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  • Consequences of Refusing a Breath Test in New Mexico

    Posted on by JACK MKHITARIAN

    refusing breathalyzerIf you have been stopped by a police officer for suspicion of drunk driving, you will generally be asked to show your license, registration and proof of insurance. You will also be asked if you have been drinking.

    At this point, the officer will be looking for signs that you are driving under the influence of alcohol. If he believes that you are intoxicated, he may ask you to step out of your vehicle and submit to a number of field sobriety tests to assess your ability to perform simple motor skills. You may be asked to touch a finger to your nose, walk in a straight line or stand on one leg.

    These motor skills tests are often difficult for even a sober individual to pass, and you are not required by law to accept the officer’s request that you submit to them. However, if you do not, you will almost always be asked to submit to a blood alcohol test.

    The Breathalyzer

    The most definitive way of determining if you are driving under the influence of alcohol is to test your blood alcohol level (BAC). This can be done through a blood test, or more commonly by taking samples of your breath by means of a Breathalyzer. The Breathalyzer is a device that takes a sample of your breath and mathematically computes a blood alcohol reading.

    Your initial reaction may be to refuse to take the Breathalyzer, so as not to incriminate yourself. However, this may be the worst thing that you can do.

    Implied Consent

    It’s important to remember that your ability to drive is a privilege, not a right. The privilege is granted to you by the state under certain conditions. One of these conditions is called “implied consent.” This means that whenever you get behind the wheel, the state has your implied consent to test your blood or breath to determine your blood alcohol level. The law states:

    “Any person who operates a motor vehicle within this state shall be deemed to have given consent… to chemical tests of his breath or blood or… for the purpose of determining the drug or alcohol content of his blood if arrested for any offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while under the influence of an intoxicating liquor or drug.”

    In other words, your consent to take a blood or breath test to determine your blood alcohol level (BAC) is implied the moment you are arrested.

    Consequences of Refusing the Breathalyzer

    As mentioned above, your driving is privileged – not a right – so the state can revoke your license to drive for any worthy reason. The law goes on the state:

    “… the person refused to submit to a chemical test after being advised that failure to submit could result in revocation of the person‘s privilege to drive, shall revoke the person‘s New Mexico driver‘s license… for a period of one year…”

    So, if you refuse to be administered the breath test, your license will be suspended for a year and you will be ineligible for a limited driver’s license.

    In addition to this, refusing to take the breath test can have other adverse consequences:

    • Refusal to submit to the breath test will lead to a charge of Aggravated DWI/DUI, which carries a mandatory jail sentence. There is no mandatory minimum jail sentencing requirement for a first DUI, so by refusing to take the blood test, you are increasing the possibility that you will spend time in jail – even for a first-time DUI.
    • If your DUI resulted in someone being injured or killed, a warrant may be issued for your arrest and you may be ordered to take the test anyway. Furthermore, if the person whom you injured was pregnant, you may be charged with a third-degree felony, which carries a sentence of three years in jail.
    • Prosecution may point to your refusal as a reason for the court to assume that you were guilty of driving under the influence, which may lead to you being found guilty after all.

    New Mexico DUI/DWI Defense Attorneys

    If you have been arrested on suspicion of driving under the influence of drugs or alcohol, the penalties can be steep. Whether you’ve refused a chemical test, or have taken one and been charged with a DUI/DWI conviction, you need to talk with an experienced New Mexico criminal defense attorney. Contact the experts at the New Mexico Criminal Legal Offices today either online or by calling (505) 375-4664 and we can help you through this complex process.