Albuquerque Criminal Lawyer Blog

You have a right to an independent blood alcohol test when you have been arrested for DWI/DUI in New Mexico. In the past, this was more theoretical than real due to the lack of availability of on the spot independent testing. This has now changed in Albuquerque with a new independent blood testing service, BATDRAW.

BATDRAW will show up 24/7 anywhere within Bernalillo County, and in many of the outlying areas. The organization will send out a certified phlebotomist to conduct the test. The test results are fully admissible in a DWI/DUI defense. The results are also admissible for the MVD license revocation hearing. The BATDRAW blood test is far more reliable than the breath alcohol test utilized by law enforcement which has a acceptable 10% error rate.

The test is free so long as you submit to the State's breath alcohol test If you refuse the State's breath alcohol test, you will be charged for the test. In addition, you will be responsible for all costs associated with getting the testing technician to court at trial.

Take the State's test, then take the BATDRAW test to get accurate results. Insist on the BATDRAW independent blood alcohol test. Be vocal and leave no doubt that you made the request. As seen in State v. Duarte, any doubt in your request for an independent blood alcohol test will likely be construed against you.

You have the right to an independent blood test. You should exercise it if there are any doubts in your mind regarding the results of the law enforcement result. You should most definitely use the service if your results are close to .08 or .16 due to the recognized 10% error rate in the breath test. Clearly, you do not want the test if you are under the limit as the rate of error in the breath alcohol tests swings both ways.

The exercise could prove purely academic anyway due to New Mexico law that allows drivers to be convicted at levels below the legal .08 level, under the "impaired to the slightest degree" standard. However, it is far better to be fighting the "impaired to the slightest degree" than the statutory presumptive impairment above .08. And, anything over .16 puts you at a severe disadvantage due to aggravated DWI/DUI charges for levels over .16. In addition, .08 or higher virtually guarantees a revocation of your license by MVD.

Put this number in your phone., 505.712.7180. Give to your friends and family. Hopefully, you will not need it, but if you do, you do!

www.CollinsAttorneys.com

New Mexico law allows a DWI/DUI suspect to request independent chemical testing. In fact, NMSA 66-8-109(B) requires that the officer inform the suspect of this right. The question arises what happens if the officer fails to offer the independent chemical test?

The law dictates that the breath alcohol score must be suppressed for failure to inform the DWI/DUI suspect of the right to independent chemical testing. The problem is in proving the failure of the officer to comply with the law.

As is often the case in DWI/DUI cases in New Mexico, the issue boils down to issues of credibility. Who is the court or jury to believe, the cop or the suspect? It is often a coin toss with the jury. As for the Court, it is clear that the presumptions are with the cop. This is so in the impaired to slightest degree, under the .08 limits DWI/DUI cases, where you are impaired if the cop says you are impaired. It is equally so in the advice of rights for independent chemical testing.

This presumption was made clear in the 2007 case of State v. Duarte. In that case, the officer videotaped the field sobriety tests. Presumably this same video would have carried evidence of the reading of the implied consent and the advice of rights for independent chemical testing. The cop lost the video. The Court made some interesting rulings allowing in testimony regarding the field sobriety tests despite the loss of the only real evidence of the suspect's performance.

Further, the suspect said that he was not informed of that right. The cop did not say he did inform him of that right. Instead, he said it was his general practice to read the advice of rights. Despite the loss of the video, again the only true evidence of the reading of those rights, and the officer's lack of recollection of the reading other than his general practice, the Court ruled in favor of the State and refused to exclude the breath alcohol results.

This case, like the under the limits DWI/DUI arrests on the impaired to the slightest degree standard, points to the real presumptions in DWI/DUI cases in New Mexico. Is there really a presumption of innocence when an officer need only opine that the suspect was impaired for a DWI/DUI conviction? Is there really any due process protection at all when as in this case the only tangible evidence of the officer's compliance with the law has been lost, and yet the officer is allowed to testify to what would have been on the video based general procedure?

The great majority of law enforcement officers are honest, competent and professional. Due process protects society against those that are not. New Mexico's DWI/DUI laws present a sliding scale of justice which is dependent upon the luck of the draw on the cop, the prosecutor and the judge. Fairness, justice and due process are situational. Is DWI/DUI such a threat to our society that it justifies the rebalancing of our system of justice?

