conviction follows you for the rest of your life, affecting your right to vote, to adopt children, to own a gun, to be employed at certain jobs, to travel to other countries and in other ways which you can't predict.
You can also go to jail for up to 60 days just for refusing to take the breath test, or if your breath test is at .16 or higher (this is twice the legal limit) or if you cause bodily injury to a person while DWI. This crime is called an Aggravated DWI. If you are convicted of aggravated DWI, there is a mandatory jail sentence of between 48 hours and 60 days, depending on if it was a first offense or a subsequent offense. This sentence cannot be suspended by a judge.

ADMINISTRATIVE DRIVER’S LICENSE CONSEQUENCES

The police officer who arrests you for DWI will confiscate your license on the spot if your breath test is above the legal limit, or if you have refused to take the test. The police officer takes away your license and notifies the Motor Vehicle Division which then revokes it for up to one year. This action is called administrative revocation and is completely separate from anything that happens when you go to court for DWI. If you are convicted in court, your license will also be revoked in a separate court action.

When your license is confiscated by the police officer you have 20 days before the revocation takes effect. If you want to protest the revocation, you must request an administrative hearing within 10 days of arrest. The request must be in writing and accompanied by a $25 hearing fee, or a sworn statement of indigency. The hearing will in most cases take place within 90 days. The issues that will be discussed in your hearing are very limited. These issues are: 1) that the officer had reasonable grounds to stop you; 2) that you were arrested; 3) that the hearing was held within 90 days of your notice of revocation; 4) if you refused the test, that the police officer notified you that you would lose your license; and 5) if you took the breath test, it was properly given to you and you tested at or above the legal limit.

The only exception to the one year revocation of your license is if you have never been revoked for DWI before and didn't refuse to take the breath test. If the test is taken and you show a .08 percent or above blood alcohol level, your license will be revoked for a period of 90 days if you are 21 or older. If you are under 21 and the test result is .02 percent or above, your license will be revoked for six months for a first offense. On a first offense only, you can get a limited license after 30 days. A limited license allows you to drive only to school or work and back. In order to get a limited license, you must first register with an approved DWI school as well as an alcohol rehab program to determine if you have a problem with alcohol or other drugs. You have to show proof of insurance to get the limited license and pay $45. Your regular driving privileges can be restored in 60 days (21 or over) or 5 months (under 21). If you have been convicted of DWI before, or if you refused to take the breath test, you are not eligible for a limited license under any circumstances, including personal or family hardship.

Once your license is revoked, it stays revoked until you reinstate it. The penalties for driving while revoked are severe. You can be sentenced to jail for up to a year (mandatory jail seven days) and can be fined up to $1,000 (mandatory fine $300). Your car can also be immobilized for 30 days.