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  • What is a Refusal Hearing in NM?

    Posted on by JACK MKHITARIAN

    New Mexico  DUI Refusal Hearings Defense Attorneys

    Police with a BreathalyzerIt is a common misconception that you can avoid a DUI charge by refusing to take a breathalyzer, blood, or urine test. However, this is categorically untrue. In the state of New Mexico, if you are suspected of driving while under the influence, and the officer requests a test, you may wonder if you have the right to refuse such test.

    New Mexico Employs a Strict Implied Consent

    If you operate a motor vehicle, under New Mexico law, you are required to take a blood or breathalyzer test if you are arrested for a DUI. This is the implied consent law, which states clearly that if you are arrested by an officer with probable cause, then you must consent to taking a test to determine your blood alcohol content (BAC).

    The law enforcement officer then chooses which type of test would best represent your BAC. The test must, however, be completed within three hours of the last time you were driving to be applicable in court.

    Under New Mexico Statutes Annotated 66-8-107, this is a legal requirement, and failure to do so results in additional penalties. Assuming that you can refuse – or actually refusing – to take a test will not eliminate the opportunity for you to be charged with a DUI.

    The Penalty for Refusing

    Once the arresting officer has indicated that you are refusing to take the chemical test, you will have a refusal hearing. This hearing is more informal than other criminal procedures. Before the hearing, however, the officer has the right to take your driver’s license immediately upon refusal. You will be given a temporary permit, and you must go to a challenge to get your license back.

    There are penalties for refusing to take the chemical test, and during your refusal hearing with the motor vehicle division, you could face penalties that include a one-year license revocation – this can happen even if you are a first-time offender. In most cases, if you refuse to take a chemical test and the officer suspects you of drunken driving, the officer can obtain a warrant that is a court order requesting you to take the test. If you are unconscious, the officer could obtain a warrant to take your blood regardless of your consent.

    Refusal Does Not Help You Avoid a Conviction

    Even if you refuse a chemical test and law enforcement has no chemical evidence of your BAC, that is not enough to escape a DUI charge. The consequences of a DUI conviction are much harsher than refusing a chemical test, but the prosecution could use your refusal as evidence of your guilt. After all, if you were not drinking, why would you refuse to take the test? The officer’s testimony about your behavior and symptoms of intoxication can also be used against you.

    Protect Your Rights – Contact a Criminal Defense Attorney

    If you are arrested for a DUI, it is in your best interest to take a test. However, first consult with a criminal defense attorney before consenting or refusing the test. A DUI defense lawyer protects your rights and ensures that you do not self-incriminate, but also that you do not cause the case to be stacked against you. Contact New Mexico Criminal Law Offices today to explore your legal options. Schedule your free consultation now by calling 505-375-4671 or requesting more information online.