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

A recent article on KOB.com of Albuquerque addresses an important question, why would Albuquerque police officers arrest drivers for DWI/DUI at a breath alcohol level (BAC) of .04 when the legal limit is .08.

The answer that the writer provides is that "It's all about your performance, and it's up to the cops." You would hope as a citizen that the first part of the explanation is correct, that it is about your performance on the field sobriety tests. The problem is that the second part of the explanation is exactly right, it is entirely up to the cop.

The article also rightly points out that the law states that you may be arrested for DWI/DUI when your ability to drive is impaired to the slightest degree by alcohol. It is yet to be determined what precisely this means, "impaired to the slightest degree." The reality is that it is as the writer suggests up to the cop.

This is the problem and it is very serious problem. It is left to the police officer to determine or opine whether a driver's ability to drive is impaired to the slightest degree. The fact is that the field sobriety tests are susceptible to interpretation at best and outright falsification at worst. The turn on the walk and turn test is not performed just right. The heel and toe did not meet on the 5th, 7th and 9th step of the walk and turn. The driver could not keep his hands at his side during the one leg stand. The driver did not appear to understand or follow one of the many directions given during the fields sobriety tests. And the horizontal gaze nystagmus (HGN) test has potential for abuse at every single step of the process. There simply is no way to prove that the cop misconstrued or falsified the test results.

So what's the problem? Perhaps, the officer is under stress to meet DWI/DUI quotas. This is the most innocent offense. Worst case is that the level of subjectivity in these tests allows the officer to target particular kinds or races of people. There is no check on the officer's discretion. It is entirely up to the officer. And judges are under too much pressure to question the credibility of an officer. The prosecutor cannot dismiss a case that lacks merit. The same news outlet, and probably several others, that printed the article on why under the limits DWI/DUI might occur will print an article the morning following a dismissal of a DWI/DUI that attacks the judge, the prosecutor, and even the cop for not being tough enough on DWI/DUI offenders.

Impaired to the slightest degree has too much potential for abuse. There are far too many pressures on judges, prosecutors and police to get these convictions. Impaired to the slightest degree is not standard. What does it mean? It means whatever the cop says it means and that is it. The fact is that most are very surprised to hear that .08 is not the true standard. Citizens have a right to expect laws that are precisely drafted so that they can stay within the bounds of the law. The law should set forth a precise standard for DWI. It should not be left to the cop on the street. It is not fair to the cop and it is not fair to the citizen. There simply is no way to predict or plan for such a vaguely written law.

So why doesn't New Mexico just pass a law outlawing drinking and driving, period? What would happen to restaurants and bars? What would happen to tax revenue for the State? There is your answer. It is more cost effective to pass the burden on to the unlucky driver caught in the vagaries of New Mexico's DWI/DUI laws than to risk the loss of tax revenue with drafting a law that reflects the reality of DWI/DUI enforcement in New Mexico and particularly in Albuquerque where it may or may not be a crime to drink even a sip of alcohol and get behind the wheel.

www.CollinsAttorneys.com

The New Mexico Supreme Court addressed expert testimony given by police officer in DWI/DUI trials in State v. Marquez. The case involved an Albuquerque police officer who gave testimony regarding the statistical correlations between a suspect's performance on field sobriety tests and the probability of a blood alcohol score over .08.

The defendant's attorney had argued that the officer was not qualified as an expert to testify on statistical probabilities under the U.S. Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals. Interestingly, the State conceded that the testimony given by the officer was improperly admitted. Instead, the State argued that the admission of the evidence was harmless because there was sufficient legally admitted evidence for the conviction.

The case of State v. Marquez is interesting because the New Mexico Supreme Court found that the testimony was unnecessary for the conviction. The Court cited New Mexico Uniform Jury Instruction 14-4501 along with the well established New Mexico case law suggesting that the true standard is whether the defendant's ability to drive was impaired to the slightest degree.

The testimony of the officer undoubtedly would have established this without the statistical testimony. The officer testified that she saw the defendant stumble out of a bar, get in his car, almost strike another vehicle as he backed out of his parking space, and then back 60 feet into oncoming traffic on a congested and dangerous street. In addition, the officer testified that the defendant was slow to respond to questions, fumbled with his identification, was slow getting out of his vehicle, had to brace himself against his vehicle for balance and generally performed poorly on the field sobriety tests.

