The New Mexico Implied Consent Act

Under the Implied Consent Act, under the New Mexico Motor Vehicle Code, every person driving a vehicle within the state of New Mexico is deemed to have given his or her consent to a breath and/or blood alcohol concentration test if arrested for DWI.  

Specifically, Section 66-8-107(A) of the New Mexico Motor Vehicle Code states in relevant part:

“Any person who operates a motor vehicle within this state shall be deemed to have given consent… to chemical tests of his breath or blood or …for the purpose of determining the drug or alcohol content of his blood if arrested for any offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while under the influence of an intoxicating liquor or drug.”

Though the law implies that you have consented to chemical testing, you have a right to refuse.  However, there are some pretty serious consequences of refusal.  First, because driving is considered a privilege and not a right, the Department of Motor Vehicle can revoke that right for good cause and with rather nominal protections.

In short, refusal to submit to the chemical testing will result in automatic revocation under Section 66-8-111(B) of the Code which again in relevant parts states:

“… the person refused to submit to a chemical test after being advised that failure to submit could result in revocation of the person‘s privilege to drive, shall revoke the person‘s New Mexico driver‘s license …for a period of one year …”

There are additional consequences as well.  Automatic loss of driving privileges for one year is rather serious.  Perhaps most serious and of greatest interest depending on one’s perspective is the fact that a refusal to submit to chemical testing will result in a charge of Aggravated DWI under Section 66-8-102(D)(3).

A charge of Aggravated DWI carries significantly greater consequences than that of a non-aggravated charge.  Aggravated DWI carries mandatory jail time even for a first time DWI offender.  For an aggravated first DWI, the mandatory jail time is 48 hours.  The consequences are ratcheted up for repeat offenders.

Keep in mind that there is no mandatory jail time for first time offenders.  In fact, the great majority of first offenders are entered into the First Offender Program which carries no jail time.  Therefore, a refusal to submit to chemical testing should be carefully weighed against the possible consequences.

A lack of chemical test results may in fact make the prosecution for DWI more difficult.  Keep in mind that the license revocation is automatic so there is no possible benefit to your license in refusal.  In addition, there is what is tantamount to a shifting of burdens in DWI prosecutions.  Under New Mexico law, the prosecutor need only show that the driver was “impaired to the slightest degree” by alcohol or drugs.

This provision in the law was in fact implemented to address those cases where the driver refused chemical testing.  Unfortunately, it has been greatly expanded in reach over the years to allow DWI charges against those below (often significantly below) the presumed legal limit of .08.

In short, by driving in the State of New Mexico, it is implied that you have consented to chemical testing in the event of a suspicion of driving under the influence of drugs or alcohol.  Revoking your consent by a refusal has serious consequences and should not be taken lightly.

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