2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Section 66-8-102 - Driving under the influence of intoxicating liquor or drugs; aggravated driving under the influence of intoxicating liquor or drugs; penalties.

Universal Citation: NM Stat § 66-8-102 (2018)
66-8-102. Driving under the influence of intoxicating liquor or drugs; aggravated driving under the influence of intoxicating liquor or drugs; penalties.

A. It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.

B. It is unlawful for a person who is under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle to drive a vehicle within this state.

C. It is unlawful for:

(1) a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle; or

(2) a person to drive a commercial motor vehicle in this state if the person has an alcohol concentration of four one hundredths or more in the person's blood or breath within three hours of driving the commercial motor vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.

D. Aggravated driving under the influence of intoxicating liquor or drugs consists of:

(1) driving a vehicle in this state with an alcohol concentration of sixteen one hundredths or more in the driver's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle;

(2) causing 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

(3) refusing to submit to chemical testing, as provided for in the Implied Consent Act [66-8-105 through 66-8-112 NMSA 1978], and in the judgment of the court, based upon evidence of intoxication presented to the court, the driver was under the influence of intoxicating liquor or drugs.

E. A first conviction pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than ninety days or by a fine of not more than five hundred dollars ($500), or both; provided that if the sentence is suspended in whole or in part or deferred, the period of probation may extend beyond ninety days but shall not exceed one year. Upon a first conviction pursuant to this section, an offender shall be sentenced to not less than twenty-four hours of community service. In addition, the offender may be required to pay a fine of three hundred dollars ($300). The offender shall be ordered by the court to participate in and complete a screening program described in Subsection L of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a "DWI school", approved by the bureau and also may be required to participate in other rehabilitative services as the court shall determine to be necessary. In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than forty-eight consecutive hours in jail. If an offender fails to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or fails to comply with any other condition of probation, the offender shall be sentenced to not less than an additional forty-eight consecutive hours in jail. Any jail sentence imposed pursuant to this subsection for failure to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or for aggravated driving under the influence of intoxicating liquor or drugs shall not be suspended, deferred or taken under advisement. On a first conviction pursuant to this section, any time spent in jail for the offense prior to the conviction for that offense shall be credited to any term of imprisonment fixed by the court. A deferred sentence pursuant to this subsection shall be considered a first conviction for the purpose of determining subsequent convictions.

F. A second or third conviction pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($1,000), or both; provided that if the sentence is suspended in whole or in part, the period of probation may extend beyond one year but shall not exceed five years. Notwithstanding any provision of law to the contrary for suspension or deferment of execution of a sentence:

(1) upon a second conviction, an offender shall be sentenced to a jail term of not less than ninety-six consecutive hours, not less than forty-eight hours of community service and a fine of five hundred dollars ($500). In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than ninety-six consecutive hours. If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional seven consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement; and

(2) upon a third conviction, an offender shall be sentenced to a jail term of not less than thirty consecutive days, not less than ninety-six hours of community service and a fine of seven hundred fifty dollars ($750). In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than sixty consecutive days. If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional sixty consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement.

G. Upon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of eighteen months, six months of which shall not be suspended, deferred or taken under advisement.

H. Upon a fifth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of two years, one year of which shall not be suspended, deferred or taken under advisement.

I. Upon a sixth conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of thirty months, eighteen months of which shall not be suspended, deferred or taken under advisement.

J. Upon a seventh conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of three years, two years of which shall not be suspended, deferred or taken under advisement.

K. Upon an eighth or subsequent conviction pursuant to this section, an offender is guilty of a second degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of twelve years, ten years of which shall not be suspended, deferred or taken under advisement.

L. Upon any conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court, an alcohol or drug abuse screening program approved by the department of finance and administration and, if necessary, a treatment program approved by the court. The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.

M. Upon a second or third conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court:

(1) not less than a twenty-eight-day inpatient, residential or in-custody substance abuse treatment program approved by the court;

(2) not less than a ninety-day outpatient treatment program approved by the court;

(3) a drug court program approved by the court; or

(4) any other substance abuse treatment program approved by the court.

The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement.

