Albuquerque Criminal Lawyer Blog

Though New Mexico Motor Vehicle Division has no authority to revoke an out of state drivers license, a New Mexico DWI may still impact an out of state license. Many states such as Arizona will give the New Mexico order of license revocation full faith and credit for the period of revocation. As a result, an out of state driver may lose driving privileges in his or her own state as result of a New Mexico DWI.

New Mexico MVD will often, though not always, report the DWI to those states that recognize its orders of revocation. As a result, the out of state driver though still in possession of his or her license may find that their driving privileges have been revoked or suspended in their own state. The issue most often comes up when the driver has to renew his or license.

In order to reinstate their license in their home state, they must jump through some hurdles at the New Mexico MVD. However, the hurdles are substantially less for out of state drivers than New Mexico drivers. Under New Mexico DWI laws, a revocation carries a mandatory 6 month interlock license and interlock device on the driver's vehicle. The interlock laws do not typically apply to other states as most other states have no comparable laws. This is changing with National Ignition Interlock legislation gaining support.

Since the interlock laws do not apply to most other states at this time, once the 6 month revocation period has expired, the out of state driver need not prove the 6 month interlock requirement has been met as is required of New Mexico drivers. The driver need only provide proof to New Mexico MVD that he or she is a resident of another state and pay a $100.00 reinstatement fee to New Mexico MVD. This should provide clearance of the out of state license so that it will be unrestricted in the home state.

Keep in mind that the MVD hearing and license revocation is completely separate from the DWI criminal case. Therefore, even if the driver wins his or her criminal case or the case gets dismissed, the MVD penalties still fully apply. This comes as a great disappointment to many no matter how many times it is explained as it just seems manifestly unfair and unjust that the MVD revocation stands despite the dismissal of the underlying DWI. Unfortunately, it is simply the way the law works.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Ron Bell was arrested and charged with DWI on a blood alcohol score of 0.0. That is not a typo. He was charged under New Mexico's impaired to the slightest degree standard despite the fact that he had no alcohol in his system.

The charges have been dismissed against Ron Bell. The fact is the charges should have never been filed to begin with. Nor should the many under the limits DWI/DUI cases that are routinely charged in New Mexico exposing the under the limits drivers to the full consequences of a DWI/DUI conviction despite the fact that they were under the .08 legal limits. The case against Ron Bell perfectly illustrates the possible problems with the impaired to the slightest degree standard.

Ron Bell's face is etched in the minds of every man, woman and child in the Albuquerque metropolitan area. You can hardly leave your home without seeing one of his advertisements. The arresting officer most certainly knew Ron Bell. A 0.0 blood alcohol reading resulting in a DWI arrest suggest something other than a legitimate suspicion of DWI.

Perhaps the officer doesn't like Ron Bell or his advertisements. Perhaps he doesn't like lawyers. Lots of people don't. There are a number of illegitimate reasons that could have led to the arrest of Ron Bell on a 0.0 blood alcohol reading. Impaired to the slightest degree gives officers absolute discretion in making an arrest, for both legitimate and illegitimate reasons. The lack of any real standard can lead to abuse. An arrest on 0.0 at the very least raises the question of motive.

The question of motive could and does come up frequently in below the .08 limits DWI arrests. What if it is not lawyers an officer does not like but blacks, Hispanics, whites, women, gay men or women, people with the wrong bumper stickers, people that voted for Obama, people who voted McCain, people with purple hair or people that just plain rub the cop the wrong way. In any of those cases as happened here, the officer can make a DWI arrest despite the lack of any real impairment based upon any number of contrived basis. Unfortunately, unlike Ron Bell, most people faced with a similar wrongful arrest lack the resources to fight the charges. Instead, the courts routinely convict these people. After all, we live in a state where the supreme court had to stop the practice of arresting people for sleeping while intoxicated.

In short, impaired to the slightest degree is no legal standard at all. It is whatever the officer says it is. In the best light, it is not fair to officers to force them to make these decisions. In the worst, it is most unfair to subject drivers to the whims of each individual officer. The great majority of officers are honest. Well defined legal standards govern those few on both sides of the law who are not.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court reversed the Courts of Appeals ruling from last year which legitimated DWI/DUI charges against individuals who were sleeping in their vehicles effectively taking the driving out of drinking and driving. The Supreme Court in State v. Simms recognized the absurdity of the prior ruling.