In light of impaired to the slightest degree standard, the statistical evidence was hardly necessary. However, the prosecutor got a little greedy perhaps and solicited the testimony anyway over the objection of the defense attorney. Basically, the officer gave testimony on statistical studies suggesting that poor performance on the field sobriety tests correlates to a high probability that the defendant's breath score exceeded the .08 limit.

The Court recognized that because of the impaired to the slightest degree standard, the breath alcohol score is not necessary for a DWI/DUI conviction in New Mexico. The Court further recognized that it is common knowledge that a breath score of over .08 is an indication of impairment. Thus, the testimony of the Albuquerque police officer, though unnecessary for a conviction, could have confused and misled the jury. In short, the testimony may have distracted the jury from its role of weighing properly admitted evidence by undue attention to the wrongfully admitted statistical evidence. In essence, the statistical evidence improperly undermined the credibility of the defendant.

Because the evidence was improperly admitted and could have confused or distracted the jury, the defendant's DWI conviction was reversed. The case was remanded for a new trial. In light of the evidence available to the State, and the Court's ruling that the breath alcohol score is unnecessary, the outcome of the new trial is likely to be the same as the first.

The case is somewhat paradoxical that the Court further restricts the bounds of admissible DWI evidence while at the same time reiterating its position that such evidence is unnecessary anyway. However, the case should prove important in cases where the evidence of intoxication is not so overwhelming as was the case here.

www.CollinsAttorneys.com

A series of articles over the last month point to significant budgetary issues facing law enforcement, the courts, and the District Attorneys offices across New Mexico. Albuquerque will feel the crunch as much as any.

In mid November, it was announced that the State police will be forced to cut back on hiring and training of new officers. The budget issues are so severe that the first 2 police academies for 2010 have been cancelled completely. The State Police was already short on officers. These additional cutbacks will leave the force stretched very thin.

The Second Judicial District Court in Albuquerque is down 23 positions. According to a national study, the court needs an additional 36 staff, and 10 judges to make it work correctly. In response, the clerk is cutting hours back even further to 10 AM to 4 PM. All court activities, including hearings, are being cut back as well. On Fridays, all court activity will close at 4:15 PM.

The DWI/DUI interlock fund for the poor is also running low. Interlock devices are mandatory for all DWI/DUI offenders. For those that refuse the breath alcohol test or blow .08 or over, the license revocation is automatic by Motor Vehicles Division (MVD). In addition, any driver convicted of DWI/DUI will be ordered by the court to have the interlock device for 1 year as a term of probation.

So what does any of this have to do with DWI/DUI enforcement in Albuquerque? It points to overburdened police departments, courts and district attorney's offices. Though I have not yet seen numbers of Albuquerque Police Department, the Metropolitan Court in Albuquerque, or the District Attorney's Office in Albuquerque, the trends are clear. Government budgets are in crisis in New Mexico and across the nation. Albuquerque is not immune.

All the while, Albuquerque Police and the Albuquerque District Attorney's office continue to burden the courts and state budgets with overzealous DWI /DUI enforcement. Albuquerque Police's DWI/DUI Unit continues to carry a 2 arrests per shift quota for its officers. Related to this quota is the continued and common practice of arresting drivers who are below the legal limit of .08 breath alcohol level. And then there are the DWI/DUI arrests of drivers who have not even been driving as with the recent veteran who was sleeping in his car to avoid driving while intoxicated.

Much of the impetus for these overzealous policies has arguably been driven by the quest for state and federal funding for DWI/DUI enforcement. These arrests, no matter how unfair and illogical, and in the case of arresting drivers for sleeping off a drunk contrary to public policy, helped push up the DWI/DUI statistics for Albuquerque and the State of New Mexico. With these statistics, the state was able to tap into federal funding, and Albuquerque was able to tap into both state and federal funding.

The well is running dry. So hopefully, the police will get back to enforcing the DWI/DUI laws in the spirit in which they were written. The State needs to keep drunk drivers off the road. That is the bottom line. A driver under the .08 limit is not legally drunk. If it is the intent to make it otherwise, then rewrite the law, or make it illegal to have any a sip of alcohol before getting in a vehicle. This raises all kinds of taxation issues as neither New Mexico nor Albuquerque can afford the loss of taxes associated with bars and restaurants. Again, it comes down to money.