N. Upon a felony conviction pursuant to this section, the corrections department shall provide substance abuse counseling and treatment to the offender in its custody. While the offender is on probation or parole under its supervision, the corrections department shall also provide substance abuse counseling and treatment to the offender or shall require the offender to obtain substance abuse counseling and treatment.

O. Upon a conviction pursuant to this section, an offender shall be required to obtain an ignition interlock license and have an ignition interlock device installed and operating on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. Unless determined by the bureau to be indigent, the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. The offender shall operate only those vehicles equipped with ignition interlock devices for:

(1) a period of one year, for a first offender;

(2) a period of two years, for a second conviction pursuant to this section;

(3) a period of three years, for a third conviction pursuant to this section; or

(4) the remainder of the offender's life, for a fourth or subsequent conviction pursuant to this section.

P. Five years from the date of conviction and every five years thereafter, a fourth or subsequent offender may apply to a district court for removal of the ignition interlock device requirement provided in this section and for restoration of a driver's license. A district court may, for good cause shown, remove the ignition interlock device requirement and order restoration of the license; provided that the offender has not been subsequently convicted of driving a motor vehicle under the influence of intoxicating liquor or drugs. Good cause may include an alcohol screening and proof from the interlock vendor that the person has not had violations of the interlock device.

Q. An offender who obtains an ignition interlock license and installs an ignition interlock device prior to conviction shall be given credit at sentencing for the time period the ignition interlock device has been in use.

R. In the case of a first, second or third offense under this section, the magistrate court has concurrent jurisdiction with district courts to try the offender.

S. A conviction pursuant to a municipal or county ordinance in New Mexico or a law of any other jurisdiction, territory or possession of the United States or of a tribe, when that ordinance or law is equivalent to New Mexico law for driving under the influence of intoxicating liquor or drugs, and prescribes penalties for driving under the influence of intoxicating liquor or drugs, shall be deemed to be a conviction pursuant to this section for purposes of determining whether a conviction is a second or subsequent conviction.

T. In addition to any other fine or fee that may be imposed pursuant to the conviction or other disposition of the offense under this section, the court may order the offender to pay the costs of any court-ordered screening and treatment programs.

U. With respect to this section and notwithstanding any provision of law to the contrary, if an offender's sentence was suspended or deferred in whole or in part and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation.

V. As used in this section:

(1) "bodily injury" means an injury to a person that is not likely to cause death or great bodily harm to the person, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the person's body; and

(2) "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

(a) has a gross combination weight rating of more than twenty-six thousand pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds;

(b) has a gross vehicle weight rating of more than twenty-six thousand pounds;

(c) is designed to transport sixteen or more passengers, including the driver; or

(d) is of any size and is used in the transportation of hazardous materials, which requires the motor vehicle to be placarded under applicable law.

History: 1941 Comp., § 68-2317, enacted by Laws 1953, ch. 139, § 54; 1953 Comp., § 64-22-2; Laws 1955, ch. 184, § 8; 1965, ch. 251, § 1; 1969, ch. 210, § 2; recompiled as 1953 Comp., § 64-8-102, by Laws 1978, ch. 35, § 510; 1979, ch. 71, § 7; 1981, ch. 370, § 2; 1982, ch. 102, § 1; 1983, ch. 76, § 2; 1985, ch. 178, § 2; 1987, ch. 97, § 3; 1988, ch. 56, § 8; 1993, ch. 66, § 7; 1997, ch. 43, § 1; 1997, ch. 205, § 1; 1999, ch. 61, § 1; 2002, ch. 82, § 1; 2003, ch. 51, § 10; 2003, ch. 90, § 3; 2003, ch. 164, § 10; 2004, ch. 42, § 1; 2005, ch. 241, § 5; 2005, ch. 269, § 5; 2007, ch. 321, § 10; 2007, ch. 322, § 1; 2008, ch. 72, § 3; 2010, ch. 29, § 1; 2016, ch. 16, § 2.

ANNOTATIONS

Cross references. — For mandatory revocation of driver's license by the division, see 66-5-29 NMSA 1978.

For Ignition Interlock Licensing Act, see 66-5-501 NMSA 1978.

For violation being a felony if homicide committed, see 66-8-101 NMSA 1978.