The New Mexico Court of Appeals in State v. Simms had found that a defendant was in control of the vehicle and therefore subject to charges of DWI/DUI. The court found this despite the fact that the defendant was asleep in the vehicle and the keys were not in the ignition. The court reasoned that the defendant could have awoken and drove the car at any time. The court ignored the fact that he had gone to sleep for the very purpose of avoiding driving while intoxicated.

The prior ruling had a number of problems for both well intentioned drivers and the public at large. First, there was no intent requirement to show that the driver in fact had the intention to drive the vehicle. To the contrary, the facts suggested the opposite that the driver was sleeping off the alcohol to avoid driving. This raises the more important point which is that the law as construed by the district court and the appellate court actually had the affect of encouraging drinking and driving. After all, the risks of being detected and arrested in a bar parking lot while sleeping in a vehicle are exponentially higher than the odds of getting pulled over while drinking and driving. In addition, the prior interpretation could have disastrous consequences during the New Mexico winters when a driver is forced with the decision of sleeping outside the vehicle or driving home intoxicated. The prior interpretation and execution of the law was ludicrously opposed to public safety.

The Supreme Court in State v. Simms stated that there must be intent to drive. In effect, there can no longer be a generalized intent to drive as evidenced by proximity to the vehicle. Neither can the issue be couched entirely in the terms of control of the vehicle. Instead, it must be shown that the driver intended to drive the vehicle while intoxicated. The Court in essence adopted the public policy rationale of allowing drivers to sleep off their intoxication. The court stated that the DWI/DUI laws did not have the intention of prohibiting people from simply entering their vehicles. This is particularly the case when a driver is taking shelter from the elements and from the risks of driving intoxicated.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Driving privileges can be revoked or suspended in New Mexico for a variety of reasons. The two most common are DWI/DUI and non-payment of child support. A DWI/DUI arrest almost inevitably results in the revocation of a DWI/DUI offender's New Mexico driving privileges. The revocation is virtually automatic with minimal requirements of the state at the MVD License Revocation Hearing. In the case of first time DWI/DUI, the MVD driver's license revocation is for 6 months. For subsequent DWI/DUI offenses, the revocation is for 1 year. Suspension for non-payment of child support is not as common but used frequently in cases of habitual child support delinquency.

Driving on a Revoked or Suspended License is taken very seriously in New Mexico no matter what the basis for the revocation or suspension. By way of example, a first time DWI/DUI conviction carries a maximum of 90 days in jail. There are no mandatory jail times so that a simple non-aggravated first time DWI/DUI almost always results in First Offender Program with no jail time. By contrast, a first time conviction for Driving on a Revoked or Suspended License carries up to 1 year in jail. In addition, there is a mandatory jail time of 4 days. The mandatory jail time goes up to 7 days if the revocation or suspension was the result of a DWI/DUI. The mandatory jail time is prescribed by statute. The sentence may not be suspended, deferred or taken under advisement. The judge is not allowed to deviate below the minimum sentence no matter what the circumstances. In other words, it is does not matter how or why it happened, nor does it matter that the person is a model citizen in every other way. Upon conviction, the offender is going to jail for the statutory minimum.

Parents whose license are suspended for non-payment of child support often fail to fully appreciate the seriousness of their situation. Consequently, they are very surprised when criminal charges for driving on a revoked or suspended license are brought against them. They are even more shocked to learn that they are facing up to one year in jail and a 4 day minimum jail sentence for conviction. In case of license suspension for non-payment of child support, it is critical that the person work out a compromise with Child Support Enforcement for the reinstatement of driving privileges. A New Mexico divorce and family law attorney will be able to work through that process.

In cases where the license is revoked as the result of a DWI/DUI, it is critical that the person obtain an interlock license and an interlock device on his or her vehicle. The person should not drive any other vehicle during the period of revocation. Should the revoked driver be pulled over for any reason, the officer will check the driver's license status and a revocation will be shown. A failure to present a valid interlock driver's license and/or the absence of an interlock device will result in immediate arrest and charges for Driving on a Revoked License. Due to severity of these charges for a DWI/DUI revoked driver, it important to seek the guidance of a New Mexico DWI/DUI Attorney.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The consequences for DWI/DUI conviction are severe. For repeat offenders, a conviction results in certain jail time. How much jail time is largely dependent upon the behavior of the DWI/DUI offender following arrest.

