The New Mexico DWI Guide

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DWI Charges

 NMS 66-8-102 (2011)

Implied Consent

Administrative Revocation

MVD

 

 

I just got arrested for a State of New Mexico DWI charge.  What happens next?

 

ISSUE ONE:  The New Mexico Implied Consent / Administrative Revocation Proceeding:  Under New Mexico law, any person who operates a motor vehicle within the State of New Mexico shall be deemed to have given consent to chemical tests of his breath or blood or both as determined by a law enforcement officer, 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.   This is known as New Mexico’s implied consent law.

 

Pursuant to New Mexico's implied consent law, your New Mexico drivers license (or your right to drive in the State of New Mexico if you're not a New Mexico licensed driver) was most likely revoked for anywhere from six months to one year for failing or refusing a breath or blood test.  This revocation typically starts on the 20th day following your arrest. 

 

Read your paperwork carefully.  If you act within 10 days, you can request a hearing to challenge your proposed revocation.  There is a $25 fee due with the hearing request.  Following a timely request, an MVD hearing will be held within 90 days.  Speak to your New Mexico DWI attorney for more information about contesting your administrative (implied consent) license revocation.

 

 

ISSUE TWO:  The New Mexico DWI / Aggravated DWI Criminal Case:  Separate from the administrative license proceeding is the criminal charge for DWI or Aggravated DWI.  Under New Mexico law, it is unlawful for a person who:

  • is under the influence of intoxicating liquor to drive a vehicle in the State of New Mexico;

  • is under the influence of any drug to a degree that renders him incapable of safely driving a vehicle to drive a vehicle within the State of New Mexico; or

  • has an alcohol concentration (BAC) of 0.08 percent or more (0.04 % or more if driving a commercial motor vehicle) in his blood or breath to drive a vehicle within the State of New Mexico.  This is sometimes known as a per se DWI.

The crime of aggravated driving while under the influence of intoxicating liquor or drugs occurs when a person:

  • has a BAC of 0.16 percent or more in his blood or breath while driving a vehicle in the State of New Mexico;

  • causes bodily injury to a human being as a result of the unlawful operation of a motor vehicle while driving under the influence of intoxicating liquor or drugs; or

  • refuses to submit to chemical (breath, blood, urine) testing, as provided for New Mexico implied consent law, and in the judgment of the court was under the influence of intoxicating liquor or drugs.

Important:  The implied consent / administrative license revocation proceeding and the criminal DWI / Aggravated DWI case are completely separate from one another. 

 

Will my New Mexico driver license be suspended or revoked?

 

RELATED TO ISSUE ONE ABOVE:  Your New Mexico driver license (or your right to drive in New Mexico if you do not have a valid New Mexico license) may be revoked in the implied consent proceeding for failing or refusing a chemical test for alcohol and / or drugs.  The revocations periods are outlined below:

 

IMPLIED CONSENT / ADMINISTRATIVE LICENSE REVOCATION PERIOD
(FOR PERSONS 21 AND OVER)
Implied Consent Action 1st Offense 2nd or
Greater Offense
Test Refusal One Year One Year
Test Failure Six Months One Year

 

Again, you may challenge this proposed suspension / revocation in an administrative hearing this revocation if you make a timely hearing request.

RELATED TO ISSUE TWO ABOVE:  If you are convicted of the New Mexico DWI  charge, your New Mexico license (or your right to drive in New Mexico if you don't have a valid license) will be revoked for one year or more depending on your DUI / DWI history.  See the Penalty Chart below for more information on revocation lengths.

 

What happens if I get caught driving while my license is revoked?

 

Driving while your New Mexico license or driving privileges are suspended or revoked is a misdemeanor crime.  Upon conviction, you face a jail sentence of not less than four days or participation for an equivalent period of time in a certified alternative sentencing program, and there may be imposed in addition a fine of not more than $1,000. 

 

However, if your privilege to drive was revoked for a DWI conviction or for a violation New Mexico implied consent law, you will be sentenced to not less than seven consecutive days jail and shall be fined not less than three hundred dollars ($300) or not more than one thousand dollars ($1,000) and the fine and imprisonment shall not be suspended, deferred or taken under advisement.  No other disposition by plea of guilty to any other charge in satisfaction of a charge under this section shall be authorized if your privilege to drive was revoked for a DWI conviction or pursuant to implied consent law. 

