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2. Initial Stop, Field Sobriety Testing, and Arrest 3. Implied Consent and Breath and Blood Testing |
1.1 Overview The crime of driving while intoxicated (DWI) involves operation of a vehicle by a person who has consumed a sufficient quantity of alcohol or drugs to affect the person’s ability to manage the vehicle safely, either demonstrably (by proof of impaired driving) or on a per se basis (by proof of a prohibited specific alcohol concentration level). §66-8-102. As the Supreme Court stated in State v. Johnson, 2001-NMSC-001, ¶ 17: The purpose of our DWI legislation is to protect the public from the risk of harm posed by intoxicated drivers. … The policy underlying the DWI statute is to prevent individuals from driving or exercising actual physical control over a vehicle when they, either mentally or physically, or both, are unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to themselves and the public. In fact, the public interest and potential harm posed by intoxicated drivers is so compelling that the offense of DWI is a strict liability crime. (internal quotations and citations omitted) Under the Implied Consent Act, §66-8-105 through §66-8-112, anyone who operates a motor vehicle in New Mexico is deemed to have given consent to breath and/or blood chemical tests if arrested for DWI. §66-8-107(A). The test results may then be introduced into evidence in any civil or criminal action arising out of the acts allegedly committed by the person tested. §66-8-110(A). The Implied Consent Act is also the basis for revoking drivers’ licenses administratively in a separate non-judicial action. The Act provides a series of revocation penalties for refusing to take the chemical test(s) or for driving with a breath and/or blood alcohol level over the legal limit. §66-8-111. (See Chapter 3 for a more detailed explanation of the Implied Consent Act and Chapter 4 for a more detailed discussion on Implied Consent driver’s license revocation.) 1.2 DWI Offenses - Generally DWI offenses fall within the following general categories of behavior:
There are three “basic” (i.e. non-aggravated) DWI offenses and three aggravated DWI offenses. The aggravated offenses are based on the same elements as the basic DWI offenses, but involve additional behaviors or actions that are considered to be more egregious and hence subject to greater punishment. What specific DWI offense a motorist is charged with is determined by law enforcement and/or the prosecution based on the facts of the case, the DWI statute or ordinance and, on occasion, case law. In cases where a motorist submits to either breath or blood testing, or both, the term “BAC” is commonly used by the judge, prosecution, defense and law enforcement as shorthand for the specific alcohol concentration either of those testing methods revealed. For example, the driver’s breath test revealed a BAC of .11. For breath tests, the alcohol concentration is determined by the testing equipment in grams of alcohol in 210 liters of breath, and for blood tests, the alcohol concentration is determined in the analysis by grams of alcohol in 100 milliliters of blood. §66-8-110(E). The basic DWI offenses are:
The aggravated DWI offenses are:
The elements of each DWI offense are explained further in this chapter. The jury instructions for DWI offenses are contained in Chapter 45 (Motor Vehicle Offenses) of the Uniform Jury Instructions - Criminal.
1.2.1 Statutory Presumptions Applicable to DWI Offenses The Implied Consent Act sets forth several presumptions based on a driver’s alcohol concentration level. A “presumption” is defined as being “an assumption of fact that the law requires to be made from another fact or group of facts….” Black’s Law Dictionary, 5th Edition. A presumption works in the following manner: if certain facts are presented to the court, it must then assume the existence of other facts resulting from them. The Implied Consent Act, in §66-8-110(B), provides the following presumptions:
The first two presumptions can be overcome by the prosecution in its efforts to prove its case beyond a reasonable doubt. Specifically, those presumptions can be overcome through the introduction of competent (relevant, believable, persuasive) evidence relating to whether the motorist was under the influence of intoxicating liquor. §66-8-102. For example, that evidence may include the signs of intoxication the driver exhibited, the manner in which the driver was observed operating his or her vehicle, any admissions made by the driver to alcohol consumption and performance on Field Sobriety Tests. As with all criminal offenses, evidence that is relevant to the elements of an offense can be admitted and considered in accordance with the Rules of Evidence.