One does not have to look far to figure out why the consequences for repeat DWI/DUI offenders are growing in severity. Just today, the Albuquerque Journal had an article listing several tragic DWI/DUI accidents that have occurred since February. Of the 6 DWI/DUI accidents listed, 4 involved deaths of innocent victims. Keep in mind, the article only listed accidents since February of this year. Judges and prosecutors have far longer memories of the many tragic and often fatal DWI/DUI accidents that occur each year in New Mexico. According to the DWI Resource Center, there have been an average of 190 deaths per year from 2000 to 2009 keeping New Mexico in the top 10 across the country for these figures over most of this period.

Neither judges nor prosecutors have much patience for repeat offenders in this environment. As a result, repeat offenders have an uphill battle at sentencing. However, there are several things that can be done to help one's cause when facing this situation.

First, STOP DRINKING. PERIOD. This is not optional. Clients say all the time that they do not have a drinking problem. Trust me when I tell you the judge and prosecutor disagree. A first time DWI/DUI indicates a drinking problem. A subsequent offense indicates a serious problem. The worst thing a repeat offender can do for his or her cause is to walk into court and deny a drinking problem.

The remaining steps all surround the first. It is easy for a defendant to walk into court and tell the judge that he or she has stopped drinking. After all, how is the judge to know any better? Unfortunately for the repeat offender, the presumptions are not on his or her side. Once convicted, there are no more presumptions in your favor. This seems too obvious to say but some believe that it is up to the prosecutor to prove they are lying. Not so, the repeat offender must prove that he or she is not.

The only way to do this is through careful documentation. Therefore, a repeat offender should at a minimum begin Alcoholics Anonymous (AA). Frequent attendance is essential, at least 2 -3 times per week. To document attendance, take a sign in sheet which can be obtained from the court or probation/pretrial services. Some AA facilities may have these on hand since many attendees are there for this very reason.

Beyond AA, a repeat offender should be in alcohol and/or drug counseling. Again, many protest that they do not have a drinking problem. In answer to this, please review the paragraphs above. A good counselor can be very beneficial at sentencing. A good counselor will provide thorough documentation of your problem as well as your progress. In addition, a good counselor will document many other aspects of your life, employment, family, character and general history that could be very helpful in minimizing your jail time. Most important, counseling shows the judge that you are serious about addressing your problem.

This gets back to the initial point of this whole exercise. A second DWI/DUI carries a mandatory 4 days of jail, a third 30 days, a fourth 6 months. After that, it gets much worse. Now for the bad news, these are mandatory minimums and judges across New Mexico are growing increasingly reluctant to allow the mandatory minimums. This is why AA and counseling from the date of arrest, not 3 days before sentencing, is so important. Judges have a great deal of latitude in sentencing between the minimum and maximum. Do yourself a favor and give the judge good reason to lean toward the minimum.

www.CollinsAttorneys.com

New Mexico was the first state to require ignition interlock devices for first time DWI/DUI offenders. Numerous other states have since passed laws requiring the devices following a DWI/DUI conviction. New Mexico Senator Tom Udall has introduced federal legislation for the requirement of the installation of an ignition interlock device for a minimum period of 6 months for any DWI/DUI conviction, including first time DWI/DUI offenders,

Many first time DWI/DUI offenders in New Mexico believe that a conviction is required for imposition of the ignition interlock requirements. In fact, no conviction is necessary for the revocation of one's driver's license and the consequent ignition interlock requirement.

Upon arrest for DWI/DUI, the person arrested is facing two different proceedings, the criminal proceeding and the MVD administrative proceeding. The Motor Vehicle Division license revocation proceeding will come up long before the criminal proceeding has come to an end. These MVD license revocation hearings are almost a formality for the revocation of the alleged DWI/DUI offender's driving privileges. The burden of proof at these hearings is extremely low requiring only that the hearing be held within 90 days of arrest, that the stop be legal and that the person blew over .08 on the breath alcohol test.

For MVD license revocation and the ignition interlock requirement, it does not matter if the alleged DWI/DUI offender later wins at trial in the criminal proceeding or even if the criminal DWI/DUI case is dismissed. In short, unlike the legislation in other states and the federal legislation introduced by Senator Udall, no conviction is required for the revocation of the alleged offender's license and the imposition of the ignition interlock requirement.

The consequences of DWI/DUI arrest on a person's driving privileges are severe. The first time DWI/DUI carries a minimum driver's license revocation of 6 months. If the driver refuses the breath alcohol test, the minimum revocation through MVD is 1 year. Subsequent offenses carry 1 year MVD revocations. The MVD hearings and revocations are completely independent of the criminal case. This can result in the actual revocation and interlock requirement greatly exceeding the 6 months proposed by Senator Udall even on a first time DWI/DUI offense.

