Breath & Blood Alcohol Testing Under the New Mexico Implied Consent Act

Under the Implied Consent Act (ICA), every person driving a vehicle within the state of New Mexico is deemed to have given his or her consent to a breath alcohol test and/or blood alcohol test if suspected of DWI.

Under the ICA, every time an individual gets behind the wheel of a car in New Mexico, that person automatically gives consent to a blood alcohol test if arrested for any acts committed while driving under the influence of either drugs or alcohol or both. If a law enforcement officer has reasonable grounds to believe that an individual was driving a vehicle under the influence of drugs or alcohol, the officer may order a blood test or administer a breath test or both.

A law enforcement officer usually administers breath tests. However, under the ICA, only a physician, licensed professional, nurse, or lab technician employed by a hospital or physician can withdraw blood for the purposes of testing the level of alcohol and drugs present. The person being tested has the right to have a qualified physician, technician, etc. of their choosing to perform an additional chemical test besides the one being ordered by law enforcement. The law enforcement agency that orders the tests is responsible for the costs of both the test ordered by law enforcement and the additional chemical test, if requested by the arrestee.

The results of the blood and breath tests can be used in criminal and civil cases involving the actions allegedly committed by the person driving under the influence. Blood alcohol test results create a number of assumptions when used in court. Under § 66-8-110, if a person‘s blood alcohol level is below .04, there is a presumption that the person was not under the influence of alcohol. Also, when an individual‘s blood alcohol level is between .04 and ,08, there is no presumption that the individual was under the influence unless he or she was driving a commercial vehicle. To determine whether the person was under the influence in this case, other evidence will be considered along with the individual‘s blood alcohol level. When a person is driving a commercial vehicle, he or she is presumed to be under the influence if alcohol if their blood alcohol level is .04 or above.

The ICA is also very strict with underage drivers who get behind the wheel while under the influence of drugs and alcohol. Under the ICA, individuals less than 21 years of age driving with and alcohol level of .02 or over will have their driving privileges revoked.

Under § 66-8-108 if a person is incapable of refusal, that person shall be deemed not to have withdrawn consent. A person may be rendered incapable of refusal if they are unconscious, dead, or suffering from any other condition that may make refusal impossible. However, since the person is deemed not to have withdrawn consent, alcohol level tests ordered by a law enforcement officer may be administered to a dead or unconscious person.

If a person refuses to consent to a blood or breath test, they are in violation of the ICA and can be charged with aggravated DWI under NMSA § 66-8-102(D)(3). Refusing of consent will also result in the automatic revocation of an individual‘s driver‘s license.

If you have been charged with DWI and you refused testing under the Implied Consent Act, it is important to understand your rights under the law. An experienced DWI defense attorney can help you do just that.


Related Reading:
New Mexico‘s Implied Consent Act Leaves No Room for Indecision in Consent to Alcohol Testing
DWI/DUI: License Revocation Under the New Mexico Implied Consent Act
Independent Blood Test in New Mexico DWI/DUI Cases

Collins & Collins, P.C.
Albuquerque Attorneys

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