Many clients are very surprised when they are charged with DWI/DUI when their blood alcohol level is below the legal standard of .08. In fact, the police regularly arrest these drivers and the District Attorneys, particularly in Albuquerque, routinely prosecutes these “below the limits” cases.
The District Attorney in Albuquerque brings DWI/DUI cases for drivers at .03 or .04. This practice is shocking to the driver who thought that he or she was behaving responsibly.
The New Mexico Court of Appeals has struck one more blow against these well-intentioned drivers in State v. Pickett. NMSA 66-8-102(A) states: “it is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.”
The Court cited approvingly the language in State v. Sanchez which stated “a person is under the influence … if as a result of drinking [the driver ] was less able to the slightest degree…to handle a vehicle…” The court referred to this standard as “impaired to the slightest degree,” a term established in State v. Neal.
The Court stated that in order to convict the Defendant, the State needed only prove that the defendant was less able to the “slightest degree” to safely operate a vehicle. Remarkably, the court allowed in otherwise inadmissible evidence for the determination of impairment to the slightest degree. Though the breath test scores could not be admitted, the test was allowed to be used to show there was alcohol in the defendant‘s system.
Essentially, an officer will be able to make the determination of impairment to the slightest degree at his or her discretion. The officer may conduct field sobriety tests which are horribly subjective, and susceptible to abuse. Then on the basis of what the officer determines weak fields sobriety tests, the officer may then take the blood alcohol tests.
The catch for the driver is that if you refuse, your license is automatically revoked even if you win your trial.
Once the officer determines there is alcohol in your system, and that you performed poorly on the field sobriety tests, he may arrest you and charge you with DWI/DUI. This absolute discretion on the part of the officer is the basis for the below the limits cases that we are now regularly seeing in court at levels as low as .03. And the District Attorney is prosecuting these with the same level of zeal as an aggravated DWI/DUI.
The problem is clear. I think history has shown that it is not a good idea for civil rights or liberty to allow police officers absolute discretion. The potential for abuse is too great.
And though the great majority of police officers are honest and conscientious, there are bad apples as in any profession. A dishonest mechanic is just painful on the wallet. Police officers have the power to destroy lives on what amounts to the most vague possible standard that could be drafted for DWI/DUI.
New Mexico‘s Impaired to the Slightest Degree DWI Standard Has to Go!
Medical Grounds of Inadmissibility Redefined to Possibly Include DWI
The Problem With Under the Limits DWI Arrests in New Mexico