For funding of local government corrections fund by penalty assessment fees, see 66-8-116 NMSA 1978 and 66-8-119 NMSA 1978.

For immediate appearance before magistrate for violation, see 66-8-122 NMSA 1978.

For the prohibition of operation of a motor vehicle while possessing liquor, see 66-8-138 to 66-8-140 NMSA 1978.

For crime laboratory fee, see 31-12-7 NMSA 1978.

For crime laboratory fund, see 31-12-9 NMSA 1978.

For court automation fund, see 34-9-10 NMSA 1978.

For the criminal jurisdiction of magistrate courts, see 35-3-4 NMSA 1978.

For court automation fee, see 35-6-1 NMSA 1978, 66-8-116.3 NMSA 1978, and 66-8-119 NMSA 1978.

For uniform jury instructions to be used with 66-8-102 NMSA 1978, see UJI 14-4501 to 14-4503 NMRA.

The 2016 amendment, effective July 1, 2016, increased penalties and mandatory periods of incarceration for eighth or subsequent offenses, and provided that an eighth or subsequent offense is a second degree felony; in Subsection E, in the fourth sentence, after "Subsection", deleted "K" and added "L"; in Subsection J, after "seventh", deleted "or subsequent"; added a new Subsection K and redesignated the succeeding subsections accordingly; and in Subsection O, after "rules adopted by the", deleted "traffic safety".

The 2010 amendment, effective July 1, 2010, in the catchline, deleted "Persons" and added "Driving"; after "aggravated driving", deleted "while"; and changed "penalty" to "penalties"; in Subsection D, in the introductory sentence, after "Aggravated driving", deleted "while" and after "drugs consists of", deleted "a person who"; in Subsection D(1), at the beginning of the sentence, changed "drives" to "driving"; after "in this state", deleted "and has an" and added "with an"; and after "or more in the", deleted "person's" and added "driver's"; in Subsection D(2), at the beginning of the sentence, deleted "has caused" and added "causing"; in Subsection D(3), at the beginning of the sentence, deleted "refused" and added "refusing", and after "presented to the court,", added "the driver"; in Subsection E, in the first sentence, deleted "person under"; in the fifth sentence, after "aggravated driving", deleted "while"; and in the seventh sentence, after "aggravated driving", deleted "while"; in Subsection N, in the first sentence, after "rules adopted by the", added "traffic safety", and in the second sentence, after "determined by the", deleted "sentencing court" and added "bureau"; added Subsection P; relettered succeeding subsections; and in Subsection R, after "law for driving", deleted "while" and after "penalties for driving", deleted "while".

The 2008 amendment, effective May 14, 2008, deleted former Paragraph (3) of Subsection T which defined "conviction" to mean an adjudication of guilt, but not including the imposition of a sentence.

The 2007 amendment, effective April 2, 2007, amended Subsection C to provide for chemical tests within three hours after driving a vehicle for the administration of a chemical test to determine alcohol concentration.

Laws 2007, ch. 321, § 10 and Laws 2007, ch. 322, § 1 both enacted amendments to 66-8-102 NMSA 1978. The section was set out as amended by Laws 2007, ch. 322, § 1. See 12-1-8 NMSA 1978.

The 2005 amendment, effective June 17, 2005, provided in Subsection E that upon a first conviction, an offender shall be sentenced to not less than twenty-four hours of community service and that in addition, the offender may be required to pay the specified fine; deleted the former provision in Subsection E that if an offender's sentence was suspended or deferred and the offender violates any condition of probation, the court may impose any sentence that it could have originally imposed and credit shall not be given for time served on probation; provided in Subsection F(2) that the sentence shall include not less that ninety-six hours of community service and that if an offender fails to complete any community service, the offender shall receive the specified minimum sentence; deleted former Subsection N, which provided that for a first conviction of aggravated driving while under the influence, the offender shall be required as a condition of probation to have an ignition interlock device installed for one year; deleted former Subsection O, which provided that for a first offense of driving while under the influence, the offender may be required as a condition of probation to have an ignition interlock device installed for one year; deleted former Subsection P, which provided that upon a subsequent conviction, as a condition of probation, the offender shall be required as a condition of probation to have an ignition interlock device installed for one year; added Subsection N to provide the periods of time for which an offender shall be required to have an ignition interlock device installed; added Subsection O to provide that a fourth and subsequent offender may apply to the district court for removal of the ignition interlock device requirement five years after conviction and the conditions under which a district court may remove the requirement; and added Subsection S to provide that if an offender violates any condition of probation, the court may impose any sentence the court could originally have imposed and credit shall not be given for time on probation.

