In New Mexico, the short and disappointing answer is yes you can be convicted of DWI in New Mexico at breath or blood alcohol levels below .08. In fact, it happens with regularity.
This is not only disappointing but very surprising for those caught in this situation. In fact, many law abiding citizens assume that .08 is the legal limit. They gauge their drinking behavior accordingly. Many bars and restaurants provide breath alcohol testing devices to protect against driving over .08. Many individuals buy their own.
Impaired to the Slightest Degree Standard
When all is said and done, despite all the efforts to stay below .08, the .08 level is sometimes rendered meaningless. The standard for DWI in New Mexico is “impaired to the slightest degree.” What this means is open to some heated debate.
It might be forcefully argued that this is no standard at all since it basically boils down to a standard of “you are impaired if the officer says you are impaired.” Though argued with great regularity, the courts including the appellate courts in New Mexico, have found this to be a perfectly acceptable standard no matter how vague and open to abuse that it may be.
Per Se or Presumptive Standard of .08
So you might be asking if the standard is “impaired to the slightest degree,” what does the .08 mean. Basically, if you blow .08 or above, the presumption is that you are impaired. It essentially shifts the burden to you to prove that you were not impaired. This can be pretty difficult and the best way around it is to keep the the breath card out of evidence if possible.
Once in evidence, it is very difficult to convince a judge that you were not impaired. Depending on the jury, it can be equally difficult to convince a jury of this fact. Keep in mind, however, that you are not entitled to a jury on a first time DWI in New Mexico. So you are likely to be facing a judge on a first offense.
As stated, you are not allowed a jury trial in a DWI first offense. As such, you will be facing a judge. There are some judges that heartily embrace the “impaired to the slightest degree” standard no matter how weak the evidence of impairment. Others are much more thoughtful. It is important to know which kind of judge you have as early as possible.
Specifically, it is important to know right away as you have only 10 days from the date of arraignment to recuse a judge (ask for another judge). Don’t get too excited about this! You only get one recusal absent extraordinary circumstances. And more important for consideration, as they say, you might jump out of the frying pan and into the fire. In short, the next judge you get may be even more enthusiastic about the “impaired to the slightest degree” standard than the first.
These are discussions you should have with an attorney who is knowledgeable of both the DWI standards and the local judges. You should have this conversation right away. As mentioned, you have only 10 days to change judges and this can be a very important decision in your case.