 

Conviction of driving while your license is suspended or revoked also may result in vehicle immobilization for 30 days.  You also face an additional period of suspension or revocation.

 

I really need to drive.  Will I be able to get a limited license / ignition interlock license / restricted license / work permit / occupational / conditional / probationary driving permit?

 

An Ignition Interlock License is available to anyone whose license has been revoked for pursuant to New Mexico implied consent law; an Ignition Interlock License is required for anyone whose license is revoked for a DWI conviction.  As the name implies, the IID license requires that you have an approved ignition interlock device installed in any vehicle you drive.  To find out if you qualify for an Ignition Interlock License, call the MVD at 1-888-683-4636.

What is the difference between a DUI, DWI, OWI, OUI etc.?

 

These terms are all acronyms that refer to the crime commonly known as "drunk driving."  Different states have different names for the crime.  For example, Oregon uses the words "driving under the influence of an intoxicant" or DUII.  In Arizona and California the term DUI (driving under the influence) is most commonly used. 

 

In New Mexico, the acronym most commonly used is DWI (driving while intoxicated).  The terms DUI and DWI are used interchangeably in this website.

 

Is a DWI offense in New Mexico a misdemeanor or felony charge?

In New Mexico, a first DWI, a second DWI,  and a third DWI are misdemeanor offenses.  A fourth or subsequent DWI is a felony offense 

What type of penalties might I face if I am convicted of an New Mexico DWI / Aggravated DWI charge?

 

Upon conviction of an New Mexico drunk driving offense, a defendant can receive a variety of penalties including alcohol screening, DWI school; community service, and an ignition interlock license.  A range of penalties is set forth below: 

 


NEW MEXICO DWI PENALTY CHART

DWI / AGGRAVATED DWI CONVICTION TYPICAL SENTENCING PENALTIES

FIRST OFFENSE
DWI 1
misdemeanor offense

  • several hundred dollars in fines and fees;
  • at least 48 hours jail for an Aggravated DWI;
  • 24 hours of community service;
  • one year license revocation;
  • Ignition interlock device (IID) for one year.

SECOND OFFENSE
DWI 2
misdemeanor offense

  • several hundred dollars in fines and fees;
  • at least four days jail for DWI (eight days jail for an Aggravated DWI conviction);
  • 48 hours of community service;
  • two year license revocation;
  • IID for two years.

THIRD OFFENSE
DWI 3
misdemeanor offense

  • several hundred dollars in fines and fees;
  • at least 30 days jail for DWI (90 days for an Aggravated DWI conviction);
  • 96 hours of community service;
  • three year license revocation;
  • IID for three years.

FOURTH OFFENSE
DWI 4
4th degree felony offense
  • substantial fines and fees;
  • at least six months incarceration;
  • lifetime license revocation (See Note 1).
Note 1:  Following a lifetime revocation, you may apply to the district court for reinstatement after five years so long as you do not receive a subsequent DWI.  If granted reinstatement, an ignition interlock device is required for life.

Note 2:  A fifth DWI conviction requires at least 12 months incarceration; a sixth DWI, at least 18 months; a seventh DWI, 24 months.

Note 3:  You may face a felony charge of child abuse if you have a child in the car with you at the time of your DWI offense.  This charge can result in substantial penalties.

Will my defense lawyer be able to plea bargain / negotiate my New Mexico DWI charge down to another (lesser) offense?

It depends.  New Mexico has an anti-plea bargaining statute that prohibits "reducing" a DWI charge to a non-alcohol related offense if your BAC shows 0.08% or greater.  However, under some circumstances a second DWI offense may be treated as a first conviction or a third offense treated as a second.

Will a New Mexico DWI conviction go on "my driving record?"

Yes.  A NM DWI conviction will go on your New Mexico driving record and remain there for 55 years.

Just how much jail / prison time will I have to do if I am convicted of a DUI in New Mexico?