1.2.2 Driving Under the Influence of Intoxicating Liquor, §66-8-102(A) (“Impaired to the Slightest Degree” DWI) - Elements See UJI Criminal 14-4501 for an instruction on the essential elements of this offense. Section §66-8-102(A) makes it unlawful for:
1.2.3 Driving Under the Influence of a Drug, §66-8-102(B) (“Impaired to the Slightest Degree” DWI) - Elements See UJI Criminal 14-4502 for an instruction on the essential elements of this offense. Section §66-8-102(B) makes it unlawful for:
1.2.4 Driving with a Specific Alcohol Level, §66-8-102(C) (“Per se” or “BAC” DWI) - Elements Drivers of Non-Commercial Vehicles: See UJI Criminal 14-4503 for an instruction on the essential elements of this offense. Section §66-8-102(C)(1) makes it unlawful for:
Drivers of Commercial Vehicles: Section §66-8-102(C)(2) makes it unlawful for:
NOTE: “Commercial motor vehicle" is defined as “a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:
1.2.5 Aggravated DWI: Driving with an Alcohol Level (BAC) of .16 or Higher, §66-8-102(D)(1) - Elements See UJI Criminal 14-4506 for an instruction on the essential elements of this offense. UJI Criminal 14-4509 is an instruction on all three types of aggravated DWI for use when the evidence supports more than one of the ways in which aggravated DWI can be committed. Section §66-8-102(D)(1) makes it unlawful for:
1.2.6 Aggravated DWI: Driving Under the Influence of Intoxicating Liquor or Drugs and Causing Bodily Injury, §66-8-102(D)(2) - Elements See UJI Criminal 14-4507 for an instruction on the essential elements of this offense. UJI Criminal 14-4509 is an instruction on all three types of aggravated DWI for use when the evidence supports more than one of the ways in which aggravated DWI can be committed. Section §66-8-102(D)(2) makes it unlawful for:
"Bodily injury" is defined as “an injury to a person that is not likely to cause death or great bodily harm to the person, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the person's body.” §66-8-102(T)(1). This may include injuries to the driver of the vehicle. 1.2.7 Aggravated DWI: Driving Under the Influence of Intoxicating Liquor or Drugs and Refusing to Submit to Chemical Testing, §66-8-102(D)(3) - Elements See UJI Criminal 14-4508 for an instruction on the essential elements of this offense. UJI Criminal 14-4509 is an instruction on all three types of aggravated DWI for use when the evidence supports more than one of the ways in which aggravated DWI can be committed. Section §66-8-102(D)(3) makes it unlawful for:
Conviction of this offense requires proof beyond a reasonable doubt of DWI and refusal to submit to chemical testing (i.e. breath and/or blood tests to determine alcohol or drug content). Refusal itself is not a criminal offense, although it can result in a separate administrative license revocation. 1.3 DWI Elements Common to All DWI Offenses The DWI offenses have many common elements, such as “under the influence” or “intoxicating liquor.” These elements have the same meaning in each type of DWI offense, e.g. “under the influence” means the same in §66-8-102(A) as it does in §66-8-102(D)(2). The elements common to all DWI offenses are explained below. 1.3.1 Under the Influence "Under the influence" is not defined in the DWI statute. From case law, it means that as a result of consuming intoxicating liquor and/or drugs, the defendant 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 defendant and the public. State v. Sanchez, 2001-NMCA-109, ¶ 6. The same definition is used in UJI Criminal 14-4501 (DWI) and UJI Criminal 14-243 (vehicular homicide). 1.3.2 Intoxicating Liquor “Intoxicating liquor” is not defined in the DWI statute. The Motor Vehicle Code defines "alcoholic beverages" as “any and all distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin, aromatic bitters or any similar alcoholic beverage, including all blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half percent alcohol but excluding medicinal bitters.” §66-1-4.1(D). 