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Can I Refuse the BAC Test and Not Be Charged with a DUI?


refusing breathalyzerYou may think that if you refuse to take a breathalyzer or BAC test for a DUI arrest, you could avoid a conviction. But, like many other states, New Mexico has imposed the Implied Consent Law, which could mean that you could not only face a driver’s license revocation, but you could still be convicted of a DUI and sentenced to jail. If you want to refuse any type of test, speak with a criminal defense attorney first.

The Implied Consent Law

New Mexico, like many other states cracking down on drunken driving, has the implied consent law. This law states that if you are suspected of or arrested for a DUI, and that officer has probable cause to believe you are under the influence, you consent to taking a chemical test (blood or breath) in order to determine your BAC (blood alcohol content) level. The officer has the right to choose which chemical test he or she wants to administer, and are required to administer that test within three hours of when you were last driving. If this is not done, the evidence will no longer be useable in court against you. The New Mexico implied consent law falls under New Mexico Statutes Annotated 66-8-107.

What Happens if I Refuse?

If you do refuse to take the chemical test, it is important to understand the consequences of such actions. Once you have been arrested for a DUI, the officer will tell you about your rights – including your rights to take the test and what may happen if you refuse it. You can also have a physician of your choice administer a second test and the state will pay for it; therefore, you do not have to worry about altered results. Also, the police officer is required to inform you that you may lose your license for up to one year if you refuse to take the test.

If you still refuse to take the test once you are informed of your rights, then the officer will confiscate your driver’s license. They will give you a permit that lasts 20 days and you will have to schedule your own hearing with the DMV in order to determine if your license suspension is permanent. You will also receive information so that you can properly challenge the suspension – if necessary.

There are strict consequences for refusing to take a breath or blood test. For your first and up to your third refusal offense, each offense comes with a one-year license suspension.

Also, if your arrest was because you caused an injury or death to another person with your driving, the officer can get a warrant from the courts ordering you to subject yourself to the test. If you are unconscious, the state can administer the test even if you have not been legally arrested.

Will Refusal Help Me Avoid a Conviction?

In some cases, a refusal gives prosecutors little evidence to prove that you were intoxicated; however, your refusal could be seen by the courts as evidence that you knew you were intoxicated. Also, the police officer’s testimony and any other evidence could be presented to the court – such as a witness who saw you consuming alcohol prior to driving, and who testifies to your inebriation.

Do not assume that refusing a chemical test will mean that you will not be charged or convicted with a DUI. If you are convicted, you will not only face the penalties of that conviction, but you will still have the one-year license revocation for your refusal, in addition to the penalties of your conviction.

Do Not Refuse – Contact a Criminal Defense Attorney

Before you refuse any chemical tests, contact a criminal defense attorney immediately after your arrest. The team at New Mexico Criminal Law Offices can help you with your case. We understand how scary it can be to be arrested for a DUI, but to avoid harsh penalties, you need to speak with an attorney as soon as possible. We offer free case evaluations, so call us now at 505-375-4664, or fill out our online contact form with your legal questions.