DUI/DWI Criminal Defense
Being charged with driving under the influence of alcohol or drugs is a serious matter. The penalties if convicted can include, fines, court ordered programs, probation, limitations on driving privileges, and even jail or prison time.
“Margaret was the criminal defense lawyer for my brother. She was always available and she believed in my brother. Margaret treated my brother with dignity and respect. Margaret’s professionalism, knowledge and compassion is second to none. I would recommend her to anyone needing a good lawyer.”
—Dave, New Mexico»Read more testimonials
Your Rights During Investigation
When you are stopped by law enforcement you have rights, which include:
- The right to decline to answer an officer’s questions about drinking or drug use.
- The right to decline to perform field sobriety tests and/or tests by a drug recognition expert (DRE).
- The right to decline to give a blood or breath test (except in the rare instances where the police have obtained a warrant).
If you choose to give a blood or breath sample, you have the right to a reasonable opportunity to arrange an additional test with an appropriate medical professional of your choosing. Law enforcement must pay for that testing.
In most cases when you are arrested the officer will file the paperwork necessary to revoke your driver’s license. Therefore when you have been arrested the FIRST thing you need to do is request a hearing on your license revocation. You must request this hearing within 10 days, otherwise your license will be suspended AUTOMATICALLY. You have the right to have an attorney represent you at the hearing and any appeals. An attorney can also help you with the hearing request.
This license revocation process is totally separate from the criminal case. Do not depend on the criminal case process to assist with your license revocation.
- Read more about Driver’s License Revocation or Suspension
- How does a DUI charge affect your insurance?
Your Rights Once Charged
When you are charged with driving under the influence, you have the rights of a criminal defendant.
- You have the right to a trial.
- You have the right to be presumed innocent.
- You have the right to be found not guilty unless the prosecution proves your guilt beyond a reasonable doubt.
- You have the right to confront the witnesses against you.
- You have the right to bring any relevant witnesses or evidence to the trial.
- You have the right to testify or decline to testify at the trial.
- You have the right to an attorney.
Important Early Deadlines
Within 10 days of arrest submit a written request for a hearing on your driver’s license.
Within 10 days of arraignment request trial by jury (only necessary in some cases).
Within 10 days of arraignment make decision on judge excusal.
The New Mexico Implied Consent Act
In New Mexico, under the law of the Implied Consent Act, every person driving a vehicle within the state of New Mexico is deemed to have given his or her consent to a breath and/or blood alcohol concentration test if arrested for DWI / DUI.
The New Mexico Motor Vehicle Code states:
“Any person who operates a motor vehicle within this state shall be deemed to have given consent… to chemical tests of his breath or blood or …for the purpose of determining the drug or alcohol content of his blood if arrested for any offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while under the influence of an intoxicating liquor or drug.”
However, a person has the right to, when asked for a breath or blood sample, withdraw that consent and refuse testing.
When a person refuses testing, he or she may face slightly increased criminal penalties and an increased period of suspension of his or her driver’s license.
On the other hand, when a person refuses testing, it can make the case much more difficult for the prosecution to prove.
When a breath or blood sample is given, any sample proven to be .08 or over will result in conviction.
When a person refuses to give a blood or breath sample, during trial the prosecutor must only prove that the driver was “impaired to the slightest degree” by alcohol or drugs.
In short, deciding whether or not to give a breath sample is a serious choice with lasting consequences. Many attorneys commonly advise that a suspect who has in fact been drinking more than a very small amount alcohol politely decline to give a breath sample.
A person, unfortunately, does not have the right to a criminal defense attorney at this stage of the investigation. However, if they do choose to give a sample they have the right to request a second and independent test. A person giving a sample should ALWAYS request a second independent test.
|DUI /DWI Penalties in New Mexico|
|4th Offense||FELONY 4th DEGREE||
|5th Offense||FELONY 4th DEGREE||
|6th Offense||FELONY 3rd DEGREE||
|7th or Subsequent Offense||FELONY 3rd DEGREE||
|Additional Penalties for Aggravated DUI /DWI|
|Aggravated DWI||.16 BAC or above, refusal to take BAC test,or cause bodily injury while DWI||
Learn more about the McGraw Strickland Law Office.