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  • Think Twice before You Refuse a Breathalyzer Test – You Could Still be Charged with a DUI

    Posted on by JACK MKHITARIAN

    New Mexico DUI Attorney - New Mexico Criminal Law OfficesYou had a few drinks, and now you are driving home. While you thought you were okay to drive, you find yourself being pulled over by law enforcement.

    Now you are facing a sobriety field test, and the officer is telling you that you must take a breathalyzer. Even if you feel fine, even if you know you are not driving under the influence, refusing to take that test has consequences – ones you must understand first before you ever deny a test.

    Likewise, if you have been drinking and you may be over the legal limit, refusing the breathalyzer can do more harm than good in your case.

    New Mexico Uses Implied Consent

    In New Mexico, your access to a driver’s license and the ability to drive is not your right as a resident. Instead, it is a privilege. When you get your license, you sign a form indicating you understand and accept the responsibilities that come with it. One of those is the implied consent law.

    As part of the conditions for you having a license and driving in the state of New Mexico (and most states for that matter), you have implied consent. Therefore, when you get behind the wheel and start that ignition, you are consenting to a breathalyzer or blood test in the event an officer has probable cause to pull you over for suspicion of a DUI.

    In fact, state laws say that you agree to chemical tests of breath or blood to determine drug or alcohol intoxication. However, your consent to take these tests starts upon arrest.

    Now, you might be thinking that you can just refuse these tests and then you will not be arrested. This is not the case. Refusal will only give the officer cause to arrest you under suspicion of a DUI, and then implied consent takes over. Therefore, denying the officer’s request only ensures you will be arrested – whether you are under the legal limit or not.

    Understanding the Consequences

    If you do choose to refuse your breathalyzer test, the consequence is not just being arrested and dragged down to the station for a chemical test. Instead, you will face administrative and criminal penalties.

    You Lose Your Driver’s License

    Whether you are convicted of the DUI or not, your refusal automatically brings a revocation of your driver’s license by the state for one year. You would need to appeal this decision and request a hearing. But even then, the administration is likely to revoke because you violated your duty as a driver.

    Furthermore, you will be ineligible for a limited driver’s license. This means you cannot get a special license that allows you to drive to work or even pick up your children for an entire year.

    You Will be Charged with an Aggravated DWI

    If you refuse the test, officers are likely to arrest you and prosecutors will charge you with an aggravated DWI, which carries a mandatory jail sentence. Had you accepted the test, even with a positive BAC level, you would have had a first-time DUI that does not have a mandatory jail sentence. The aggravation DWI, however, does require that you serve time in jail.

    Refusing the test just means that you are accepting the fate of more time in jail when you might have been released on probation.

    Your Refusal Is Evidence Used against You

    Do not think that, because law enforcement never obtained a blood or breath sample, you are not going to be charged with a DUI or that a prosecutor could not win a conviction. Instead, your refusing the test can be played out as you admitting that you were guilty – after all, why would an innocent person refuse a test that would clear their name?

    Prosecutors will argue that same fact in court, and your refusal only hurts your chances at a DWI defense.

    You Could be Forced to Take the Test Regardless

    In special cases, prosecutors can secure a warrant that forces you to give blood, urine, or a breath sample. Typically, an accident with bodily injury or fatality must occur for a prosecutor to get this warrant. However, if they are successful in obtaining one, they can force you to take these tests.

    Instead of Refusing, Contact an Attorney

    Complying with law enforcement, in most cases, can help your case. While you might take the breathalyzer, that does not mean you have to talk to law enforcement after. Instead, exercise your right to an attorney.

    Then, contact an attorney that has experience handling cases just like this. The team at New Mexico Criminal Law Offices can help you with your DUI case.

    Our attorneys are experienced in cases just like these, and we can help you fight against your DUI charges even if you have a positive BAC. Likewise, we can help you if you did refuse the breathalyzer test, and we will aggressively defend you in court against accusations that you refused because you were guilty.

    The sooner you contact an attorney in a DUI case, the better the potential outcome. Without an attorney involved early on, you give the state a chance to only build their case.

    Contact an Attorney to Discuss Your Options for Your DUI Defense

    If you or a loved one has been arrested for a DUI, contact the attorneys at New Mexico Criminal Law Offices today. We can respond quickly and start mounting a defense that helps you avoid the long-term consequences of a DUI conviction.

    To get started, speak with us during a free case evaluation. You can also request more information online.