It does, but you’re still likely to get a more favorable plea deal because it makes the state’s case a lot harder to show. Earlier, we were talking about how if the state has a good case against you, you get a worse plea deal, and if they have a problem with your case, you’re getting a better plea deal, so you’re giving them problems with their case by declining to give a breath sample. I’ve had plenty of cases where a client gives a breath sample and it’s 0.16 or above, and they didn’t give themselves anything by giving them a breath sample, and it’s still aggravated because it’s so high.

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There is something called aggravated DWI in New Mexico. There are three ways to get charged with an aggravated DWI:

  • First, you give a breath or blood sample and your alcohol is 0.16 or above.
  • Second, you decline to give a sample at all.
  • Third, you hurt another person during the DWI. That does not turn it from a misdemeanor to a felony.

The only way to turn it from a misdemeanor to a felony is vehicular homicide or child abuse. In New Mexico, if you drive under the influence of alcohol with a child in the car, that is considered child abuse.

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In New Mexico, DUI’s in other states will count against you in New Mexico, and every DWI you get brings greater punishment.

  • First simple DWI, there is no mandatory time limit, and the maximum is 90 days.
  • Second, there is mandatory time.
  • Third, there will be 30 days mandatory time.
  • Fourth, becomes a felony and it goes up from there.

If you have DWI’s in other states, that can make your New Mexico DWI carry much greater punishment. That is something that you want to consider when you are going to trial. If you lose, you are going to be looking at more time than if this had been your first DWI.

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No. In New Mexico, the state would have to consent to your waiver of a jury trial.

Sometimes they do, and sometimes they do not. Generally, bench trials are easier for them to win, so a lot of times they will agree to waive the jury trial, but I’ve had cases where they refuse and they demand a jury trial.

If you have a case that has a very technical legal defense, sometimes judges can be more favorable to you than a jury. Maybe it’s a case where what you did looks bad. A jury is not going to be happy about it, but you have a legal loophole or something like that; judges are more likely to go for that than a jury would be.

You can, and occasionally it is a good idea to do it, but that is by far the exception rather than the rule.

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DWI: IS THERE ALWAYS A JURY TRIAL?

by Margaret Strickland

Almost always. There are some rare exceptions in New Mexico where you would only be entitled to a bench trial, but that would be for crimes with a penalty of less than six months, which in Mexico is basically only DWI’s and possession of marijuana and the case is charged for some reason in District court, rather than magistrate court. Except for those 6 month exceptions, you always have a right to a jury trial.

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ADMISSION OF GUILT AT THE SCENE

by Margaret Strickland

My hope is that would not happen, but if a person were to say, flat-out, “I am guilty,” at the scene, I would probably first see if there were any oppression issues: If the person had been illegally stopped by officers. If there was any kind of Miranda violation, and then I would carefully see if possibly there was another crime in which the person plead guilty.

For example, I’ve had cases where a person is stopped and they may have marijuana in their pocket. But, maybe also they are driving a stolen car. So, the person says, “I’m guilty.” Well, what are they saying they are guilty to? If officers have charged him with having  a stolen car now, I want to say that they are guilty because they knew that they had marijuana in their pocket, which is a very low-level crime in New Mexico; not because they knew the car was stolen.

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It makes it much more difficult, which is why you should decline to take those tests. If you’re driving was awful, if you were running into parked cars and you can’t stand upright, and then they find a whole bunch of some drug in your system, that’s going to be their argument. But, most cases aren’t like that. In most cases, the person’s driving is okay. Their actions are okay. But they will use these little tests where it is very subjective for the officer to say what they saw on the test, what they measured in the test, and they can use that against you. Declining to take the test is always a good idea.

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Yes, you can. But, drugs are normally measured in nanograms per milliliter of blood, which nobody really understands, especially jurors. But say they find 5 nanograms per milliliters of blood – prosecutors can’t argue that that amount means. Specialists who analyze that data will say, “those numbers don’t really have meaning because the drugs affect everybody differently.”

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