The question of consequences for refusal of a DWI breath test comes up in many New Mexico DWI cases. There are some pretty serious and immediate consequences. However, they are not exactly what many might expect.
There are two sets of consequences for refusal of the breath alcohol test. The first set relates to your driver’s license. These consequences are independent and separate from the second set of possible consequences under the DWI criminal prosecution.
Driver’s License Consequences for Refusal of the Breath Alcohol Test
The consequences for your driver’s license are immediate and pretty severe. A refusal of the breath alcohol test will result in an immediate one year revocation of your driver’s license, even on a first time offense.
In those DWI cases where a breath alcohol test has been taken, the accused driver is entitled to a hearing on the revocation of his or her license so long as the request for hearing is submitted within 10 days of the DWI arrest. In cases of refusal of the breath alcohol test, there is no such hearing. The license is simply revoked for 1 year.
Criminal Consequences for Refusal of the Breath Alcohol Test
The criminal consequences can be even more serious though not necessarily automatic. A refusal does result in an automatic charge of aggravated DWI. Aggravated DWI is pretty serious. A conviction of aggravated DWI results in mandatory jail time even on a first time DWI offense.
Though the charge itself is automatic, a conviction is not. Unlike the driver’s license revocation, you are entitled to full due process including a criminal trial. An aggravated DWI must be proven beyond a reasonable doubt just like any other DWI or criminal charges.
This means that the district attorney must prove every element of the aggravated DWI. First, the district attorney must prove that you were driving under the influence of alcohol. In the absence of a breath alcohol score this is made a little more difficult. However, the laws in New Mexico have developed to account for this hurdle though the “impaired to the slightest degree standard.”
Since the district attorney will not be able to prove that the driver was driving at or above .08 breath alcohol score, the district attorney need only prove that the driver was impaired to the slightest degree by alcohol. This is a fairly minimal standard.
Once the driving under the influences element has been proven, the district attorney need only prove that the defendant refused the breath alcohol test for conviction and sentencing as aggravated DWI.
An Experienced DWI Defense Attorney Can Help
Any DWI charge merits an experienced DWI attorney. Aggravated DWI resulting from a refusal of the breach alcohol test in particular suggests immediately hiring an experienced attorney due to the more severe possible consequences.
The Albuquerque attorneys at Collins & Collins, P.C. have extensive experience in DWI defense. We can be reached at (505) 242-5958 .