Finally, don't encourage people to drive drunk by the threat of arrest for trying to do the right thing. Let drivers, encourage drivers to sleep it off. It makes no sense force a decision between driving drunk and being arrested for driving drunk for sleeping in your car. A gambling oriented individual would drive drunk. Thus this ridiculous trend endangers lives Perhaps that is not enough to halt to policy. If reason and logic fail, money never does. These policies are stretching an already overburdened court with cases that should not be there.

www.CollinsAttorneys.com

In Albuquerque and throughout New Mexico, you can be charged with DWI even when you are under the legal limits. You can even be charged for DWI when you have not been driving at all. In fact, it is illegal to sleep in your truck after drinking. Albuquerque Police will charge you with DWI and the Courts here will convict. This bizarre consequence with potentially disastrous effects is made possible by New Mexico case-law.

A case in Georgia last week found that one could not be charged with auto theft for stealing a lawnmower. Contrast that with cases around the country where people have been charged with DWI for driving a lawnmower drunk. Granted these drivers were driving on the roads, and one was actually making a beer run when he was pulled over. However, in the zealous drive to prosecute people for DWI even when they are not driving, it is only a matter of time that the Albuquerque Police will arrest, and charge someone for mowing drunk. Perhaps, we will have a new category of MWI (Mowing While Intoxicated) to go along with SWI (Sleeping While Intoxicated).

The Georgia case piqued my interest in New Mexico' treatment of mowing while drunk as this seems to be a favorite past-time of many. I could find no case-law addressing the situation. However, if a man can be charged and convicted for DWI for sleeping in his truck, I would be very reluctant to have a beer before jumping on my lawnmower. In fact, the situation posed to the New Mexico Courts by those electing to sleep off a bender in their vehicle poses far greater public safety risks than the lawnmower scenario. This suggests the very real possibility of DWI while mowing the lawn. The math speaks for itself.

According to the National Highway Safety Administration's DWI Training material which is the universal source of DWI training for law enforcement in the United States, for every DWI arrest there are 500 to 2000 DWI violations that go undetected. Contrast this with the odds of detection of sleeping in your vehicle in a bar or restaurant parking lot after drinking. I have found no statistics on this but I would guess that the odds of detection are pretty high due to random patrols of such locations. Looking at the math, an odds driven person might determine that the risks are far greater sleeping off a drunk than driving home.

Thus, the math associated with this calculation would actually encourage drunk driving rather than discouraging it. This is a bizarre outcome of a flawed and overzealous DWI policy throughout New Mexico, and particularly in Albuquerque. This policy is dangerous for both the drunk driver as well as the innocents he or she may encounter on the way home. I can think of no possible victims associated with that same person sleeping off his drunk in his car. We can only hope the Courts will address this anomaly in the near future. If they do not, it is just a matter of time before an innocent victim is badly injured or killed as a result of this bizarre law and policy.

www.CollinsAttorneys.com

Most people are surprised to learn they can be charged with DWI/DUI even when below the limits of .08. In fact, under the limits DWI charges in Albuquerque are quite common. In fact, people are arrested for DWI even when they are not driving.

A recent story in the Albuquerque Journal told the story of a Vietnam veteran, Fidencio Francia, who was arrested for DWI despite the fact that he never started his car. Instead, he knew that he had had too much to drink so he wisely chose not to drive. Rather than drive, he chose to sleep it off in his car. He was arrested and charged for DWI for sleeping in his car after consuming alcohol.

Albuquerque District Attorneys argue that such behavior puts the city at risk. They argue that folks like Mr. Francia are not using the car as a shelter but instead are in control of a "4000 pound bullet." The judge in the case, Judge Fitzwater argued that the law is well settled that one does not have to drive to be convicted of Driving While Intoxicated. Counter-intuitive, is it not?

In fact, the New Mexico Court of Appeals has ruled that it is unnecessary to drive to get a DWI/DUI. The court found that one need only be control of the car. The definition of control is very loose. In State v. Sims, the Court found that the person was in control of the car even though the keys were not even in the ignition, but in the passenger seat. And the defendant was asleep. Yet he was still in control of the car and presumably a threat to the public with his 4000 pound bullet.

What is the lesson here? Don't drink, if you do drink, don't get near a car, if it is freezing outside, you have to make a hard choice between dying in the cold, driving drunk, or getting a DWI for sleeping in your car.