The amount of jail time received will depend on a number of different factors, including (but not limited to) the following:

•  your prior driving record especially your DWI history (including any DUI's / DWI's outside of New Mexico);

•  your level of intoxication / blood alcohol content (a BAC of 0.16% or greater for example);

•  whether there was an accident / collision involved;

•  whether there was injury (especially serious injury) to another person;

•  which New Mexico county or court your case is in;

•  which judge sentences you;

•  whether there was a passenger especially a child passenger in your car.

 

I am licensed to drive in a state other than New Mexico and I was cited for a DWI in New Mexico.  Will my driver license be revoked?

New Mexico only has the authority to revoke your right to drive in the State of New Mexico.  However, New Mexico and 44 other states and Washington D.C. have adopted an agreement known as the "Interstate Driver License Compact."  New Mexico will report a DWI / Aggravated DWI conviction to the home state of the driver (assuming the home state has also adopted the Compact).  Your home state will then generally take action to suspend or revoke your drivers license.

This also works in reverse.  If you are a New Mexico licensed driver and you are convicted of a DWI / OVI / OWI / DUI in another state, New Mexico will revoke your license if it learns of your conviction. 

Will I have to install an Ignition Interlock Device on my car?

 

An ignition interlock device (IID) is a breath alcohol measurement device that is connected to a motor vehicle ignition system.  In order to start the vehicle, a driver must blow a breath sample into the IID which then measures alcohol concentration.  If the sample exceeds a set limit (0.025%), the vehicle will not start.  Retests are also required periodically while driving.

If you're convicted of a NM DWI you will have to install an ignition interlock device for at least one year as part of your ignition interlock license.  Additionally, you may apply for an ignition interlock license if you're revoked pursuant to implied consent law.  Speak to your New Mexico DWI lawyer for more information.

What will a New Mexico DWI do to my ability to maintain my liability insurance?

If your insurance company finds out about your DWI conviction one of two things are likely to happen.  Either your New Mexico insurance company will raise your insurance rates or your policy may be cancelled or not renewed.

What is an SR-22 Filing / Proof of Liability Insurance?

An SR-22 is a certificate of proof of financial responsibility (liability insurance) submitted by a licensed insurance company.  Most states require an SR-22 filing following a DWI / DUI conviction; however, New Mexico does not have this requirement.  However, proof of liability insurance is required. 

Proof of financial responsibility consists of:

a. A vehicle liability insurance policy or insurance certification; or
b. An insurance binder; or
c. A State Treasurer’s Certificate of Deposit; or a Surety Bond Certificate issued by the Motor Vehicle Division, Mandatory Insurance Section.

Are there special concerns for licensed pilots who get an New Mexico DUI?

 

Yes.  The FAA has special reporting requirements for certain Motor Vehicle Actions including New Mexico DWI and Aggravated DWI convictions and implied consent license revocations.  Learn more about the FAA reporting requirement here.

I missed my DWI criminal court appearance.  What do I do now?

Failing to appear (FTA) for court is to be avoided.  When you miss a New Mexico court appearance, bad things happen.  At a minimum, the New Mexico court typically issues a summons or warrant for your arrest (sometimes known as a bench warrant).  You may also be charged with a separate criminal offense.  Talk to a lawyer as soon as possible.  Sometimes, your only option is to turn yourself in on the outstanding warrant.  A new court date will then be scheduled.

Can I represent myself in court on my New Mexico DWI or other criminal charge(s)?

Yes.  You have an absolute right to represent yourself on any criminal charge no matter how serious including a New Mexico DWI charge.  Keep in mind that New Mexico DWI defense is a complex legal area as shown by the information in this website.  If you cannot afford to hire your own DWI lawyer, you definitely should apply for court appointed counsel.  You have no right to court appointed counsel at any implied consent license revocation proceeding.

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Websites, including this one, provide general New Mexico DWI / DUI information but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice about your case, criminal charge, or situation.  Consult qualified New Mexico Drunk Driving attorneys for advice about any specific problem or New Mexico drunk driving charge that you have.  New Mexico attorneys are governed by the New Mexico Rules of Professional Conduct.  This website may be considered an advertisement for services under these Rules.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  No attorney associated with this website is specialized or certified in any way. FAQ's.

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