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February 2017 Archives

IF I USE MARIJUANA, CAN I STILL BE BUSTED FOR DWI?

Yes, you can. But, drugs are normally measured in nanograms per milliliter of blood, which nobody really understands, especially jurors. But say they find 5 nanograms per milliliters of blood - prosecutors can't argue that amount means. Specialists who analyze that data will say, "those numbers don't really have meaning because the drugs affect everybody differently."

MARIJUANA: IS THERE ANYTHING EQUIVALENT TO A BLOOD ALCOHOL LEVEL FOR MARIJUANA?

No, there is not. They try to pass one every year, and we lobby against it because there is no scientific basis behind any drug saying that some certain level in your blood renders you incapable of safely operating a motor vehicle.

IF I HAD ONE BEER OVER THE LAST HOUR, AND THEN GOT CAUGHT, IS THAT POSSIBLY A VIOLATION?

Probably not. If you were 90 pounds, and you had two beers over two hours, you'd be a 0.04, and that's just an estimate because everybody's different, and it doesn't convert predictably. For example, if you weigh 170, the estimate is you have to have at least 5-½ beers over 2 hours to be at a 0.08.

WHAT IS CONSIDERED AN ILLEGAL BLOOD ALCOHOL LEVEL FOR DWI?

In New Mexico, if you are over 21, it is 0.08 or above, but your actual level of intoxication depends on a lot of things: The number of drinks, the person's weight, and the number of hours that have passed while the person was consuming alcohol. I have a little breath alcohol calculator that I use, so if you give me sample weights, hours and number of drinks, we can estimate this for you. 

CHALLENGING THE RELIABILITY OF THE PARTICULAR BLOOD INTOXILYZER 8000 MACHINE

A judge should order that all of the documentations on that machine be turned over if you file all of the correct documentation. I have had several cases where the machine was not calibrated correctly, or something was not done with that machine that should have been, and the breath results turned out that way, so you need to at least always review it very carefully, and then if there is an issue, you definitely need to challenge it.

CAN YOU GIVE ME AN EXAMPLE OF A DWI CASE THAT WAS DIFFICULT, BUT HAD A GOOD OUTCOME?

I had a DWI case one time where my client blew a 0.15, 0.16. In New Mexico they should always take two samples from the person. When the client comes to you like that, you tell them "This is going to be an uphill battle," and my client said, "I just didn't have that much to drink. I don't know where this number is coming from". We worked the case and worked the case, and going through the machine that was used to take the sample. They use machines called Intoxilyzer 8000's to take breath samples, and then those machines have to be calibrated and checked by the lab to ensure the machine is running correctly, and in that case it showed that it was.

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Las Cruces, NM 88005

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