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Frequently Asked Questions about DUI in New Mexico

Are there sentence enhancements for DUI in New Mexico?

There are sentence enhancements for DUI violations in the state of New Mexico.  New Mexico, along with many other states, provides for harsher penalties for those defendants with particularly high blood alcohol content at the time of the violation.  In New Mexico the enhanced penalty BAC level is 0.16; significantly higher than the state’s BAC level for a DUI generally (0.08).  The enhancement penalty (a charge called aggravated DUI in New Mexico) allows the court system to give a harsher penalty to a defendant who is a repeat offender or who lacks remorse for their actions.  Drivers who are convicted of driving under the influence with an enhanced BAC reading of 0.16 or higher must go through a court ordered evaluation by a health professional to determine their chemical dependency on drugs and alcohol, and the defendant must pay the cost of this program.  Such enhancement penalties serve the purpose of deterring reckless behavior and promoting public health at the same time.

Can I be stopped and arrested for DUI in New Mexico even if the vehicle was not moving?

Some states require that the person actually be driving a moving vehicle to be arrested for a DUI charge, while other states allow the conviction simply for being behind the wheel or having the keys in the ignition.  In New Mexico, a person can be found guilty of driving under the influence even if the vehicle is not moving when they are confronted by a police officer.  For example, in one New Mexico case in 2009, the defendant was found in the driver seat of his parked car against the steering wheel in a residential neighborhood.  The man was arrested for DUI and the results were later confirmed by a blood test.  The court in that case convicted the defendant of driving under the influence of alcohol despite the vehicle not being in motion when he was apprehended, saying that at any time he could have continued to drive the vehicle.  Thus the prosecution was successful in establishing that the defendant was in physical control of the vehicle.  All the prosecution had to show was that the defendant could potentially have operated the vehicle and caused it to move while in a state of inebriation.  Thus, in New Mexico a person can be convicted of driving under the influence even if they are not technically driving the vehicle (the vehicle is not in motion) at the time of the arrest.

Do I have the right to talk to an attorney before I give a sample?

Some states give defendants the right to speak with an attorney before submitting to a chemical test such as by blood or urine.  In other states, no such privilege exists and the defendant has not right to speak with his attorney until after submitting to such a test.  Regardless of when the state you are in allows you to speak with an attorney, it is a good idea to secure counsel for the purposes of your defense.  In all states including New Mexico, a defendant has a constitutional right to defense counsel (in other words, the advice of a lawyer) both before as well as during any police interrogation.  However, in New Mexico a driver is not afforded the opportunity to speak with an attorney before submitting to a chemical test.  The convict may only request to speak with his attorney once taken into police custody, read his Miranda rights, and is questioned by the police.

Do I have the right to give a blood or urine sample?

If a driver refuses to submit to a chemical test by a police officer, he will be guilty of New Mexico’s implied consent law and will be arrested for driving under the influence.  However, any driver in New Mexico who is requested to take a chemical test can by law submit his or her own test as evidence.  A doctor, nurse, or other medical professional must administer this test to ensure its accuracy.  Thus drivers have the right to challenge the chemical tests they are forced to take by police by taking independent tests.  In addition, the defendant and his attorney have the right to access the results of any chemical test done by the police upon arrest.

Do I have to submit a field sobriety test?

Field sobriety tests allow police to determine potential inebriation before forcing drivers to submit to chemical testing of their blood or urine.  New Mexico law does not require submitting to a field sobriety test, so the driver can deny an officer’s request when prompted to take such a test.  However, such refusal will result in the officer asking the driver to take a chemical test (a breathalyzer, for example).  This request is not optional, as declining a chemical test means the driver is automatically in violation of the state implied consent law and thus guilty of DUI.  Thus while drivers in New Mexico can deny requests by police to submit to a field sobriety test, failure to comply with a chemical test can result in the same penalties as having a BAC above the legal limit.

Can a DUI charge result in vehicle confiscation in New Mexico?

Some states allow police to confiscate the driver’s vehicle upon arrest or charge for driving under the influence either permanently or for a set period of time.  This is a harsh penalty typically reserved for repeat DUI offenders, with the notion being that those most likely to commit DUI offenses (i.e., repeat offenders) will be deterred from doing so if their vehicles are confiscated.  Many states defend this concept with a public policy rationale, in other words, it is in the public’s best interest to keep such reckless drivers off the road, and confiscating their vehicles is a huge deterrent to this crime. New Mexico law does not currently allow the police to confiscate a driver’s vehicle in this manner.  However, even states that allow such procedures have appeal processes to allow defendants to recover their vehicles where appropriate.

Can a DUI charge result in mandatory alcohol education or treatment programs?

Some states force DUI offenders to attend alcohol education or treatment programs as part of the penalty for driving under the influence of alcohol.  These programs typically involve educating the individual as well as assessing his dependency on alcohol or other drugs.  These programs are sometimes used as part of a suspension or probation program.  Thus in states that have such treatment programs, a DUI convict can avoid a potential jail sentence as well as fines by completing the program.  The state of New Mexico currently has mandatory alcohol education, assessment, and treatment in place.  Any person convicted of even a single driving under the influence charge must attend such a program, and the individual will not recover driving privileges until successful completion of the program.  Some DUI offenders must complete an assessment of alcohol abuse problems and will be required to go to additional treatment programs, depending on the severity of the conviction (taking into account the driver’s BAC at the time of arrest) as well as any previous offenses committed by the driver.

Boating under the influence (“BUI”) Laws

All 50 states have laws against boating under the influence of drugs and alcohol.  In New Mexico, the legal BAC limit for driving a boat is 0.08, the same level as for driving an automobile.  The BAC limit for underage drivers is 0.02, also the same level as driving a car.  A first conviction in New Mexico for boating under the influence may result in fines of up to $1,000 in addition to jail time.  These penalties are in addition to losing boating operation privileges for an extended period.  In fact, more severe penalties exist for subsequent convictions of the same manner or if a person is injured as a result of the driver’s behavior or actions.  In addition to these penalties, convicts must also complete an approved alcohol education and treatment program before the boating license will be reinstated.


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