What is the Difference Between a Simple, Aggravated and Per Se DWI?

DWI can be charged in number of ways from misdemeanor to felony, from simple to aggravated.  The "per se" limits rules will apply to all.
DWI can be charged in number of ways from misdemeanor to felony, from simple to aggravated. The “per se” limits rules will apply to all.

DWI is charged in a number of ways in New Mexico.  DWI can be charged as a misdemeanor or a felony.  Whether felony or misdemeanor in nature, DWI may be charged as a simple DWI or aggravated DWI.

In addition, there is a per se DWI.  DWI is not necessarily charged as per se DWI but it is inherent in the New Mexico DWI statutes.  Per se DWI means that if your breach/blood alcohol level reach a certain level, it is presumed that you were impaired.  The per se breath/blood alcohol level varies depending upon whether you are charged with simple or aggravated DWI.

It is important to understand the laws governing DWI.  Because there are serious consequences for DWI charges which escalate according to the nature of the charges, it is important to seek the guidance of an experienced DWI attorney right away after you have been charged.


Proof of Your Impaired Driving or Blood Alcohol Level Concentration (“BAC”) Can Help Convict You

The DWI/DUI laws are enforced by either proving or providing proof of impaired driving or by proof of a prohibited specific blood alcohol concentration (“BAC”) level above 0.08, which presumes that the driver was impaired and therefore has violated the statutes.

Since driving under the influence (DUI) of drugs cannot be proven by use of a Breathalyzer test, the law allows for providing proof of impaired driving, i.e., a “simple impairment” DWI/DUI. For driving while intoxicated (DWI), the proof is easier, as a quick Breathalyzer test can create the rebuttable presumption of having violated the DWI law, i.e., a “per se” DWI.

Under the Influence Means that Your Driving was Impaired to the Slightest Decree

A “simple impairment” and/or “simple” DWI/DUI violation applies more readily to a driving under the influence of drugs charge, since a court will be looking at whether your driving was “impaired to the slightest decree” due to the use of any drug. Although, a Breathalyzer test can turn a “simple” DWI into a “per se” DWI, it is not necessarily true for a “simple” DUI, since drug tests are not as readily available as a Breathalyzer test. Without a BAC level or a drug test result, the State of New Mexico can still prosecute for a DWI/DUI by proving that your driving was impaired to the slightest degree, by the traffic citations received or by refusing to take the Breathalyzer test.

A BAC of at Least 0.08 Means that You Are Presumed to be Legally Impaired

A “per se” DWI violation, means that if you are stopped by a police officer under suspicion of driving while intoxicated, and your Breathalyzer test shows a blood alcohol concentration (“BAC”) level of at least 0.08, you are presumed to have been driving while intoxicated and therefore violated the statute, without having to prove that your driving was impaired to the slightest degree. You are therefore presumed to have violated the law and it is your attorney’s job to overcome that presumption with your criminal defense.

An Aggravated DWI/DUI Carries Higher Penalties

An “aggravated” DWI/DUI arises under situations, such as when you refuse to submit to the Breathalyzer test, your Breathalyzer test BAC level is over 0.16 or there are other accompanying traffic infractions associated with the traffic stop, such as causing a wreck, or a wreck that involves bodily injury to another person, and can subject you to higher penalties, such as more jail time.

By Having a New Mexico Driver’s License you Consent to Chemical Testing

Refusing to take a Breathalyzer test when you are being investigated for a DWI/DUI is charged as an “aggravated” DWI/DUI, because of the simple fact that when you receive a New Mexico driver’s license you gave consent to the State of New Mexico to measure your alcohol concentration level. Under the Implied Consent Act, in exchange for receiving a New Mexico driver’s license, a driver consents to having their blood alcohol concentration level tested if arrested under suspicion of a DWI/DUI.

You can Refuse Chemical Testing

Although, you have a right to refuse the chemical testing, a refusal will result in an automatic revocation of your driver’s license for a year and a charge of “aggravated” DWI/DUI, which can be proven in court with a showing that your driving was “impaired to the slightest decree.”

Consult With an Experienced DWI/DUI Attorney

As you can see, a charge of DWI/DUI which seems easy and clear cut to defend, can actually be very complicated, and therefore, you should seek competent and experienced counsel to represent you. The attorneys at Collins & Collins, P.C., are experienced in these types of cases and are ready to represent you in these cases.

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