The interaction of the MVD revocation and the revocation by the criminal court judge can be confusing. Likewise, the MVD imposed interlock requirements themselves can be both confusing and oppressive, particularly for those that do not own vehicles. These issues will be addressed in subsequent posts.

www.CollinsAttorneys.com

New Mexico law does not allow law enforcement to take a blood draw without the suspect's consent. However, a blood draw may be taken upon the issuance of lawful search warrant. Likewise, in the absence of a search warrant, a suspect may not be forced to submit to a blood draw.

Blood draws are common in controlled substance cases. They also are used in DWI/DUI cases. However, it is pretty rare that an officer would order a blood draw in a DWI/DUI case. In the recent case of State v. Bullcoming, a blood draw was taken from the defendant under search warrant following the defendant's refusal to take the breath alcohol test and his refusal to voluntarily submit to a blood draw.

The Bullcoming case has importance for a number of reasons, most notably the admissibility of the blood draw report. Though the issue of the search warrant itself was mentioned only in setting forth the facts of the case, almost in passing, the issue is certainly not a trivial one. The defendant in Bullcoming was charged with aggravated felony DWI/DUI. The aggravated portion arose from the fact that the defendant was involved in an accident , and then promptly fled the scene. Once the officer tracked him down, the defendant refused the blood alcohol test, also grounds for aggravated DWI/DUI.

No doubt the result of the defendant's antics, the officer in Bullcoming took the rare step of obtaining a search warrant to obtain the blood draw. Unfortunately for the defendant, his blood alcohol level was .21, almost three times the legal limit, again an aggravating factor.

The more common response of law enforcement to a suspect's refusal to submit to the breath alcohol test is to simply note the refusal and charge the DWI/DUI as aggravated. Aggravated DWI/DUI carries significantly greater penalties than simple DWI/DUI. Thus the refusal can have severe consequences.

No matter how the blood draw is taken, whether voluntarily or by warrant, the suspect has the right to an independent test. In a situation like Bullcoming where the blood alcohol level comes in so high, the independent blood draw may serve only to bolster the results. In closer cases, the suspect would do well to obtain an independent blood draw. The independent test is free to the suspect so long as he or she did not refuse the blood alcohol test. So there is no good reason to waive this right in close cases.

The police officer should inform a suspect of the right to independent testing. If an independent blood test is merited, then the suspect should insist on the test even if the officer has not advised him or her of this right. In fact, the suspect should be quite vocal if the officer is resistant to the request for an independent blood test. As seen in the recent case of State v. Duarte, the presumptions are with the officer so that if he or she says he advised the suspect, it is taken as gospel.

In short, you cannot be forced to take a blood test without a warrant. If you are forced by warrant to take a blood test, you would be well advised in cases close to .08 (simple DWI/DUI) or .16 (aggravated DWI/DUI) to demand an independent blood test. However, in cases with very high levels, or cases that come in just below the aggravated .16 or simple .08, you may be very disappointed with your independent testing.

www.CollinsAttorneys.com

In the last post, I looked at how New Mexico Senator Michael Sanchez' Senate Bill 151 (SB 151) would eliminate the practice of arresting drivers found sleeping in their vehicles while intoxicated. Fortunately, Senator Sanchez went further to address the routine practice of arresting drivers who are below the legal limit of .08 on what is often referred to as the impaired to the slightest degree standard.

The impaired to the slightest degree standard creates many issues regarding discretionary enforcement of the laws. The standard basically creates absolute discretion on the part of a DWI/DUI officer. The history of civil rights alone should be enough of an argument to prevent this kind of latitude in law enforcement. Even assuming that there are no possible racial, ethnic, sexual, religious, or other possible prejudices in law enforcement, there are other equally pernicious pressures on law enforcement for DWI/DUI convictions.

Most recently, it is has been suggested that the Albuquerque DWI/DUI Unit has quotas that must be met. There are also overtime incentives for these arrests since going to court entails overtime pay. There are broader funding pressures of offices of prosecutors across New Mexico, since funding for DWI/DUI enforcement, which make no mistake is big business, is often tied to prosecution statistics. This pressure is likely to grow in the current budget environment. Finally, the press must always weigh in with an attack every time an officer, prosecutor or judge exercises some rational discretion on DWI/DUI enforcement. The pressures for arrest and conviction are simply too great to have any latitude at all in the enforcement of New Mexico's DWI/DUI laws.