1.3.3 Drugs “Drug" is not defined in the DWI statute. The Controlled Substances Act defines “drug” as “substances recognized as drugs in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States or official national formulary or any respective supplement to those publications. It does not include devices or their components, parts or accessories.” §30-31-2(K). Note that §66-8-102(B) refers to being under the influence of “any drug.” This includes both illegal and legal (prescription and over-the-counter) drugs. Some law enforcement agencies have officers with specialized drug recognition training. According to the Drug-Impaired Driving Fact Sheet prepared by the Scientific Laboratory Division of the New Mexico Department of Health: Drug effects can vary between individuals. The effects are influenced by history of drug use (chronic or naïve user), tolerance, overall health, individual sensitivity to the drug, metabolism and other factors. Many drugs, especially those that affect the central nervous system, can impair driving. These include illicit drugs, as well as therapeutic and over-the-counter medications. Many therapeutic drugs that are available with or without a prescription can have unwanted side effects that impair driving performance. Illicit, therapeutic and over-the-counter drugs can impair driving performance. Drug-Impaired Driving Fact Sheet, p. 2, Appendix D.1 (PDF:54k). 1.3.4 Drive “Drive” is not defined in the DWI statute. New Mexico courts have ruled that the term “drive” in §66-8-102 means either driving or being in actual physical control of a vehicle. The vehicle does not need to be in motion. In Boone v. State, 105 N.M. 223 (1986), the Supreme Court upheld a DWI conviction against a defendant who was discovered in the driver’s seat of his car, stopped in a traffic lane late at night with the engine running and the lights off. The court held that “the offense of DWI under Section 66-8-102 does not require motion of the vehicle; the offense is committed when a person under the influence drives or is in actual physical control of a motor vehicle or exercises control over or steers a vehicle being towed.” Boone at 224. The court reached this conclusion by using the definition of “driver” in §66-1-4.4(K) of the Motor Vehicle Code. A person is in “actual physical control” over a vehicle when he or she exercises direct influence over the vehicle. The purpose of the "actual physical control" element “is to deter persons from placing themselves in a situation in which they can directly commence operating a vehicle while they are intoxicated, regardless of the location of the vehicle.” State v. Johnson, 2001-NMSC-001, ¶ 19. Examples of “actual physical control” of a vehicle under the DWI statute include:
The jury instructions on the essential elements of DWI require proof beyond a reasonable doubt that “the defendant operated a motor vehicle.” UJI Criminal 14-4501, 14-4502, 14-4503, 14-4506, 14-4507, 14-4508, 14-4509. UJI-Criminal 14-4511, an instruction on operating or driving a motor vehicle, states that a person is “operating” a motor vehicle if the person is:
The defendant’s statements may be used to prove that he or she was the driver. State v. Greyeyes, 105 N.M. 549, 552 (Ct. App. 1987). Typically, such statements are introduced by the prosecution in situations, for example, where law enforcement comes upon a vehicle where two or more alleged occupants are already outside of the vehicle and therefore the officer did not observe anyone in the driver’s seat. 1.3.5 Vehicle "Vehicle" is defined as “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, including any frame, chassis or body of any vehicle or motor vehicle, except devices moved exclusively by human power or used exclusively upon stationary rails or tracks.” §66-1-4.19(B). "Highway" means “every way or place generally open to the use of the public as a matter of right for the purpose of vehicular travel, even though it may be temporarily closed or restricted for the purpose of construction, maintenance, repair or reconstruction.” §66-1-4.8(B). “Motor vehicles,” which are a subset of vehicles, are defined as "every vehicle that is self-propelled and every vehicle that is propelled by electric power obtained from batteries or from overhead trolley wires, but not operated upon rails. §66-1-4.11(I). The term “vehicle” in §66-8-102 should be interpreted in accordance with legislative intent. State v. Saiz, 2001-NMCA-035, ¶ 2. The purpose of §66-8-102 "is to prevent individuals who, either mentally or physically, or both, are unable to exercise the clear judgment and steady hand necessary to handle a vehicle with safety both to the individual and the public." State v. Richardson, 113 N.M. 740, 742 (Ct. App. 1992). The DWI statute “is not expressly limited to a type of vehicle with a particular function--all vehicles are included." Richardson at 741. The definition of vehicle does not require that it be primarily, regularly or frequently used on a highway, but rather that it may be lawfully used on a highway. Therefore, “vehicle” includes:
