Types & Elements of New Mexico DWI Offenses

There are several types of alcohol and drug related offenses in New Mexico.  NMSA § 66-8-102 outlines the law regarding DWI in the State of New Mexico.

New Mexico DWI offenses fall into three main categories: (1) “simple” DWI, (2) per se or “BAC” DWI, and (3) “aggravated” DWI.  Simple DWI is defined as driving while under the influence of drugs or alcohol.  Per se DWI occurs when an individual drives with a blood alcohol concentration (BAC) level above the statutorily permitted limit (.08), regardless of whether the individual shows visible signs of intoxication.  Aggravated DWI can occur when the driver has a BAC of .16 or above or refuses to take the breath alcohol test.  Aggravated DWI can also occur when a person drives under the influence of drugs or alcohol and commits additional infractions.

The presumed level of impairment is .08 for passenger vehicles and .04 for commercial vehicles.  However, it is important to keep in mind that one need not be .08 to be found driving under the influence in New Mexico due the “impaired to the slightest degree” standard applied by the courts.  As stated, aggravated DWI consists of driving with a blood alcohol level of .16 or over, causing injury to another while driving under the influence and/or refusing to submit to a blood alcohol test.

Some elements are common to all DWI offenses.  The elements simply stated are:  (1) under the influence of either intoxicating liquor or drugs (2) while driving a vehicle (3) within the state.  A prosecutor will have to prove all of these elements to obtain a DWI conviction against a defendant.

“Under the influence” is not defined in the statute, but case law has defined it as being less able to exercise the necessary “clear judgment and steady hand” to operate a vehicle as a result of consuming intoxicating liquor and/or drugs.   This often surprises drivers who are charged at much lower levels that the generally recognized .08 standard.

“Intoxicating liquor” includes alcohol, distilled spirits, potables and aromatic bitters excluding medicinal bitters.  “Drugs” includes prescription medicine as well as illegal substances.  The prescription drug issue has caught many by surprise with drivers being charged for all varieties of prescription drugs including Ritalin which is prescribed for the very purpose of increasing attention and focus.

“Driving” includes the actual operation of the vehicle as well as putting oneself in the position to commence operating a vehicle with an intent to drive.  In certain cases, where an intoxicated individual merely enters their car to “sleep off” their intoxication, it can be argued that there was no intent to drive and therefore no DWI.  Fairly recent case-law has lessened the somewhat nonsensical tendency of some officers to charge people with DWI while they were sleeping in their car for the very purpose of avoiding DWI.

“Vehicle” applies to passenger cars, trucks, commercial vehicles, and any other device used for transportation on public roads.  “Vehicle” has been found to apply to farm tractors and mopeds for DWI purposes in New Mexico.  It should also be noted that New Mexico has specific DWI rules in the Off-Highway Motor Vehicles Act (NMSA §66-3-1001) that apply to vehicles such as snowmobiles and ATVs and the Boating While Intoxicated Act (NMSA § 66-13) that applies to watercrafts.

“Within the state” includes DWI occurring on both public and private property.  If it occurs in New Mexico, it may be charged under New Mexico DWI law.  However, the Courts may differ depending on where it occurred.  This issue comes up frequently with DWI on Tribal land or on the military bases.

Aditional Reading on New Mexico DWI Issues from our DWI Blog

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