Do Not Wait To Get Started On Your DUI Defense

Being charged with driving under the influence of alcohol or drugs is a serious matter. The penalties if convicted can include fines, court-ordered programs, probation, limitations on driving privileges, and even jail or prison time.

Get help today from a defense lawyer who can help you avoid these penalties. Call McGraw & Strickland, LLC, in Las Cruces today at 575-523-4321 for a consultation.

Your Rights During An Investigation

When you are stopped by law enforcement, you have rights, which include:

  • The right to decline to answer an officer's questions about drinking or drug use
  • The right to decline to perform field sobriety tests and/or tests by a drug recognition expert (DRE)
  • The right to decline to give a blood or breath test (except in the rare instances where the police have obtained a warrant)

If you choose to give a blood or breath sample, you have the right to a reasonable opportunity to arrange an additional test with an appropriate medical professional of your choosing. Law enforcement must pay for that testing.

Your Driver's License

When you are arrested, the officer will file the paperwork necessary to revoke your driver's license. The first thing you need to do is request a hearing on your license revocation. You must request this hearing within 10 days, or your license will be suspended automatically. You have the right to have an attorney represent you at the hearing and any appeals. An attorney can also help you with the hearing request.

This license revocation process is totally separate from the criminal case. Do not depend on the criminal case process to assist with your license revocation.

Your Rights Once Charged

When you are charged with driving under the influence, you have the rights of a criminal defendant:

  • You have the right to a trial.
  • You have the right to be presumed innocent.
  • You have the right to be found not guilty unless the prosecution proves your guilt beyond a reasonable doubt.
  • You have the right to confront the witnesses against you.
  • You have the right to bring any relevant witnesses or evidence to the trial.
  • You have the right to testify or decline to testify at the trial.
  • You have the right to an attorney.

Important Early Deadlines

  • Within 10 days of arrest, you may submit a written request for a hearing on your driver's license.
  • Within 10 days of arraignment, you may request trial by jury (only necessary in some cases).
  • Within 10 days of arraignment, you must make decision on judge excusal.

The New Mexico Implied Consent Act

In New Mexico, under the law of the Implied Consent Act, every person driving a vehicle within the state is deemed to have given his or her consent to a breath and/or blood alcohol concentration test if arrested for DWI / DUI.

The New Mexico Motor Vehicle Code states:

"Any person who operates a motor vehicle within this state shall be deemed to have given consent… to chemical tests of his breath or blood or …for the purpose of determining the drug or alcohol content of his blood if arrested for any offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while under the influence of an intoxicating liquor or drug." — NMSA 66-8-107(A)

However, when asked for a breath or blood sample, a person has the right to withdraw that consent and refuse testing. When a person refuses testing, he or she may face slightly increased criminal penalties and an increased period of suspension of his or her driver's license. On the other hand, when a person refuses testing, it can make the case much more difficult for the prosecution to prove.

When a breath or blood sample is given, any sample proven to be .08 or over will result in conviction. When a person refuses to give a blood or breath sample, during trial the prosecutor must only prove that the driver was "impaired to the slightest degree" by alcohol or drugs.

In short, deciding whether or not to give a breath sample is a serious choice with lasting consequences. Many attorneys commonly advise that a suspect who has in fact been drinking more than a very small amount alcohol politely decline to give a breath sample.

A person, unfortunately, does not have the right to a criminal defense attorney at this stage of the investigation. However, if they do choose to give a sample, they have the right to request a second and independent test. A person giving a sample should always request a second independent test.

DUI /DWI Penalties in New Mexico
1st OffenseMISDEMEANOR
  • 6 months to 1-year license revocation (1 year if under 21)
  • Up to 90 days jail
  • Mandatory: DWI school, alcohol evaluation, ignition interlock for 1 year, community service
  • Other: treatment
2nd OffenseMISDEMEANOR
  • 2-year license revocation.
  • Up to 364 days jail, 96 hours mandatory
  • Up to $1,000 fine, $500 mandatory
  • Other mandatory penalties: alcohol evaluation, community service, treatment, ignition interlock for 2 years
  • Other: Up to 5 years of probation
3rd OffenseMISDEMEANOR
  • 3-year license revocation
  • Up to 364 days jail, mandatory 30 days
  • Up to $1,000 fine, $750 mandatory
  • Other mandatory penalties: alcohol evaluation, community service, treatment, ignition interlock for 3 years
  • Other: Up to 5 years of probation
4th OffenseFELONY 4th DEGREE
  • Lifetime license revocation with 5-year court review
  • Up to 18 months prison, 6 months mandatory
  • Up to $5,000 fine
  • Other mandatory penalties: alcohol evaluation, treatment, lifetime ignition interlock with 5-year court review
5th OffenseFELONY 4th DEGREE
  • Lifetime license revocation with 5-year court review
  • Up to 2 years in prison, 1 year mandatory
  • Up to $5,000 fine
  • Other mandatory penalties: alcohol evaluation, treatment, lifetime ignition interlock with 5-year court review
6th OffenseFELONY 3rd DEGREE
  • Lifetime license revocation with 5-year court review
  • Up to 30 months prison, 18 months mandatory
  • Up to $5,000 fine
  • Other mandatory penalties: alcohol evaluation, treatment, lifetime ignition interlock with 5-year court review
7th or Subsequent OffenseFELONY 3rd DEGREE
  • Lifetime license revocation with 5-year court review.
  • Up to 3 years in prison, 2 years mandatory
  • Up to $5,000 fine.
  • Other mandatory penalties: alcohol evaluation, treatment, lifetime ignition interlock with 5-year court review.
Additional Penalties for Aggravated DUI /DWI
Aggravated DWI.16 BAC or above, refusal to take BAC test, or cause bodily injury while DWI
  • 1st offense, mandatory: additional 2 days in jail
  • 2nd offense, mandatory: additional 4 days in jail
  • 3rd offense, mandatory: additional 60 days in jail