If you have been pulled over for DWI (Driving While Intoxicated), you might be asked to take a breath test to verify whether you are impaired and to determine the level of blood alcohol in your system. Should you refuse? What are the legal consequences of declining a breathalyzer test in New Mexico?
There are sometimes two breath tests involved if someone is suspected of DWI. One of them is called a “portable.” This portable breath test machine is not reliable and if you have been drinking anything with alcohol in it you probably should avoid taking the portable breath test. There is no legal consequence for refusing to take the portable breath test.
The more common breath test is given only after your arrest and is performed on a machine called an Intoxilyzer. At the point you are asked to provide a breath sample for the Intoxilyzer, 1) you have already been arrested, and if you have been drinking why provide the state with more evidence, and 2) there are consequences for refusing to take the a breath alcohol test on an Intoxilyzer.
Civil Penalties for Driving While Intoxicated
There are two sets of consequences for refusing to take the breath alcohol test in New Mexico. The police will have most likely read to you what is known as the “implied consent advisory” only after having placed you under arrest for DWI. New Mexico’s “Implied Consent Act,” for a first offense DWI, imposes a six month to one year driver’s license revocation depending on whether you refused to take the breath alcohol test.
If you have a public defender as opposed to a private attorney, the public defender is prohibited from representing you at the “implied consent hearing.” Public defenders in New Mexico are prohibited by law from defending their clients in civil administrative hearings, such as any implied consent hearing.
Despite this, it is always worth your time to preserve and demand your right to an implied consent hearing. After all, if you beat your DWI you don’t want to have any restrictions on your driver’s license. You only have ten days from your arrest to demand an implied consent hearing. A private attorney can represent you in both the criminal and civil hearing.
Criminal Penalties for Driving While Intoxicated
Like all anyone accused of any crime, you are entitled to due process, which includes a jury trial if the criminal complaint, or DWI citation, was filed in the McKinley County Magistrate Court, and a bench trial if the DWI was filed in Gallup’s Municipal Court. Gallup police have the discretion to file a DWI in either the Magistrate or the Municipal court.
If you are convicted of DWI in Gallup Municipal Court there is a mandatory minimum jail sentence of 72-96 hours depending on whether the DWI is charged as “aggravated.” If you blow above .16, or refuse to take the Intoxilyzer breath test, then you will be charged “aggravated” DWI. If you are convicted of DWI 1 in Magistrate Court there is only a mandatory minimum sentence of 48 hours if the DWI was aggravated, and there is no requirement of incarceration for a non-aggravated DWI 1.
In either scenario, the allegation must be proven beyond a reasonable doubt. First, this means that the district attorney must demonstrate that you were driving under the influence of alcohol. In the absence of a specific alcohol level score measured by an Intoxilyzer, proving impairment might appear difficult. However, even if the state does not have access to a precise breathalyzer measurement to verify that blood alcohol content was .08 or higher, they only need to demonstrate that the driver was “impaired to the slightest degree,” often determined through driver behavior, appearance, odor, or the failure of a field sobriety test.
An Experienced Local Private Criminal Defense Attorney Can Help
Barry Klopfer began his legal career in 2004 as a DWI prosecutor in Gallup and is extremely familiar and competent with the local court practice and prosecutors. Due to the severity of the legal penalties for driving under the influence, the best defense to any impairment case essentially requires a skilled and local attorney.
Only criminal defense private attorney Barry Klopfer at the Law Office of Barry Klopfer P.C. has such extensive local criminal DWI defense experience. Mr. Klopfer can be reached at (505) 722-9331. Call today to schedule an consultation if you or a loved one is charged with DWI.