Laws 2005, ch. 241, § 5 and Laws 2005, ch. 269, § 5 enacted almost identical amendments to 66-8-102 NMSA 1978. The section was set out as amended by Laws 2005, ch. 269, § 5. See 12-1-8 NMSA 1978.

The 2004 amendment, effective March 2, 2004, added Paragraph (2) of Subsection C making it unlawful for "a person who has an alcohol concentration of four one hundredths or more in his blood or breath to drive a commercial motor vehicle within this state", amended Subsection E to add to the grounds for a 48-hour imprisonment a failure to comply with any condition of probation and to add "Notwithstanding any provision of law to the contrary, if an offender's sentence was suspended or deferred in whole or in part, and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation", amended Subsection G to limit the subsection to a fourth conviction and to change the jail term from not less than six months to eighteen months, six months of which shall not be suspended, deferred or taken under advisement, added new Subsections H, I, J, L and M, redesignated former Subsection H as Subsection K and provided for the approval of the department of finance and administration for the drug screening program, redesignated former Subsections I through O as Subsections N through T and amended redesignated Subsection T by adding a new Paragraph (2) defining "commercial motor vehicle".

The 2003 amendment, effective July 1, 2003, substituted "A person" for "Every person" at the beginning of Subsection E; and substituted "or of a tribe, where that ordinance or law" for "that" following "the United States" in Subsection M.

Section 66-8-102 NMSA 1978 was amended by Laws 2003, ch. 51, § 10, Laws 2003, ch. 90, § 3 and Laws 2003, ch. 164, § 10. The was set out as amended by Laws 2003, ch. 164, § 10. See Section 12-1-8 NMSA 1978.

The 2002 amendment, effective January 1, 2003, rewrote Subsection I to require the installation of an ignition interlock device for first-time offenders; added Subsections J and K; and redesignated former Subsections J to M as present Subsections L to O.

The 1999 amendment, effective June 18, 1999, added Subsection I, redesignated former Subsections I through L as Subsections J through M, and made minor stylistic changes.

The 1997 amendment, effective June 20, 1997, inserted "to participate in and complete a screening program described in Subsection H of this section and" near the beginning of the third sentence in Subsection E; added the last sentence of Subsection H; inserted the language beginning "in New Mexico" and ending "liquor or drugs" in Subsection J; and made a minor stylistic change in Paragraph D(3).

Duplicate amendments.Laws 1997, ch. 43, § 1 and Laws 1997, ch. 205, § 1 enacted identical amendments to this section. The section was set out as amended by Laws 1997, ch. 205, § 1. See 12-1-8 NMSA 1978.

The 1993 amendment, effective January 1, 1994, rewrote this section.

The 1988 amendment, effective July 1, 1988, redesignated part of Subsection E as present Subsection E(1) and added present Subsection E(2); substituted "third conviction" for "subsequent conviction" in present Subsection E(1); added Subsections H, I and J; and made minor stylistic changes.

The 1987 amendment, effective April 7, 1987, in Subsection D inserted "notwithstanding the provisions of Section 31-18-13 NMSA 1978" following "shall be punished" in the first sentence; in Subsection E inserted "notwithstanding the provisions of Section 31-18-13 NMSA 1987"; and made a minor change in language in Subsection D.

I. GENERAL CONSIDERATION.

Sixth amendment right to a jury trial was not violated. — Where defendant was convicted by a jury in magistrate court of aggravated DWI, first offense, which carried a maximum sentence of incarceration of ninety days; defendant appealed to district court and filed a demand for a jury trial; the district court denied defendant's request for a jury trial; and at a bench trial, the district court found defendant guilty of DWI, the district court did not violate defendant's right to a jury trial under the sixth amendment of the United States Constitution or Article II, Section 12 of the New Mexico Constitution because the maximum period of imprisonment was less than six months and defendant could not overcome the presumption that the offense of DWI, first offense, was not a serious offense for purposes of the sixth amendment right to a jury trial. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006.

