The question of what happens when a breath alcohol test is failed following a DWI arrest comes up frequently.  Like most questions regarding the breath alcohol test (BAT), there are several parts to the answer.

It should be noted that a failed breath test, unlike a refusal to take the breath test, does not result in automatic revocation of you driver’s license.   You are entitled to a hearing.  However, the hearing almost a mere formality if minimal evidence is presented and there is very good possibility that the failed breath test will result in a license revocation.

Right to a MVD License Revocation Hearing

In case of a failed BAT, you have a right to a hearing with the MVD.  A failed breath test under MVD rules means a breath alcohol score of .08 or above.  This is a point of confusion and the result of many seemingly unfair results.

> Impaired to the slightest degree standard does not apply to MVD License Revocation Hearings, .08 or above is required.
The confusion lies in the “impaired to the slightest degree” standard in DWI criminal cases.  For a DWI conviction, it is not necessary that the district attorney prove that the driver was .08 or above.  Instead, the DA must simply prove that the driver was driving while impaired to the slightest degree by alcohol (or drugs).

The impaired to the slightest degree standard does not apply to license revocation.  Your license will not be revoked if your breath alcohol was below .08.

Request for MVD License Revocation Hearing

You have only 10 days from the date of arrest for DWI to mail in the Request for Hearing.  If you miss the deadline, your license will be automatically revoked and no hearing will be set.

Hearing request must be submitted within 10 days of arrest along with $25.00.
In addition to the 10-day deadline, keep in mind that you must mail with your request a check for $25.  If you fail to include the check, no hearing will be set and your license will automatically be revoked.

You can find the Request for Hearing on the MVD forms page under Hearing Requests.  The Request form will walk you through the requirements.  You should check the Implied Consent box and the box next to “I want the officer to be a witness at my hearing.”   The why for this will explained below.

Defense Against Revocation at MVD Hearing

> Minimal evidence requirements required at hearing for revocation of license.
Once you have blown .08, there are not a lot of defenses at the MVD hearing. The requirements for revocation are pretty minimal:

  1. The officer had reasonable suspicion to believe that the person had been driving while under the influence of alcohol or drugs;
  2. The person was arrested;
  3. The hearing is held no later than 90 days after the notice of revocation (date of arrest);
  4. The person blew .08 on the breath alcohol test (.04 for commercial vehicles and .02 for minors).

Unlike the criminal trial, there is no substantial opportunity to challenge the breath test.

In order for the state to prove these very minimal requirements, the officer must be present.  That is why you request his presence at the hearing.  Otherwise, there really is no defense.  If you do request the presence of the officer, and he or she does not show, the case will be dismissed.

The failure to show on the part of the officer is typically the best possible and often the only possible way to keep your license. However, the 1st requirement can on occasion be effectively disputed.  Interestingly, this requirement was suspended for quite some time by the New Mexico Court of Appeals but later reinstated by the New Mexico Supreme Court in State v. Glenn.

You Do Not Have to Attend the MVD Hearing if You Have an Attorney

If you have an attorney, the attorney can attend the hearing on your behalf.  You do not have to attend.  In the alternative, you do not have to have an attorney.  You can attend and defend against the revocation on your own.

An attorney is not necessary but one is advisable.
It is worth having the attorney attend for a number of reasons:

  1. The officer may not show.  However, if you or your attorney are not there, then your license is revoked anyway.
  2. The attorney will conduct the hearing and, on occasion, can prove to the hearing officer that there was no basis for the DWI stop.  There are numerous ways a stop can be illegal and only by way of hearing will any of them ever come to light.

Experienced DWI Counsel Can Help!

It is important to obtain the services of an experienced DWI attorney from the beginning.  The attorney will prepare for and attend the MVD hearing.  The attorney will often learn a great deal about the case during that hearing that may be used during the criminal defense of your charges.  This is typically the case even when you lose the MVD hearing.

Collins & Collins, P.C. has significant experience in the defense of DWI charges including the MVD revocation process.  We can be reached at (505) 242-5958