New Mexico DUI: Refusal to Take a Blood, Breath or Urine Test

In New Mexico, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood or breath test, do you have to take one? What happens if you refuse?

Implied Consent

New Mexico law requires you to take a blood or breath test if you are arrested for a DUI. New Mexico’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood or breath for the purpose of determining your blood alcohol content (BAC). The officer gets to choose which test you take and the test must be taken within three hours of when you were last driving.

You can read New Mexico’s implied consent law in the New Mexico Statutes Annotated 66-8-107.

Refusing to Take the Test

1st Offense

2d Offense

3rd Offense

Refusal to take test

1 year license revocation

1 year license revocation

1 year license revocation

Once you are arrested, the officer should tell you that if you decide to take a test, then you have the right to have additional tests taken by a medical professional of your choice and the state will pay for it. The officer must also give you your test results and any other available information about the test, if you ask for it. Additionally, the officer must tell you that your license will be suspended for one year for refusing to take the test.

If you choose to refuse the test, then the officer will take your license right then. In its place, he or she will give you a temporary permit that is good for twenty days. The officer will also give you written notice of your suspension, which should include information on how to request a hearing to challenge your suspension. Your temporary permit could be extended if you request a hearing and it is not set within these first twenty days.

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, if the incident that caused you to be arrested also caused injury or death to yourself or another person, then an officer can get a warrant that will order you to take a test. If, by the way, the person who was injured was a pregnant woman, then not only will you have to take a test by warrant, but also the consequence for her injury is particularly heavy – it counts as a third degree felony, which is punishable by three years in prison. Also, the state may administer the test if you are unconscious or dead, even if you haven’t yet been arrested.

The penalties for refusing to submit to a chemical test are found in the New Mexico Revised Statutes 66-8-111.

Should You Refuse to Take a Mandatory DUI Test in New Mexico?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in New Mexico, you face up to 90 days in jail, or a fine up to $500, or both. Your license will be suspended for at least six months too, and you would need to complete a safety course and community service before you could get it back. These consequences are more severe than those for refusing a chemical test. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in New Mexico or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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