In New Mexico, it is unlawful for a person to drive a vehicle while under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle. N.M. Stat. Ann. § 66-8-102 (West 2010).
Implied Consent
- Any person who operates a motor vehicle in New Mexico shall be deemed to have given consent to chemical tests of his breath or blood or both 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. Id. § 66-8-107(A).
- Evidence of a motorist’s refusal to take a breath alcohol test is admissible under the Implied Consent Act since there is no constitutional right to refuse to take the test and the right granted by the legislature is merely the right not to be forcibly tested after manifesting refusal. Id. §§ 66-8-105 to 66-8-112; McKay v. Davis, 653 P.2d 860 (1982).
- Accused has an opportunity to arrange for a person who is employed by a hospital or physician of his own choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer to be paid for by the police department. Id. §§ 66-8-109(B),(E).
- Refusal of a motorist to take a breath alcohol test is relevant to show his consciousness of guilt and fear of test results. N.M. Stat. Ann. §§ 66-8-105 to 66-8-112 (West 2010); McKay v. Davis, 653 P.2d 860 (1982).
- If an offender refuses to submit to chemical tests and is convicted, offender will be guilty of ‘Aggravated DUI.’ N.M. Stat. Ann. § 66-8-102(D)(3) (West 2010). See ‘Penalties’ section.
Penalties
- First offense – imprisonment for not more than ninety days or by a fine of not more than five hundred dollars ($ 500), or both; offender shall be sentenced to not less than twenty-four hours of community service; the offender may be required to pay a fine of three hundred dollars ($ 300); offender shall be ordered by the court to participate in and complete a screening program described in Subsection K of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a “DWI school”, approved by the bureau and also may be required to participate in other rehabilitative services as the court shall determine to be necessary. Id. § 66-8-102(E).
- Second offense – imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($ 1,000), or both; an offender shall be sentenced to a jail term of not less than ninety-six consecutive hours, not less than forty-eight hours of community service and a fine of five hundred dollars ($ 500). Id. § 66-8-102(F)(1).
- Third offense – imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($ 1,000), or both; an offender shall be sentenced to a jail term of not less than thirty consecutive days, not less than ninety-six hours of community service and a fine of seven hundred fifty dollars ($ 750). Id. § 66-8-102(F)(2).
- Fourth offense fourth degree felony – imprisonment for eighteen months, six months of which shall not be suspended, deferred or taken under advisem*nt. Id. § 66-8-102(G).
- Fifth offense fourth degree felony – imprisonment for two years, one year of which shall not be suspended, deferred or taken under advisem*nt. Id. § 66-8-102(H).
- Sixth offense third degree felony – imprisonment for thirty months, eighteen months of which shall not be suspended, deferred or taken under advisem*nt. Id. § 1978, § 66-8-102(I).
- Seventh or subsequent offense third degree felony – imprisonment for three years, two years of which shall not be suspended, deferred or taken under advisem*nt. Id. § 66-8-102(J).
Other Penalties & Penalty Enhancers
- First offense, Aggravated DUI* – In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than forty-eight consecutive hours in jail. Id. § 66-8-102(E); Id. § 66-8-102(D)(3).
- Second offense, Aggravated DUI* – In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than ninety-six consecutive hours. Id. § 66-8-102(F)(1); Id. § 66-8-102(D)(3).
- Third Offense, Aggravated DUI* – In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than sixty consecutive days. Id. § 66-8-102(F)(2); Id. § 66-8-102(D)(3).
*’Aggrivated DUI’ triggered if implied consent is revoked. Id. § 66-8-102(D)(3).
Sobriety Checkpoints
In New Mexico, sobriety checkpoints are upheld under state and federal Constitution.
A legal turn which takes a motorist away from a checkpoint is not sufficient to establish a reasonable suspicion of criminal activity, but a legal turn in conjunction with other circ*mstances (such as a turn which does not fit with normal traffic patterns) may constitute a reasonable suspicion to justify an investigatory stop. State v. Anaya,217 P.3d 586(2009).
The New Mexico Supreme Court has ruled that only evidence seized in accordance with New Mexico law may be introduced as evidence in state court. Federal Border agents may not introduce evidence from immigration checkpoints carried out in such a way so as to curb constitutional guarantees granted by the state constitution. The New Mexico court overturned the conviction of a defendant arrested on a drug charge after evidence was seized from his vehicle at a border patrol stop. New Mexico considered a greater expectation of privacy in vehicles than federal law. State v. Cardenas-Alvarez, 25 P.3d 225 (2001).
Case Law
U.S. v. Aguilar, 301 F.Supp.2d 1263 (2004) — A person is “under the influence” within the meaning of New Mexico statute governing crime of driving under the influence of alcohol if, as a result of drinking liquor, the driver was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the driver and the public.
