Clearing your name is our #1 priority.

meet the attorneys case results
  • What Are the Breath Test Admissibility Requirements in New Mexico?

    Posted on by JACK MKHITARIAN

    blood alcoholTo have your breathalyzer results admitted into court against you in a DUI, the requirement is not much. The state only requires that the officer be certified by the state Scientific Laboratory Division for operating that machine, and the machine must also be certified by the SLD. If it has been regularly maintained and calibrated, the results can and will be used against you in a DUI case.

    Anyone driving in New Mexico, under the Implied Consent Act, is required to take a breathalyzer if requested. By driving, you have essentially given consent to the test if you are under suspicion of DWI. While you have implied consent, that does not mean law enforcement can stop you and test you because they feel like it. Instead, they still must have probable cause for stopping you in the first place.

    The Basic Requirements for Admitting a Breathalyzer’s Results at Trial

    Understanding the basic requirements is critical because a breathalyzer’s result might not be admissible in any of the following requirements do not apply to your case. Each one of the following requirements must be met for law enforcement to submit your breathalyzer results into evidence:

    • The officer conducting the test must first check your mouth to make sure you have nothing inside that would alter the results.
    • The officer must conduct a 20-minute deprivation period, making sure you do not eat, drink, or smoke anything so that there is no interference with the result.
    • The officer must have a certification that is up to date from the New Mexico Scientific Laboratory Division for operating a breathalyzer unit.
    • The machine itself must carry a certification from the SLD.
    • The machine must have regular maintenance, and it must show calibrations of 0.07 to 0.09.
    • The officer must take two samples, and if the first two have more than a 0.02 percent discrepancy, then they must obtain a third that is within 0.02 percent of the first two results or the test is invalid.

    Even without Requirements Met, You Can Still be Charged with a DWI

    Even if all the requirements above are not met and the results are found inadmissible, the state might proceed with your DWI charge. After all, a breathalyzer is only half the evidence. The officer’s testimony can be crucial, and any eyewitness testimony about your behavior, or someone witnessing you consuming large amounts of alcohol before getting behind the wheel, might be all it takes to convict you.

    The Probable Cause Factor Plays a Role, Too – and a Big One

    Law enforcement could meet all the above requirements but still not be able to use the evidence against you in court. Why? Because they did not have probable cause to stop you in the first place.

    What Is Probable Cause in a DWI Case, and How Does That Impact it?

    Probable cause, whether a DWI or even being accused of burglary, is required for the arrest. In a DWI, the law is clear: Officers must prove they had probable cause to stop you and test you for a potential DWI. Without probable cause, they had no legal justification for stopping you and no legal justification for administering a breathalyzer, which would make the evidence inadmissible.

    So, how do you determine if an officer had probable cause to stop you? They must prove there was evidence you were intoxicated or reasonable suspicion of your intoxication. For example, you were swerving in and out of your lane while driving under the speed limit. That type of erratic driving is often indicative of someone under the influence; therefore, the officer may have probable cause to stop and test you.

    Refusing to Take the Test Will Be Used against You – and Might Prove Your Guilt Instead of Innocence

    You may assume that if you refuse the test, there will be no breathalyzer results to admit against you and you could fight your DWI. Unfortunately, refusing the test does the opposite. Instead, your refusal will be used against you in court, and the prosecution will have no problem spinning your refusal as an admission of guilt. After all, would a person not under the influence refuse to take a test proving their innocence?

    Therefore, refusing the test may do more harm than good.

    The Consequences of Refusing a Test Go Beyond Your Criminal Case – You Will Lose Your License, Too

    Not only could you increase the likelihood you will be convicted of a DWI just by refusing to take the test, but you could lose your driver’s license. You have an implied consent in New Mexico when your driver’s license is issued, and each time you get behind the wheel, you accept the consent and you must submit to a breathalyzer test if requested. Therefore, refusing means you have breached the implied consent, and the Department of Motor Vehicles can (and most likely will) suspend or even revoke your driver’s license.

    Your criminal case outcome has nothing to do with the administrative case for your driver’s license. Therefore, you want to appeal the suspension immediately to avoid losing your driver’s license. Most likely, you will know what happens to your license before your criminal case finalizes.

    If you can keep your license and you are convicted of your first DUI, you will most likely be required to use an ignition interlock device (IID). An IID is not only court-ordered but then you are also required to pay out-of-pocket for all associated expenses including installation and monthly monitoring.

    Arrested for a DWI? Contact a Local Defense Attorney Now

    Do not let a DWI affect you for the rest of your life. Not only are you facing jail time, but you could lose your employment, right to drive, and pay numerous amounts in fees. Furthermore, you will have the long-term consequences of a criminal record – and it is not always easy to come back from that. To avoid the lifelong consequences of a single night of bad judgment, contact a defense attorney from New Mexico Criminal Law Offices today.