In fact, I can think of no other law that has such a vague standard. "Impaired to the slightest degree?" Really? What does this mean? It has no meaning other than that given to it by the officer at any particular time. So what if the cop needs to meet a quota, just doesn't like the driver, is trying to impress the boss, or is just having a bad day (I assume cops probably have more than their share of stressful days)? Perhaps it is more insidious. Perhaps the cop is looking to book more overtime for a new fishing boat? And most frightening of all for all of us, maybe the cop is prejudice against the driver for race, ethnicity, religion, political affiliation, age, sex or some other grounds that taints his judgment even slightly.

The fact is the law should be precisely written. Citizens should know what to expect. There should be a standard that they can meet. They must be able to avoid violation of the law through thoughtful and responsible conduct. There is no such standard currently in New Mexico's DWI/DUI law enforcement. In fact, most people still believe the standard is .08 blood alcohol level. Many plan their evenings around this belief. Some even buy portable blood alcohol test devices to insure they comply with the law. There are even bars and restaurants that have these devices for their patrons. And the fact is, it simply does not matter. It is left to the cop.

The law should not be drafted for the 99% of law enforcement officers that conscientiously perform their duties. It should be drafted to protect against that very small percentage of those that don't. There should be a standard, any standard will do, .08, .04, .01 or even any alcohol at all. The public has a right to know the law and in its current state, the law is unknowable. There is simply no possible way for citizen to know whether or not they will be arrested for DWI/DUI if they are below .08. Due to the severe consequences of a DWI/DUI conviction, this is unacceptable and more than a little frightening.

To show your support for the bill, contact Senator Sanchez or your own representative at http://legis.state.nm.us/lcs/legislatorsearch.aspx.

The Albuquerque Journal reports that New Mexico Senator Michael Sanchez has introduced Senate Bill 151 (SB 151) which will address two serious problems in New Mexico DWI/DUI enforcement: 1) under the limits DWI/DUI arrests on the impaired to the slightest degree standard, and 2) the arrest of drivers found sleeping in their vehicles while intoxicated. The latter will be addressed here with a follow up on "impaired to the slightest degree."

Senator Sanchez 's SB 151 would address the practice of arresting drivers who are asleep in their car by inserting language defining driving to mean only those situations where the "person is behind the wheel of a motor vehicle and causing the motor vehicle to move or exercising control over the movement of the vehicle. Exercising control over a motor vehicle alone, without any movement of the vehicle and with no immediate intent to move the vehicle, does not constitute driving." The current DWI/DUI enforcement practices and the law allow drivers to be arrested for sleeping while intoxicated under the theory that they are in control of the vehicle.

Those in opposition to the change in the law argue that a person sleeping his or her car could wake up and decide to drive. Sure, they could. Someone drunk and sleeping in bed could wake up and decide to drive. In fact, that person is probably just or more likely to decide to drive drunk. After all, the person that had the good sense to avoid driving by sleeping in their vehicle at least possesses the conscience or fear of arrest necessary to cause them to avoid driving. Why should it be presumed that they would exercise the good judgment to avoid driving while intoxicated when severely intoxicated then exercise less restraint as the effects of the alcohol begin to wear off?

The fact is that the policy of arresting drivers who are sleeping in their cars to avoid driving under the influence actively encourages them to engage in the very behavior New Mexico's DWI/DUI laws are meant to deter. According to the National Highway Traffic Safety Administration's law enforcement DWI Training materials, for every driver that is arrested for DWI, there are 500 to 2000 drunken drivers that go undetected. If this is so, and one must weigh the risks of getting arrested for sleeping in a vehicle in a public parking lot which are probably pretty high versus getting arrested for DWI which according to NHTSA are extremely low. Due to the severe consequences of a DWI/DUI conviction, an odds oriented driver would drive rather than sleep since driving carries at best according to NHTSA a 1/500 chance of detection. I for one would rather the person sleep off their intoxication before getting behind the wheel drunk and possibley endangering me, my family or other innocent drivers.

The policy of arresting people for trying to do the right thing is wrong on purely a gut level. It makes no sense to punish someone for making a responsible decision. More than that, it endangers the public by more or less forcing people to drive home rather than sleep off their intoxication. New Mexico's DWI/DUI law and policy is irresponsible and dangerous. I am happy to hear that Senator Sanchez is pushing this bill.