Requiring interlock devices for driving while under the influence of drugs. — Subsection N of Section 66-8-102 NMSA 1978, mandating installation of an interlock device, applies to drivers who are under the influence of either alcohol or drugs, or both. State v. Valdez, 2013-NMCA-016, 293 P.3d 909, cert. denied, 2012-NMCERT-012.

Equal protection not violated. — Subsection N of Section 66-8-102 NMSA 1978, mandating installation of an interlock device on vehicles driven by persons convicted of driving while intoxicated, does not violate the Equal Protection Clause of the United States and New Mexico constitutions as applied to DWI offenders whose impairment is not caused by alcohol, but by drugs. State v. Valdez, 2013-NMCA-016, 293 P.3d 909, cert. denied, 2012-NMCERT-012.

Where defendant pled guilty to a first time offense of driving while intoxicated; the results of blood tests showed the presence of prescription drugs, but no alcohol, in defendant's system; and the district court ordered defendant to install in defendant's vehicle an ignition interlock device, which detected only alcohol, not drugs, the district court's order did not violate equal protection. State v. Valdez, 2013-NMCA-016, 293 P.3d 909, cert. denied, 2012-NMCERT-012.

The offense of DWI (first offense) is a petty misdemeanor and is subject to a one-year statute of limitations. State v. Trevizo, 2011-NMCA-069, 150 N.M. 158, 257 P.3d 978.

Definition of vehicle. — A farm tractor with an attached mower is a "vehicle" under the DWI statute. State v. Richardson, 1992-NMCA-041, 113 N.M. 740, 832 P.2d 801, cert. denied, 113 N.M. 690, 831 P.2d 989.

Offense does not require motion of vehicle. — The offense of driving while intoxicated under this statute does not require motion of the vehicle; the offense is committed when a person under the influence drives or is in actual physical control of a motor vehicle or exercises control over or steers a vehicle being towed. Boone v. State, 1986-NMSC-100, 105 N.M. 223, 731 P.2d 366; holding limited by State v. Sims, 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642.

Vehicle on private property. — The state may charge a person with DWI pursuant to this section, despite the fact that the defendant is found on private property in actual physical control of a non-moving vehicle. State v. Johnson, 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233; holding limited by State v. Sims, 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642.

More than one act amending section. — Where three acts were enacted to amend Section 66-8-102 NMSA 1978 at the same session of the legislature, were signed by the governor on different dates, had different effective dates, and are irreconcilable, the last act signed by the governor is presumed to be the law pursuant to Section 12-1-8B NMSA 1978. State v. Smith, 2004-NMSC-032, 136 N.M. 372, 98 P.3d 1022.

Where three acts were enacted to amend Section 66-8-102 NMSA 1978 at the same session of the legislature, were signed by the governor on different dates, and had different effective dates, the language of the three enactments, in addition to their titles and purposes, indicated that the objective of the legislature was to make specific, independent improvements to the statute and permitted the three enactments to be construed harmoniously to give effect to each enactment. In the course of amending an existing law, if the legislature restates existing law to comply with N.M. Const. Art. IV, § 18, the courts are not obligated to read into that legislative act a repeal by implication of other legislation passed in the same session. State v. Smith, 2004-NMSC-032, 136 N.M. 372, 98 P.3d 1022.

Application to driving an off-road vehicle while intoxicated. — Section 66-8-102 NMSA 1978 governs the punishment of the offense of driving an off-road vehicle while intoxicated, not Section 66-3-1020 NMSA of the Off-Highway Motor Vehicle Act. State v. Natoni, 2012-NMCA-062, 280 P.3d 304, cert. denied, 2012-NMCERT-005.

Where defendant, who was driving an off-road vehicle on a public road while intoxicated, crashed into a telephone pole; a passenger in the off-road vehicle was injured in the collision; and defendant pled no contest to DWI under Section 66-3-101 NMSA 1978 of the Off-Highway Motor Vehicle Act, defendant's sentence was governed by Section 66-8-102 NMSA 1978, not by Section 66-3-1020 NMSA 1978 of the Off-Highway Motor Vehicle Act. State v. Natoni, 2012-NMCA-062, 280 P.3d 304, cert. denied, 2012-NMCERT-005.

