No, there is not. They try to pass one every year, and we lobby against it because there is no scientific basis behind any drug saying that some certain level in your blood renders you incapable of safely operating a motor vehicle.

Colorado does have a law about certain amounts of THC in a person’s blood, and that was done as a compromise when they legalized marijuana: A separate bill was passed. However, New Mexico does not have a 0.08 or equivalent of that for any drug.

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Probably not. If you were 90 pounds, and you had two beers over two hours, you’d be a 0.04, and that’s just an estimate because everybody’s different, and it doesn’t convert predictably. For example, if you weigh 170, the estimate is you have to have at least 5-½ beers over 2 hours to be at a 0.08.

The problem with 0.08 is that it is just an arbitrary number. They have studies, supposedly, from the 1970’s, but it really is arbitrary. I know that I should not drive after just a few drinks, but there are people out there who have such a tolerance that they could drink a whole lot and still drive.

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In New Mexico, if you are over 21, it is 0.08 or above, but your actual level of intoxication depends on a lot of things: The number of drinks, the person’s weight, and the number of hours that have passed while the person was consuming alcohol. I have a little breath alcohol calculator that I use, so if you give me sample weights, hours and number of drinks, we can estimate this for you.

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A judge should order that all of the documentations on that machine be turned over if you file all of the correct documentation. I have had several cases where the machine was not calibrated correctly, or something was not done with that machine that should have been, and the breath results turned out that way, so you need to at least always review it very carefully, and then if there is an issue, you definitely need to challenge it.

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I had a DWI case one time where my client blew a 0.15, 0.16. In New Mexico they should always take two samples from the person. When the client comes to you like that, you tell them “This is going to be an uphill battle,” and my client said, “I just didn’t have that much to drink. I don’t know where this number is coming from”. We worked the case and worked the case, and going through the machine that was used to take the sample. They use  machines called Intoxilyzer 8000’s to take breath samples, and then those machines have to be calibrated and checked by the lab to ensure the machine is running correctly, and in that case it showed that it was.

Another thing that needs to be done before you run a sample is make sure that nothing has been in the driver’s mouth because something in the mouth can cause the machine to read higher than it should, and it turned out my client in that case chewed tobacco. He used the little pouches they sell of tobacco, and he had that in his mouth when he was blowing into the machine. We thought that alcohol was trapped in that little tobacco pouch like a sponge. When he blew through his mouth, the air in his mouth is moving over that tobacco, and it’s registering a much higher blood alcohol level content than was correct for the client, and the jury acquitted him. So, his record is clean.

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Yes. Many criminal cases are strong against the accused. Not only can a lawyer help with the cases: We help try the case to a successful verdict, help with oppression issues, but they can help negotiate a deal that mitigates the harm against you, even in a case that is pretty strong against the accused.

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No, not without a warrant. If you are arrested they can search your car before they tow it. Saying something was in the car when it wasn’t is just to protect officers from liability. Seeing evidence of a crime, even if they saw marijuana in the back of your car, or something that was clearly evidence of a crime, they would still need a warrant under New Mexico law.

And the only exception is if they see something dangerous or that looks like a shotgun or a grenade. In a situation like that for the safety of the officer and public safety reasons, they don’t need to get a warrant. But, that still doesn’t mean you need consent. If they think they have urgent circumstances, they’re just going to have to act, but at least you can argue about it later in court about whether it was urgent or not, rather than if you consent, you’ve lost all your issues.

As far as not consenting, people think that if they consent and they are cooperative, the prosecutor or officer will go light on them. But, the opposite is true: Prosecutors go harder on cases that are easy for them to win, and they get better deals on cases that are harder for them to win. If you confess, if you make statements and you let them search your car, you’ve made it an easy case for them to win, and they are not going to reward you.

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“Plain sight” is an exception to the warrant requirement. In New Mexico, even if something is in plain sight, if it is not dangerous, officers still have to go get a warrant, but they can seize the car temporarily while they go get a warrant, and then retrieve the item in plain sight. But, I would still not consent to let the officer search your car.

When officers get a warrant, sometimes there are problems with the process. They may have  said something that was incorrect, or they misrepresented information. It may be that they left things out they should have kept in, and you can challenge that warrant later on in court. But, if you consent to let the officer search your car, there is nothing to challenge later if you allowed it to happen, because you provided them what they needed without a warrant.

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You should always decline to allow officers to search your car. If an officer is asking to search your car, even if you don’t have anything in your car, or you think you don’t have anything in your car, it’s a huge inconvenience. The officer can really tear your car apart if you consent to a search and not fix it. There have been cases where officers have planted things inside of cars or in homes during searches, so I always decline, and I think people should always say no.

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I tell people that if they have had nothing to drink, or very, very little, then they should consent to the test. However, if that is not the case, a driver has the right to decline to do the Standard Field Sobriety Test and has the right to decline to give a blood or breath test, and I recommend that they do both and just ask for a lawyer.

When a person does consent to give a test, I always say they should ask for a secondary test as well, which you have the right to do under New Mexico law.  If they pull you over, you can say, “No, I’m not going to consent to the Field Sobriety Test.” You can decline to do the test, decline to give a breath sample, and I think almost everybody should decline both unless they have truly not had anything to drink, or very little.

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