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Preface
1. DWI Offenses and Elements
1.1 Overview
1.2 DWI Offenses - Generally
1.2.1 Statutory Presumptions Applicable to DWI Offenses
1.2.2 Driving Under the Influence of Intoxicating Liquor, §66-8-102(A)
1.2.3 Driving Under the Influence of a Drug, §66-8-102(B)
1.2.4 Driving with a Specific Alcohol Level, §66-8-102(C)
1.2.5 Aggravated DWI: Driving with an Alcohol Level of .16 or Higher, §66-8-102(D)(1)
1.2.6 Aggravated DWI: Driving Under the Influence of Intoxicating Liquor or Drugs and Causing Bodily Injury, §66-8-102(D)(2)
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)
1.3 DWI Elements Common to All DWI Offenses
1.3.1 Under the Influence
1.3.2 Intoxicating Liquor
1.3.3 Drugs
1.3.4 Drive
1.3.5 Vehicle
1.3.6 Within the State
1.3.7 Uniformed Officer
1.4 DWI: A Strict Liability Criminal Offense
1.5 Defenses to a DWI Prosecution
1.5.1 Common DWI Defenses
1.5.2 The Defense of Duress
1.6 Conclusion
2. Initial Stop, Field Sobriety Testing and Arrest
2.1 Overview
2.2 Reasonable Suspicion For a Traffic Stop
2.2.1 DWI Roadblocks
2.2.2 Citizen Reporting of Possible DWI or Other Violations of the Law
2.2.3 Community Caretaker Role of Police Officers
2.3 Initial Contact Between the Officer and the Driver
2.4 Field Sobriety Tests (FSTs)
2.4.1 Horizontal Eye Gaze Nystagmus (HGN) Field Sobriety Test
2.4.2 Walk-and-Turn and One-Leg Stand Field Sobriety Tests
2.4.3 Inability to Take Standardized Field Sobriety Tests and Discussion of Alternative Field Sobriety Tests
2.4.4 Refusal to Take Field Sobriety Tests
2.5 Probable Cause and Arrest
2.6 Conclusion
3. Implied Consent and Breath and Blood Testing
3.1 Overview
3.2 Implied Consent Act Advisories
3.3 Refusal to Submit to Breath and/or Blood Testing
3.3.1 Refusal Based on Insufficient Samples Being Indicated by the Testing Equipment
3.3.2 Refusal Based on the Receipt of Only One Measurable Breath Sample
3.3.3 Refusal by Not Taking the Testing Method Chosen by Law Enforcement
3.3.4 Refusal by Taking One Testing Method Chosen by Law Enforcement but not the Second Method Chosen by Law Enforcement
3.4 Subsequent Change of Mind After Initial Refusal to Test
3.5 Right to an Independent Test
3.6 Requirements for a Valid Breath Test
3.6.1 Twenty-Minute Deprivation/Observation Period for Breath Tests
3.6.2 Breath Testing Machine Calibration
3.7 Requirements for a Valid Blood Test
3.7.1 Blood Sample Collection Under the Implied Consent Act
3.7.2 Blood Sample Extracted for Medical Treatment
3.7.3 Search Warrant for Blood Test
3.8 Time of Breath and/or Blood Testing and “Relation-Back” Evidence
3.8.1 What is “Relation-Back” Evidence?
3.8.2 How Long a Delay is Too Long?
3.8.3 What Types of “Relation-Back” Evidence Can be Used by the Prosecution?
3.8.4 Factors to Consider Regarding Delays Between Driving and BAC Testing
3.8.5 The Use of Expert Witnesses for “Relation-Back” Evidence
3.8.6 Conclusion on “Relation-Back” and Case Examples
3.9 Miranda Warnings and Right to Counsel at the Chemical Testing Stage
3.9.1 Miranda Warnings, Generally
3.9.2 Miranda Warnings and the Implied Consent Act
3.9.3 Right to Counsel and the Implied Consent Act
3.9.4 Practical Considerations
3.10 Conclusion
4. Sentencing
4.1 Overview
4.2 Degree of Conviction
4.3 The Impact of Prior Legal Representation on Sentencing for Subsequent DWI
4.4 DWI Sentences
4.4.1 First Conviction
4.4.2 Second Conviction
4.4.3 Third Conviction
4.4.4 Fourth, Fifth, Sixth, Seventh and Subsequent Convictions
4.5 Presentence Report
4.6 Sentencing Considerations
4.7 Deferral, Suspension and Probation
4.8 Mandatory Court Fees
4.9 DWI Conviction Records
4.10 Driver’s License Revocation
4.11 DWI and Double Jeopardy
4.12 Ignition Interlock Limited Driver’s License
5. Other Alcohol-Related Offenses
5.1 Misdemeanor Offenses
5.1.1 Open Container
5.1.2 Driving While Revoked
5.1.3 Boating While Intoxicated
5.2 Felony Offenses
5.2.1 Vehicular Homicide and
Great Bodily Harm by Vehicle
5.2.2 Injury to Pregnant Woman by Vehicle
5.3 Under Age 21 DWI-Related Offenses
5.3.1 Under Age 18: Delinquent Acts
5.3.2 Age 18-21: DWI-Related Offenses
APPENDICES
A. Case Flow Charts
A.1 DWI Flow in New Mexico
A.2 Magistrate: DWI Cases
A.3 Municipal: Arrestable Offenses
B. Penalty Charts
B.1 High Cost of DWI in New Mexico (offenses and penalties)
B.2 Penalties for Under-21 Alcohol Offenses
C. DWI Citation Form, Charge Descriptions and Supreme Court Order on Fines and Fees
C.1 DWI Citation Form
C.2 Approved DWI Charge Descriptions for Case Documents, Judicial Information Division, Administrative Office of the Courts
C.3 Supreme Court Order on Fines and Fees in Criminal Proceedings
D. Fact Sheet and Regulations: Scientific Laboratory Division, New Mexico Department of Health
D.1 Fact Sheet: Drug-Impaired Driving
D.2 Regulations: Blood and Breath Testing Under the New Mexico Implied Consent Act
E. Laws: DWI State Statute; DWI Uniform Traffic Ordinances
E.1 DWI State Statute, §66-8-102
E.2 DWI Uniform Traffic Ordinance 12-6-12.1: Operating a Motor Vehicle Under the Influence of Intoxicating Liquor or Drugs; Chemical Testing; Officer to File Statement; Immediate License Revocation
E.3 DWI Uniform Traffic Ordinance 12-6-12.2: Operating a Motor Vehicle Under the Influence of Intoxicating Liquor or Drugs; Penalties; Sentencing; Fees
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