There is no reason or rationality in the prosecution of DWI/DUI in Albuquerque. The policy of prosecuting people for not driving drunk is certain to end in disastrous consequences as some will decide the risk of driving drunk is no worse than the risk of not driving drunk. The only real question is when such a disaster will strike and whether the District Attorney and the Albuquerque DWI Unit will accept responsibility for the ill-advised policy of prosecuting people for not driving drunk. Meeting DWI quotas is I suppose far more important that actual public safety.

www.CollinsAttorneys.com

A recent article in the Albuquerque Journal points out a DWI Quota for police officers on the Albuquerque Police Department's DWI Unit. DWI officers are required to make 2 DWI/DUI arrests each shift. This quota may be contributing to the rash of below the limits DWI arrests in Albuquerque.

Most citizens believe that the standard for DWI is a breath alcohol level of .08 or higher. This belief is rightfully justified as .08 has traditionally been the standard for a DWI arrest. In fact, many well-intentioned citizens have bought their own breath alcohol measurement devices so that they can insure that they don't violate the law.

There is a disturbing trend in Albuquerque where drivers are being arrested for breath alcohol levels well below the .08 limit. There are cases of drivers be arrested at .03 and .04. The law actually allows this through the extremely vague alternative standard to the .08 standard of "impaired to the slightest degree." NMSA 66-8-102(A) states: "it is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state."

The New Mexico Court of Appeals has reaffirmed this loose and vague standard in State v. Pickett. The Court in Pickett cited approvingly the language in State v. Sanchez stated that a driver is under the influence of alcohol "if as a result of drinking [the driver ] was less able to the slightest degree...to handle a vehicle..." The court coined this standard as "impaired to the slightest degree" as established in State v. Neal.

This trend seemed driven by an overzealous DWI policy where drivers were arrested for the mere presence of alcohol in their system. It seemed also to be related to the desire for Albuquerque DWI Unit Officers to maximize their over-time hours and over-time pay.

The DWI quota is a new and even more disturbing incentive for illegitimate DWI/DUI arrests. Clearly, the Albuquerque DWI Unit officers are pressured into making illegitimate arrests as a result of the quota. Their job performance and continued assignment to the Albuquerque DWI Unit depend on meeting these quotas.

Many clients are very surprised when they are charged with DWI/DUI when their blood alcohol level is below the legal standard of .08. In fact, the police regularly arrest these drivers and the District Attorneys, particularly in Albuquerque, routinely prosecutes these "below the limits" cases. The District Attorney in Albuquerque brings DWI/DUI cases for drivers at .03 or .04. This practice is shocking to the driver who thought that he or she was behaving responsibly.

The New Mexico Court of Appeals has struck one more blow against these well-intentioned drivers in State v. Pickett. NMSA 66-8-102(A) states: "it is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state." The Court cited approvingly the language in State v. Sanchez which stated "a person is under the influence ... if as a result of drinking [the driver ] was less able to the slightest degree...to handle a vehicle..." The court referred to this standard as "impaired to the slightest degree," a term established in State v. Neal.

The Court stated that in order to convict the Defendant, the State needed only prove that the defendant was less able to the "slightest degree" to safely operate a vehicle. Remarkably, the court allowed in otherwise inadmissible evidence for the determination of impairment to the slightest degree. Though the breath test scores could not be admitted, the test was allowed to be used to show there was alcohol in the defendant's system.

Essentially, an officer will be able to make the determination of impairment to the slightest degree at his or her discretion. The officer may conduct field sobriety tests which are horribly subjective, and susceptible to abuse. Then on the basis of what the officer determines weak fields sobriety tests, the officer may then take the blood alcohol tests. The catch for the driver is that if you refuse, your license is automatically revoked even if you win your trial.

Once the officer determines there is alcohol in your system, and that you performed poorly on the field sobriety tests, he may arrest you and charge you with DWI/DUI. This absolute discretion on the part of the officer is the basis for the below the limits cases that we are now regularly seeing in court at levels as low as .03. And the District Attorney is prosecuting these with the same level of zeal as an aggravated DWI/DUI.

The problem is clear. I think history has shown that it is not a good idea for civil rights or liberty to allow police officers absolute discretion. The potential for abuse is too great. And though the great majority of police officers are honest and conscientious, there are bad apples as in any profession. A dishonest mechanic is just painful on the wallet. Police officers have the power to destroy lives on what amounts to the most vague possible standard that could be drafted for DWI/DUI.