Note on Snowmobiles, All-Terrain Vehicles and Off-Highway Motorcycles: 1.3.6 Within the State DWI can occur on public or private property when the offense is cited under state law. In State v. Johnson, 2001-NMSC-001, ¶ 1, the Supreme Court stated: “After a careful and in-depth analysis of the applicable statutes, existing case law, and the policy underlying our DWI legislation, we reject any public/private property distinction with respect to the offense of DWI.” Two DWI cases were consolidated in Johnson. In one, the defendant was in the driver’s seat of a truck parked on private property. The engine was not running, but the key was in the ignition. In the other, the defendant was in the driver’s seat of a vehicle parked in the private parking lot of a motel. The engine was running, the key was in the ignition, and a large pool of condensation was found under the exhaust pipes, indicating that the car had possibly been at the location for three hours. The Supreme Court upheld the charges against both defendants, saying that “the State may charge a person who is in actual physical control of a non-moving vehicle with DWI despite the fact that he or she is on private property.” Johnson at ¶ 1. The Johnson court ruled that the legislature did not intend to place a geographical limitation on the offense of DWI depending on the type of activity constituting the "driving" of a vehicle. The only geographical limitation to the offense of DWI is found in the statutory operative words "within this state." The plain meaning of "within this state" is quite broad and does not specify a distinction between public and private property in the interior of the state of New Mexico. In general, therefore, the DWI statute has no geographical limitation and applies to both public and private property.
Native Americans and State Court Jurisdiction for DWI Because New Mexico contains several Indian reservations, and those reservations are sovereign nations, there may be jurisdictional problems with DWI cases arising on reservation land. United States v. McBratney, 104 U.S. 621 (1881). Under the logic of case law, a non‑Indian arrested for DWI on reservation land should be subject to state court jurisdiction. Draper v. United States, 164 U.S. 240 (1896). In keeping with those decisions, the New Mexico Supreme Court has held that a state court has jurisdiction to try a non‑Indian on a charge of DWI on an Indian reservation. Ryder v. State, 98 N.M. 316 (1982). An Indian arrested for DWI on a reservation or other areas of Indian country is subject to either federal jurisdiction under the General Crimes Act or tribal jurisdiction. State v. Begay, 105 N.M. 498 (Ct. App. 1987); State v. Ortiz, 105 N.M. 308 (Ct. App. 1986). Conversely, an Indian arrested for DWI in non-Indian country is subject to state jurisdiction. State v. Frank, 2002-NMSC-026. As a general principle, the state does not have jurisdiction over crimes committed by an Indian in Indian country. State v. Dick, 1999-NMCA-062, ¶ 8. Under 18 U.S.C. §1151, Indian country means Indian reservations, Indian allotments and dependent Indian communities. The U.S. Supreme Court has established a two-prong test for determining what constitutes a dependent Indian community. In Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, 527 (1998), the court held that an area is a dependent Indian community if: (1) the land was set aside by the federal government for the use of Indians as Indian land; and (2) the land is under federal superintendence. The New Mexico Supreme Court adopted this two-prong test in State v. Frank, 2002-NMSC-026, for determining state court jurisdiction over Indians in criminal and civil cases. The Frank court upheld the district court’s conclusion that the state had jurisdiction over a member of the Navajo nation on charges of vehicular homicide occurring on a state road in a checkerboard area that was not a dependent Indian community under the Venetie test. 1.3.7 Uniformed Officer New Mexico law requires that arrests for traffic violations and misdemeanor Motor Vehicle Code offenses be made by officers in uniform:
The Court of Appeals examined the meaning of the uniformed officer requirement in State v. Archuleta, 118 N.M. 160 (Ct. App. 1994), where the defendant was stopped and issued a citation for speeding. The court stated that “it seems clear enough that the intention of the legislature in requiring the officer to wear a uniform plainly indicating his official status was to enable the motorist to be certain that the officer who stops him is, in fact, a police officer.” Archuleta at 162. Recognizing that police officers may have more than one uniform or may wear different combinations, the court adopted two alternative tests for determining if an officer is in "uniform" within the intent of the statute:
or
The court in Archuleta determined the facts of the case satisfied both tests. The officer was using a marked police car and was wearing a windbreaker with "Albuquerque Police" clearly marked in two places. This supported a finding that he was wearing a uniform clearly indicating his official status. The officer testified it was APD's policy for off-duty officers making a traffic stop to wear either jackets or wind-breakers displaying the police shield on the front and the shoulder when they are able to do so. This evidence satisfied the objective test. In addition, the trial court could infer the defendant actually knew the officer was a police officer and was acting in his official capacity. The defendant pulled up alongside the police car, accelerated after observing the officer in civilian clothes, and then abruptly confronted the officer about his lack of uniform immediately after the stop. These facts would permit an inference that the defendant, a former law enforcement officer, was trying to taunt the officer and challenge his official status because of his apparel. The trial court could find the defendant demonstrated little doubt regarding his knowledge of the officer’s official status. This satisfied the subjective test. Note that an officer with reasonable suspicion that the law has been or is being violated may stop a vehicle to investigate, even if the officer is not in uniform and not displaying his or her badge. In State v. Ray, 91 N.M. 67 (Ct. App. 1977), the defendant challenged an arrest based on an earlier version of §66-8-124(A), which at that time stated: "No person shall be arrested for violating the Motor Vehicle Code or other law relating to motor vehicles punishable as a misdemeanor except by a full-time, salaried peace officer who, at the time of arrest, is wearing a uniform clearly indicating his official status." The Court of Appeals ruled the statute “does not prevent officers from carrying out their duty to investigate possible criminal behavior even if the officers are not in uniform. The statute may prevent an arrest if the arrest is to be for violations covered by the statute and the officer is not in uniform. In those circumstances the plain clothes officer would have to wait for the arrival of the uniformed officer.” Ray at 70. 1.4. DWI: A Strict Liability Criminal Offense Many types of criminal offenses require the prosecution to prove beyond a reasonable doubt that the actions of the accused were done with a specific intent to do a further act or achieve a further consequence. Such offenses are generally known as “specific intent” crimes. For example, aggravated battery is a specific intent offense given that the prosecution must prove the accused had the specific intent to knowingly injure a person. In contrast to “specific intent” crimes, “[a] strict liability crime is one which imposes a criminal sanction for an unlawful act without requiring a showing of criminal intent.” State v. Lucero, 87 N.M. 242 (Ct. App. 1975). The rationale for making an act criminal without regard to the alleged perpetrator’s intent is that the public interest is so compelling, or the potential harm so great, that the public interest must override the individual’s interests. State v. Barber, 91 N.M. 764 (Ct. App. 1978). In State v. Harrison, 115 N.M. 73, 78 (Ct. App. 1992), the Court of Appeals held that DWI is a crime, in and of itself, regardless of the intent of the driver, and therefore it is a strict liability crime. The court analyzed the state’s DWI statute, §66-8-102, and noted it made absolutely no reference to a required intent on the part of a driver. Instead, the court determined §66-8-102 clearly provides the only thing necessary to convict a defendant of DWI is proof beyond a reasonable doubt that the defendant was driving a vehicle either under the influence of intoxicating liquor or while he had a specific percentage of alcohol in his blood. Harrison at 77. In other words, the prosecution, while required to prove the statutory elements of DWI beyond a reasonable doubt, need not also prove the defendant specifically intended to drive while under the influence of intoxicating liquor. In reaching its conclusion the court also relied on the public’s interest in deterring DWI, given the dangers in such activity not only to those who drive while DWI but also to the general public who are injured or killed as a result of a DWI driver. It is vital to remember that DWI, as a strict liability offense, still requires the prosecution prove all of the statutory elements of the charge beyond a reasonable doubt. No matter how compelling the public’s interest in deterring DWI and punishing those convicted, no matter how horrendous the damage done by an alleged DWI driver, the prosecution must always be held to the “beyond a reasonable doubt standard” before a finding of guilt can result. 