Defenses to New Mexico DWI Charges

A number of defenses are commonly raised to DWI charges in New Mexico.  Many are closely related to the elements of a DWI offense under New Mexico law as well as the arresting officer’s actions and perceptions.

No Reasonable Suspicion to Stop

One common defense to New Mexico DWI is that the officer did not have reasonable suspicion to stop or approach the vehicle and driver.  In New Mexico, an officer must have reasonable suspicion to stop the vehicle and detain a driver.  Reasonable suspicion is a legal standard that requires less proof than probable cause, but is more than a hunch.

Among the common situations where an officer usually has reasonable suspicion to stop or approach a driver is when a driver is involved in an accident, the driver is stopped at a sobriety checkpoint, law enforcement has receive a report of erratic driving, the officer has observed erratic or suspicious driving, or the officer has stopped the vehicle for another traffic offense and notices signs of intoxication.  If the officer did not have reasonable suspicion to stop the vehicle or approach the driver, then the remainder of the DWI investigation is invalid which means the case should be dismissed.

No Probable Cause to Arrest

Similarly, another regular defense to DWI is that the officer lacked probable cause to arrest the defendant.   Probable cause requires proof of factors beyond reasonable suspicion. To establish probable cause, there must be evidence that would lead a reasonable person to believe that the defendant was driving while intoxicated.  Evidence that would establish probable cause include blood and breathalyzer test results, field sobriety test results, and evidence of the defendant’s erratic driving or behavior after he or she has been stopped.

Not Driving

Another less common defense is that the defendant was not the “driver” of the vehicle or did not have “actual physical control” of the vehicle.  There are a number of situations where this defense might arise.  The most common is when a person sits in his or her car to stay out of the cold, sober up or “sleep off” their intoxication.  In this case, the person is not “driving” the vehicle and does not have the requisite intent to drive in a case where the vehicle is not in motion.  Up until quite recently, drivers were charged with DWI for sleeping in their car.  Recent caselaw has curtailed this practice.  There remain situations where someone sitting in their car can be charged with DWI but the practice is less common and the burdens on the prosecutor singificantly higher to get a conviction in these situations.


Though much less common than the other defenses, duress has also been used as a defense in a few New Mexico DWI cases.  Two important cases, State v. Rios and State v. Tom, discuss the defense of duress in the context of strict liability DWI. In those cases an intoxicated person is threatened by an angry mob, seeks refuge in their car, and is subsequently forced to move the car as the crowd continues to threaten him or her.  For a successful defense of duress in New Mexico, a defendant will have to prove four elements: (1) the defendant was forced to act under unlawful threat of imminent death or serious physical injury, (2) the defendant did not violate the law due to his or her own recklessness, (3) there was no reasonable legal alternative, and (4) the defendant’s actions were directly caused by the threat.

Other Defenses

There are other possible defenses as well depending on the circumstances.  Many of these are variations on or derivations of the defenses above.  Others involve issues related to the breath alcohol testing.  For instance, it is commonly argued that the officer did not follow proper procedures in the DWI investigation and detection, the post arrest requirements on a valid minimum 20-minute depravation, the implied consent advisories to the driver, and the procedures for testing blood and /or breath alcohol concentration test.   This last one on testing procedures raises a whole host of issues, each of which might provide a basis for a defense.

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