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WHAT IF THERE IS AN ILLEGAL ITEM IN "PLAIN SIGHT?"

"Plain sight" is an exception to the warrant requirement. In New Mexico, even if something is in plain sight, if it is not dangerous, officers still have to go get a warrant, but they can seize the car temporarily while they go get a warrant, and then retrieve the item in plain sight. But, I would still not consent to let the officer search your car.

WHAT IF AN OFFICER PULLS ME OVER AND WANTS TO SEARCH MY CAR?

You should always decline to allow officers to search your car. If an officer is asking to search your car, even if you don't have anything in your car, or you think you don't have anything in your car, it's a huge inconvenience. The officer can really tear your car apart if you consent to a search and not fix it. There have been cases where officers have planted things inside of cars or in homes during searches, so I always decline, and I think people should always say no. 

"WOULD YOU RECOMMEND THAT A DRIVER TAKE OR REFUSE A FIELD SOBRIETY TEST?"

I tell people that if they have had nothing to drink, or very, very little, then they should consent to the test. However, if that is not the case, a driver has the right to decline to do the Standard Field Sobriety Test and has the right to decline to give a blood or breath test, and I recommend that they do both and just ask for a lawyer.

NEW MEXICO'S 'IMPLIED CONSENT ACT' AND MEDICAL SOBRIETY TESTS

Once you've been arrested the officer will read you something called the New Mexico Implied Consent Act. That is a law in New Mexico that says if you drive on the roads of New Mexico, you have consented to giving your breath test, blood test, or both, depending on what an officer asks you.

POLICE QUESTIONING DURING A DWI

New Mexico courts have found that questioning on a DWI case before the arrest happens is not subject to Miranda. In a normal DWI case, an officer might pull somebody over for weaving, and then they have a conversation with that person, and they suspect that person has been drinking, and they have that person get out of the car and do standard field tests.

WHAT IF THE POLICE RECORD ME BEFORE THEY READ ME MY RIGHTS?

If an officer asks you questions about your case before Mirandizing you, you can normally get those excluded. This does not apply to traffic citations or DWI's in New Mexico, but for any other case an officer first has to read you Miranda rights before asking questions.

WHAT ABOUT CAMERAS THAT POLICE OFFICERS WEAR? IS VIDEO RECORDED AT THE SCENE ADMISSIBLE AS EVIDENCE?

Normally, yes. In New Mexico, officers are not required to turn their camera on, so an officer has to actually push a button to turn the camera on, and it is their discretion when to turn the camera on or not.

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McGraw & Strickland, LLC
165 West Lucero Ave.
Las Cruces, NM 88005

Phone: 575-567-3107
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