1.5 Defenses to a DWI Prosecution Given the strict liability nature of the offense of DWI, a defendant cannot validly argue, either pro se or through his attorney, that he did not intend to drive DWI or that he cannot be convicted of DWI since he was too drunk to form the intent to drive in such a condition. This section will discuss the areas in which a defendant can raise challenges to, or question the ability of, the prosecution’s efforts to prove the elements of DWI by the required “beyond a reasonable doubt” standard. As is the case in virtually every criminal prosecution, many defense challenges to the prosecution’s ability to prove its DWI case depend on the specific facts of the case and their interpretation by the judge, with reference to both statutory and case law. 1.5.1 Common DWI Defenses The most commonly seen areas of defense challenges to the prosecution’s ability to prove its DWI case include:
This list is certainly not intended to be a thorough summary of the areas of focus in a DWI defense, but rather a breakdown of the most commonly seen challenges to the prosecution’s efforts to prove its case. For a more complete discussion of these areas of DWI investigations and prosecutions, see Chapters 2 and 3. Since DWI is a strict liability offense, a defendant cannot validly present the defenses of, for example, “I did not intend to drive in that condition,” or “I cannot be convicted of DWI because I was too drunk to form the conscious intent to drive drunk.” Harrison, 115 N.M. at 78. As the court recognized, to allow that second defense would be absurd and contrary to the DWI statute’s intended purpose. Harrison at 77. However, in State v. Rios, 1999-NMCA-069, the Court of Appeals held that the common-law defense of duress is available to defendants charged with the strict liability offense of DWI. In that case, the defendant claimed that, after leaving a bar, he and his brother were threatened with violence from an angry mob. Therefore, they both sought refuge in the defendant’s truck, and, as the alleged attack continued, the defendant started the vehicle and slowly began to drive out of the parking lot. Almost immediately thereafter, the police arrived and eventually arrested the defendant for DWI. Rios at ¶ 2. Under New Mexico law, the defense of duress in the context of a strict liability crime consists of four elements: (1) the defendant acted under unlawful and imminent threat of death or serious bodily injury; (2) the defendant did not find himself in a position that compelled him to violate the law due to his own recklessness; (3) the defendant had no reasonable legal alternative; and (4) the defendant’s illegal conduct was directly caused by the threat of harm. Rios at ¶ 25. If a defendant raises the defense of duress in a DWI prosecution, it is the defendant’s burden to provide sufficient evidence to place the issue of duress before the court. In addition to considering all of the elements of a duress defense, the cornerstone of the analysis is that the defendant must have had no alternative, either before or during the event in question, to avoid violating the law. Rios at ¶¶ 17, 22. While the defense of duress is available, obviously a defendant would have to have the “perfect storm” of facts in order to successfully have a court consider the defense. 1.6 Conclusion Perhaps no other criminal offense in New Mexico receives the attention that DWI does from the executive branch, the legislature, the courts, advocacy organizations, the media and the general public. However, despite the attention and the resulting public concerns and pressures it produces from those groups, it is vital for judges to keep in the forefront of their minds that the DWI defendant, like all other criminal defendants, is entitled to the presumption of being innocent until proven guilty and has the right to legal representation. It is likewise critical that judges require the prosecution to prove each of the statutory elements of DWI beyond a reasonable doubt. Finally, it is critical that judges remember that attorneys for both sides are obligated to zealously represent their clients, within the bounds of the law, and in accordance with legal ethics and the attorney code of conduct. |
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Judicial Education Center
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