Constitutionality of Implied Consent Act. — The Implied Consent Act is not rendered unconstitutional in the civil context just because a refusal to take a breath test under the Act may be used as an element of the criminal offense of aggravated driving while intoxicated (DWI). Marez v. State Taxation & Revenue Dep't, 1995-NMCA-030, 119 N.M. 598, 893 P.2d 494.

Constitutionality of punishment for refusing to submit to a warrantless blood draw under the Implied Consent Act. — The fourth amendment to the United States constitution does not support an enhanced criminal penalty based upon a defendant's refusal to consent to a blood test for the presence of drugs, and therefore 66-8-102(D)(3) NMSA 1978 is unconstitutional to the extent violation of it is predicated on refusal to consent to a blood draw to test for the presence of any drug in the defendant's blood. State v. Storey, 2018-NMCA-009, cert. denied.

Where defendant was charged with aggravated driving while under the influence of intoxicating drugs, and where defendant's DUI charge was aggravated based on his refusal to consent to a warrantless blood test, defendant's conviction for aggravated DUI was reversed because the fourth amendment does not support an enhanced criminal penalty based upon a defendant's refusal to consent to a blood test for the presence of drugs, and therefore a driver cannot be criminally punished for his refusal to submit to a blood test after being arrested on suspicion of driving under the influence of intoxicating liquor or drugs. State v. Storey, 2018-NMCA-009, cert. denied.

Prosecutor's comment on defendant's refusal to consent to a blood test did not violate the fourth amendment. — Where defendant was charged with aggravated driving while under the influence of intoxicating liquor or drugs after being arrested on suspicion of driving under the influence of marijuana and refusing to submit to a warrantless blood draw, the prosecutor's commentary at trial on defendant's refusal to consent to a blood test did not violate his constitutional rights under the fourth amendment, because the refusal to submit is a physical act rather than a communication, and therefore not protected as a privileged communication, and a refusal reflects consciousness of guilt that is relevant and admissible. State v. Storey, 2018-NMCA-009, cert. denied.

Standing to challenge constitutionality. — Motorist whose license was revoked for refusal to take a breath-alcohol test lacked standing to challenge the constitutionality of Subsection D(3). Marez v. State Taxation & Revenue Dep't, 1995-NMCA-030, 119 N.M. 598, 893 P.2d 494.

Due process issues. — Aggravation of defendant's DWI conviction under this section for his refusal to submit to a chemical test when he was not advised of the criminal consequences of that refusal did not violate federal or state due process provisions. State v. Kanikaynar, 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091, cert. quashed, 124 N.M. 269, 949 P.2d 283; Kanikaynar v. Sisneros, 190 F.3d 1115 (10th Cir. 1999), cert. denied, 528 U.S. 1090, 120 S. Ct. 821, 145 L. Ed. 2d 691 (2000).

Contentions of vagueness. — Provision of this section subjecting defendant who refuses to submit to chemical testing to a mandatory jail sentence upon conviction of DWI is not unconstitutionally vague. State v. Kanikaynar, 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091, cert. quashed, 124 N.M. 269, 949 P.2d 283; Kanikaynar v. Sisneros, 190 F.3d 1115 (10th Cir. 1999), cert. denied, 528 U.S. 1090, 120 S. Ct. 821, 145 L. Ed. 2d 691 (2000).

Contentions of mootness. — Generally, an appellate court will not decide a case when it cannot grant the appellant any relief, except where the conviction has continuing collateral consequences, such as mandatory sentence increases for subsequent offenses, limitations on eligibility for certain types of employment, and voting restrictions. State v. Lope, 2015-NMCA-011, cert. denied, 2014-NMCERT-010.

Where defendant appealed her DWI conviction but had already completed serving her sentence, the state's claim that the appeal was moot was in error, because although a decision would not affect defendant's sentence for this conviction, it may have continuing collateral consequences such as mandatory sentence increases for subsequent DWI convictions. State v. Lope, 2015-NMCA-011, cert. denied, 2014-NMCERT-010.

