Albuquerque Criminal Lawyer Blog

Under New Mexico's Implied Consent Act, any driver arrested for DWI is deemed to have given consent to "chemical tests of his breath or blood or both." Refusal of the tests results in both the automatic one year revocation of the driver's license and charges for aggravated DWI.

On occasion, a driver may decline the test then later change his or her mind. The question that will arise is whether the change of heart is sufficient to avoid the consequences of a refusal. The answer is that it probably will not.

There are many states that consider any refusal no matter how brief to be a violation of the Implied Consent Act thereby resulting in the all the consequences associated with a refusal. New Mexico takes a more liberal approach. However, it is only slightly more liberal.

The rule in New Mexico was set forth in the 1994 New Mexico Supreme Court case of State v. Suazo. The Court in Suazo adopted a subsequent consent rule with several strict parameters. The change of heart must come within a reasonable length of time necessary to understand the consequences of a refusal. In The consent must come within a time frame when a test would still be accurate. Finally, there must be no substantial inconvenience or expense to the police necessitated by the change of heart.

This all might seem a little vague but the court cleared things up when it stated that the time allowed for a change of mind would be a "very short time, never more than a matter of minutes." The Court made clear also that the burden is on the driver to prove the reasonableness of the change of mind.

In short, a refusal of the breath alcohol test carries very serious consequences including automatic one year revocation of driving privileges and charges for aggravated DWI which carries mandatory jail time on conviction. Under Suazo, the decision of whether to consent must be made almost immediately. Indecision or delay is not in the driver's favor and will be strictly construed against the driver.

Collins & Collins, P.C.
Albuquerque Attorneys

The MVD hearing following a DWI arrest has always had pretty low standards for drivers license revocation. Essentially, if the cops showed for the hearing, it was almost a foregone conclusion that the license would be revoked.

Basically, once the hearing began, the officers need only show that they legally stopped the driver, the officer had reasonable grounds to believe the driver was driving while under the influence, the person was arrested, the hearing was held within ninety days of arrest, and the driver either blew over .08 or refused the breath alcohol test.

These were pretty low standards. The only possible basis for winning the revocation hearing was showing the stop was illegal. But even this offered a glimmer of hope, and a small thread of due process. It was small indeed. In actuality, the officer would basically have to admit that the driver was stopped illegally to lose the hearing once it commenced. Few officers would ever make such an admission.

Despite the extremely low standards for revocation, the standards just got even lower as a result of the New Mexico Court of Appeals decision in Glynn v. New Mexico Tax and Revenue, Motor Vehicles Division. Remarkably, the Court determined that the first element was no longer necessary. More remarkably, the Court held so despite the protestations of the MVD.

MVD argued that the MVD hearing officers had authority to determine the legality of the stop under the 4th Amendment. In fact, MVD stated that this had always been a part of the hearing arguing that "whether a stop is justified by reasonable suspicion is implicitly within the scope of MVD's statutory authority."

The Court disagreed flat stating "Fourth Amendment requirements is not a necessary element of a license revocation under the Act." The Court thus concluded that the exclusionary rule did not apply either.

The result is that officers are free to stop vehicles under whatever pretense and the license revocation will move forward so long as there a .08, a refusal and the hearing is held on time. The U.S. Constitution simply has no place in the MVD driver's license revocation hearing.

The MVD hearing is now no more than a sham formality whose purposes defy reason. There really is no need for the pretext of fairness or justice. The only remaining element for revocation is now whether the driver blew over .08 or refused the test. Is a hearing really necessary for this determination?

Collins & Collins, P.C.
Albuquerque Attorneys

Many mistakenly believe it is in their best interests to refuse the breath alcohol test (breathalyzer) on a New Mexico DWI stop. The fact is that refusal has some pretty serious consequences with little possible trial benefits.

Refusal to take the breathalyzer results in some rather harsh consequences. First, a refusal results in an automatic one year drivers license revocation for a first time DWI under the New Mexico Implied Consent Act. Second, a refusal results in a charge for aggravated DWI which carries mandatory jail time for conviction. The mandatory jail time varies with the number of prior DWI convictions. For a first time DWI offender, an aggravated DWI carries 48 hours mandatory jail. It gets increasingly more severe for subsequent convictions.

So why the misconception about the refusal's benefits at trial? A .08 breath alcohol score results in a presumption of driving while intoxicated which is hard to overcome. A .16 or above is aggravated. Some believe that if there is no breath score, then it is harder to prove driving while intoxicated. This would make much more sense if the standard in New Mexico was not "impaired to the slightest degree." In other words, the true standard for the prosecutor to meet is whether or not alcohol impaired the driver's ability even to the slightest degree. This provision was in fact inserted in the statutes to address those drivers that refuse the breathalyzer. Unfortunately, its use has been significantly broadened and is used now routinely on drivers below .08.

So now the driver who has refused has suffered much more serious consequences. In addition, the standard is impaired to the slightest degree which is a very low standard if any standard at all. The jury is presented with testimony that the driver was in fact drinking which is typically not too hard to prove. The jury is also presented with a defendant driver who refused the breath alcohol test. Jurors who often assume guilt from the outset of trial expecting the defendant to prove his or her innocence now have a fairly easy logical conclusion on which to hang their prejudice. They might and do ask, if he wasn't drunk then why did he refuse the test?

Don't forget that the State still has the field sobriety tests on which to base their arguments. Police officers now often video the field sobriety tests, and this video is crucial evidence in the case. Even without the video, the officers will document each and every misstep on the field sobriety tests. Make no mistake, these tests are a challenge under the best of circumstances. The circumstances are hardly ideal in most DWI stops.

In conclusion, refusing the breathalyzer carries substantial risks with questionable value. Despite the myths, there is no fool proof strategy to beat a DWI charge except to avoid drinking and driving in the first place.

Collins & Collins, P.C.
Albuquerque Attorneys