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In New Mexico, Could I Be Arrested for Smelling Like Alcohol?


DUI Defense Attorneys Serving Albuquerque and all of New Mexico

Field Sobriety TestNew Mexico, unfortunately, has some of the highest rates for drunken driving. To combat this, legislators have enacted harsh penalties and laws. In the state, police may conduct sobriety checkpoints at random or on the holidays, conduct group patrols, use field sobriety tests, and even utilize a mobile blood alcohol content (BAC) vehicle to check a person for signs of intoxication.

Just like most states in the country, New Mexico considers a person legally impaired if his or her BAC is over 0.08. If you are convicted of a DUI, you could face serious penalties, including extensive jail time. When you fail the BAC test, your driver’s license is confiscated by law enforcement on the scene.

However, one question that is often raised is whether the officers could test your blood for alcohol if you smell like alcohol, or arrest you for a DUI based on the odor. The answer is not simple, and it depends on the circumstances.

Probable Cause for a DUI Stop

Law enforcement officers in the state are well-trained in what an intoxicated person would do and how he or she would drive under the influence. An officer must observe the signs of intoxication to justify the stop. Some behaviors that could be used as probable cause include:

  • A vehicle driving without headlights at night.
  • A driver going the wrong way on the road.
  • Uneven or unexplainable braking.
  • Ignoring turn lanes and going straight through.
  • Speeding or driving unreasonably slow.
  • Weaving in traffic.
  • Tailgating other drivers.
  • Stopping in the middle of the road without reason.

Once the driver is pulled over, the officer will look for additional signs of intoxication. This is where an odor could apply. If the odor of alcohol is detected on the driver’s breath, the officer may feel that he or she has justification to do a chemical test. In this instance, yes, the detection of an alcoholic odor is enough to justify a test.

Refusing to Take the Chemical Test

If you are pulled over and the officer detects alcohol on your breath, he or she may request a field sobriety test or BAC level to determine if you are truly intoxicated. If you refuse, you may still be arrested. The odor of alcohol on your breath, combined with the officer’s testimony about your erratic driving, could still be evidence enough to convict you of a DUI. Also, your refusal may be used against you in court. It is important to speak with a DUI defense lawyer before refusing the test.

If you were arrested based on alcohol on the breath, but you were not driving erratically or you do not feel the officer had probable cause, a criminal defense attorney may be able to help. Schedule a consultation with New Mexico Criminal Law Offices by calling 505-375-4763 or request more information online.