Effect of 1993 amendment. — The 1993 amendment, designating a fourth or subsequent DWI conviction as a fourth degree felony, did not alter the elements required to establish the offense of DWI and thus proof of prior convictions is not an element of felony DWI; the amendment did not change the nature of the offense, but rather increased the punishment for subsequent offenders by conferring fourth-degree felony status on fourth or subsequent DWI convictions. State v. Anaya, 1997-NMSC-010, 123 N.M. 14, 933 P.2d 223.

English-language notice regarding administrative revocation of driver's license is compatible with due process when it is personally delivered to a driver during the course of his arrest for driving under the influence. Maso v. N.M. Taxation & Revenue Dep't, 2004-NMCA-025, 135 N.M. 152, 85 P.3d 276, aff'd, 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286.

"Operating" vs. "driving" motor vehicle. The legislature has made no distinction in this section as to whether "operating a motor vehicle" means to drive or be in actual physical control of the vehicle. State v. Laney, 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Offense does not require occurrence on highway. — The prohibitive language of the statute does not require that the DWI incident actually occur on a highway. State v. Richardson, 1992-NMCA-041, 113 N.M. 740, 832 P.2d 801, cert. denied, 113 N.M. 690, 831 P.2d 989.

Parking lot of commercial restaurant. — Fact that police officer arrested defendant for driving in the parking lot of a commercial restaurant does not render the arrest or search and seizure unlawful. United States v. Aguilar, 301 F.Supp.2d 1263 (D.N.M. 2004).

"Vehicle" includes moped. — A "moped," as defined in Section 66-1-4.11F NMSA 1978 and regulated by Section 66-3-1101 NMSA 1978, is a "vehicle" for the purpose of the prohibition against driving while intoxicated under this section. State v. Saiz, 2001-NMCA-035, 130 N.M. 333, 24 P.3d 365, cert. denied, 130 N.M. 459, 26 P.3d 103.

Violation of section not conclusive proof of negligence. — A mere showing that decedent operated a motor vehicle negligently in violation of this section and 66-7-104 NMSA 1978 is not sufficient to warrant summary judgment as it does not conclusively establish that the decedent's negligence was a contributing proximate cause of the accident. Sweenhart v. Co-Con, Inc., 1981-NMCA-031, 95 N.M. 773, 626 P.2d 310, cert. denied, 95 N.M. 669, 625 P.2d 1186.

II. UNDER THE INFLUENCE.

"Under the influence" defined. — A person is under the influence of intoxicating liquor if as a result of drinking liquor the driver was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the driver and the public. State v. Sanchez, 2001-NMCA-109, 131 N.M. 355, 36 P.3d 446, cert. denied, 131 N.M. 382, 37 P.3d 99.

The impaired-to-the-slightest-degree standard of proof is the proper measure of the language "under the influence of intoxicating liquor" and gives the public fair and adequate notice of what constitutes a violation of the statute. State v. Neal, 2008-NMCA-008, 143 N.M. 341, 176 P.3d 330, cert. denied, 2008-NMCERT-001, 143 N.M. 397, 176 P.3d 1129.

Meaning of "under the influence". — This section makes a person guilty of driving while under the influence of intoxicating liquor if by virtue of having drunk intoxicating liquor he is to the slightest degree less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle as powerful and dangerous a mechanism as a modern automobile with safety to himself and the public. State v. Deming, 1959-NMSC-074, 66 N.M. 175, 344 P.2d 481; State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274.

Term "under the influence" has been interpreted to mean that to the slightest degree defendant was less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.

"Under the influence" means that to slightest degree defendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public. State v. Dutchover, 1973-NMCA-052, 85 N.M. 72, 509 P.2d 264.

III. ACTUAL PHYSICAL CONTROL.

Actual physical control. — A DWI conviction that is based on actual physical control requires proof that the accused actually, not just potentially, exercised control over the vehicle, as well as proof of a general intent to drive, so as to pose a danger to the safety of the driver or the public. State v. Sims, 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642, rev'g 2008-NMCA-017, 143 N.M. 400, 176 P.3d 1132 and limiting the holdings in Boone v. State, 1986-NMSC-100, 105 N.M. 223, 731 P.2d 366 and State v. Johnson, 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233.