To show your support for the bill, contact Senator Sanchez or your own representative at http://legis.state.nm.us/lcs/legislatorsearch.aspx.

www.CollinsAttorneys.com

Often times when drivers are charged with DWI/DUI in New Mexico, they have prior DWI/DUI convictions from other states. Many times, the charge in New Mexico will be to a DWI/DUI First Offense despite the prior conviction.

Those charged often believe that they were not charged with a subsequent DWI/DUI because the out of state conviction does not count against them. In reality, what typically has happened is that there has been no search of interstate criminal records at the time of the original filing of the complaint.

This does not mean that the complaint cannot be amended once the out of state DWI/DUI conviction(s) are discovered by the District Attorney. Therefore, if there is an out of state conviction for DWI/DUI, it will likely be discovered well before the trial date. If not, it will be discovered at sentencing and factored into the DWI/DUI sentencing where there is a significant amount of latitude allowed the judge.

The use of out of state DWI/DUI is allowed both by statute, NMSA 66-8-102(Q) and by case law, State v. Lewis. NMSA 66-8-102(Q) clearly allows for the use of out of state convictions for consideration of a charge as first or subsequent DWI/DUI. In addition, the New Mexico Court of Appeals determined in State v. Lewis that the use of out of state convictions for enhancement purposes is allowed under New Mexico law. The court ins State v. Lewis ruled that so long as the out of state DWI/DUI statute is substantially equivalent to NMSA 66-8-102, then the conviction can be used as a prior.

It is very important that you discuss your DWI/DUI history honestly with your attorney from the very first meeting. Prior convictions will almost always show at some point during the process. Hiding them from your attorney could severely impact the legal representation as the approaches for dealing with first time DWI/DUI and subsequent DWI/DUI can be very different particularly when it comes to consideration of plea offers. Surprises at trial are never good for you or your attorney. Surprises at sentencing can be extremely detrimental to your freedom.

www.CollinsAttorneys.com

DWI/DUI is taken very seriously in New Mexico. Strict DWI/DUI enforcement is intended to deter drunk driving. As such, the laws are very strictly enforced throughout New Mexico and the consequences of a DWI/DUI conviction can be severe. In fact, Albuquerque police go even further arresting and charging people for DWI even when they have not been driving.

Due to the strict enforcement of DWI/DUI laws, people arrested for a 1st time DWI first want to know whether they will be going to jail. The next question often relates to their driver's license. Finally, they typically want or need to know the other penalties and fines associated with DWI/DUI in New Mexico.

For a first time offender, the worst case outcome is generally sentencing to the First Offender Program. As part of the First Offender Program, the defendant's sentencing is deferred for one year. The defendant is placed on supervised probation during this one year period. In addition, following conditions are imposed on the defendant as part of the First Offender Program:

1. DWI School,

2. Alcohol and Drug Abuse Screening,

3. Counseling and Treatment if recommended following screening,

4. Attendance of the Victim Impact Panel,

5. Random drug and alcohol testing if deemed necessary by probation following screening,

6. No consumption or possession of alcohol or illegal drugs,

7. Installation of an ignition interlock device on the defendant's vehicle for 1 year (this allows the defendant to continue to drive while on probation),

8. Community service which is typically 24 hours,

9. Payment of Court Costs, and

10. Payment of probation costs (these are often waived by the Court).

This is the standard sentence for a simple first time DWI/DUI in New Mexico. This sentence is imposed whether or not the defendant enters a plea or loses at trial. Thus, many simple first DWI's will go to trial since there is no difference in the penalties between a conviction on a plea versus conviction at trial.

The decision of whether or not to go to trial is made more difficult in an Aggravated DWI case. Conviction on an Aggravated DWI carries mandatory 48 hour jail time. Aggravated DWI is charged in cases where the driver's breath alcohol score is .16 or higher, the driver refused the breath alcohol test, or there was an accident involving alcohol.

Because of the mandatory 48 jail time, many DWI defendants do not want to risk a conviction of Aggravated DWI at trial. The result is that many, if not most, Aggravated DWI cases plea to a simple first DWI prior to trial which allows the defendant to enter the First Offender Program.

So getting back to the opening, the question is whether a first time DWI defendant will go to jail, and whether he or she will be able to drive following conviction on a DWI. The answer to the first question is that it is very unlikely under the current state of New Mexico law that a first time DWI defendant will go to jail unless he or she is convicted on an Aggravated DWI. The answer to the second question is yes, the defendant will be allowed to drive with an interlock license.

www.CollinsAttorneys.com