Saturday, September 24, 2011

Driving While Intoxicated (DWI) and Driving Under the Influence (DUI) in New Mexico

Here is the post I was talking about regarding driving while intoxicated (DWI) and driving under the influence (DUI) in New Mexico. My law partner wrote this article and I thought it was a good follow up to the last article, and this one gives a great overview of what to expect with DWI or DUI charges.

As an Albuquerque criminal lawyer, I know that the crime of Driving Under the Influence (DUI) in New Mexico is a serious charge. In New Mexico a blood alcohol content (commonly referred to as BAC) of greater than .08% or more makes it illegal to operate a motor vehicle. For commercial drivers that limit is further reduced to .04%. A conviction for a first offense can result in significant fines and even jail time depending on aggravating factors. Examples of aggravating factors include:

  1. Being found to have a blood alcohol content of .16% or greater (two times the legal limit)
  2. Refusal to submit to chemical testing
  3. Causing injury to another human being while being unlawfully under the influence of drugs or alcohol
Note that in addition to the penalties listed in the DWI offense chart on our website; aggravating factors in New Mexico carry mandatory jail time, even for a first DUI.

Separate from the criminal sanctions listed above, penalties involving a person’s right to drive are handled through separate Motor Vehicle Department (MVD) hearings. When a person is arrested for a DUI they receive a “Notice of Revocation”. The accused person then has 10 days to request a hearing to contest this revocation. Upon making this request the license will be held within 90 days from the date of arrest. The hearings are conducted at law enforcement facilities and are presided over by a hearing officer.
The issues at this administrative hearing are limited to:

  1. whether or not the hearing was held no later than 90 days after the notice of revocation
  2. whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs
  3. whether the person was arrested
  4. whether or not the person refused to submit to a test upon request of the law enforcement officer (aggravating factor)
  5. the law enforcement officer advised the driver that the failure to submit to a test could result in revocation of the person's privilege to drive; or
  6. whether:
    1. the chemical test was administered pursuant to the provisions of the Implied Consent Act; and
    2. the test results indicated an alcohol concentration in the person's blood or breath of eight one hundredths (8/100’s) or more if the person is 21 years of age or older, four one hundredths (4/100’s) or more if the person is driving a commercial motor vehicle or two one hundredths (2/100’s) or more if the person is less than 21 years of age.
The standard of proof that the State must meet for a revocation hearing are much lower than that of the criminal proceedings. The State need only provide a preponderance of the evidence rather than prove beyond a reasonable doubt, making it that much more important to put forth all possible defenses. This can many times be accomplished with the aid of a competent Albuquerque DUI attorney.

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