It is comes as a surprise to many that their license may be revoked even though they eventually win their DWI/DUI case.
In fact, the Implied Consent Act under the New Mexico Motor Vehicle Code calls for the automatic revocation of your license if you blow .08 or above on the breath alcohol test (.04 for commercial drivers, and .02 for minors) or you refuse the test.
The length of the revocation depends upon whether the DWI/DUI is a first offense or a repeat offense.
Under the Implied Consent Act, it does not matter that your DWI/DUI case is eventually dismissed or even if you win your case at trial. The MVD revocation is automatic once you register .08 on the breath alcohol test or refuse to take the test.
The only way to insure that you keep your license is to fight your case at the MVD Revocation Hearing. In order to do this, you must request a hearing by mailing the MVD Request for Hearing within 10 days of your arrest for DWI/DUI. You must enclose $25.00 with your request or the request will be denied.
If you fail to mail the request within 10 days or fail to enclose the $25.00, your license will be automatically revoked!
If you do request the hearing, your attorney will attend the Revocation Hearing. The good news is that you do not have to attend this hearing. Only your attorney must attend.
The bad news is that these hearings are almost a rubber stamp for the revocation of your license. The only issues addressed at the hearing are whether:
- The law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle while under the influence of alcohol or drugs;
- The person was arrested;
- The hearing is held no later than 90 days after the notice of revocation (date of arrest);
- The person blew .08 on the breath alcohol test (.04 for commercial vehicles and .02 for minors) or the person refused the breath alcohol test after being advised that refusal could result in automatic license revocation.
The standard at the MVD hearing is very low. It is a preponderance of the evidence which means the officers must simply show that more than likely you are guilty of driving while under the influence of alcohol or drugs.
There are no rules of evidence so the police can offer pretty much anything they wish to prove your guilt. The MVD Hearing Officers will very rarely dismiss the case once it gets to a hearing.
So how do you win these? You or your lawyer shows up and hopes that the police officers do not show up. Both the officer that stopped you must show up to prove element (1) above, the DWI/DUI Officer must show up to prove the rest.
If both officers do not both show for the hearing, the case is dismissed. If they show, then your attorney has a good opportunity to interview the officers in preparation for the defense against the DWI/DUI charges in criminal court where you have much greater rights, and many more opportunities to present a defense.