Where a police officer found defendant passed out or asleep behind the wheel of defendant's vehicle located in a commercial parking lot; the keys were on the passenger seat of the vehicle; upon awakening defendant, the officer detected a strong odor of alcohol and observed that defendant had bloodshot, watery eyes; defendant admitted to drinking alcohol, failed field sobriety tests, and submitted to two breath tests, the results of which were 0.19 and 0.18, and no motion of the vehicle was asserted either before or at the time the officer approached defendant, the evidence was insufficient to show that defendant was in actual physical control of the vehicle and the charges against defendant of driving while intoxicated should be dismissed. State v. Sims, 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642, rev'g 2008-NMCA-017, 143 N.M. 400, 176 P.3d 1132 and limiting the holdings in Boone v. State, 1986-NMSC-100, 105 N.M. 223, 731 P.2d 366 and State v. Johnson, 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233.

Defendant was in actual physical control of his vehicle when he was discovered asleep or passed out at the wheel with the ignition key on the passenger seat. State v. Sims, 2008-NMCA-017, 143 N.M. 400, 176 P.3d 1132, rev'd, 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642.

Sufficient evidence of DWI based on actual physical control. — In a prosecution for aggravated DWI, where there were no witnesses who personally observed defendant driving, there was sufficient evidence to support the conviction under the theory of actual physical control based on the evidence presented at trial establishing that the arresting officer reached defendant's vehicle about five minutes after receiving a dispatch call alerting him that there was a pickup truck stuck in the median that was trying to back into traffic, that the officer observed defendant in the driver's seat of the truck, which was stuck in the median on the interstate with the hazard lights on, that the key to the vehicle was in the ignition and in the "on" position, and that defendant expressed an intent to drive, stating that he was going to El Paso. State v. Alvarez, 2018-NMCA-006, cert. denied.

No actual physical control. — When a police officer encountered defendant, defendant was standing outside defendant's vehicle, which was parked with the hood open and the engine off; defendant said defendant had stopped because defendant had been told the lights were not working; defendant had slurred speech, was unsteady, and had the odor of alcohol; and defendant failed a field sobriety test, defendant was not in actual physical control of the vehicle at the time the officer encountered defendant. State v. Reger, 2010-NMCA-056, 148 N.M. 342, 236 P.3d 654.

Actual physical control of inoperable vehicle. — The operability of a vehicle is a factor to be considered by the jury in determining whether a defendant has the general intent to drive so as to endanger any person. State v. Mailman, 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269.

Where a police officer observed a vehicle at a convenience store parked off by itself in the dark with the door open; defendant told the officer that the vehicle had broken down and asked the officer to call for a tow truck; although defendant stated that defendant had dropped the keys to the vehicle under the seat, the officer could not find the keys; the vehicle was an older vehicle that could be started sometimes without a key; and the officer tried to start the vehicle without a key, but the engine would not turn over, the evidence was insufficient as a matter of law to demonstrate that defendant had taken an overt step toward driving with a general intent to drive so as to endanger himself or the public and defendant was not in actual physical control of the vehicle. State v. Mailman, 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269.

DWI based on an inference of past driving. — Actual physical control is not necessary to prove DWI unless there are no witnesses to the vehicle's motion and insufficient circumstantial evidence to infer that the accused actually drove while intoxicated. Such evidence may include the accused's own admissions, the location of the vehicle next to the highway, or any other similar evidence that tends to prove that the accused drove while intoxicated. State v. Mailman, 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269.

Where a police officer observed a vehicle at a convenience store parked off by itself in the dark with the door open; the officer observed an open can of beer on the console; defendant appeared to be confused and disoriented, smelled of alcohol, and had difficulty maintaining balance; defendant stated that defendant had consumed a six-pack of beer and had thrown all but one can out of the vehicle window along the highway as defendant drove to the convenience store; and defendant refused to perform a field sobriety test and to provide a breath sample, admitting that defendant was too drunk to pass the test, there was substantial evidence to support defendant's conviction for past DWI. State v. Mailman, 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269.

Where police officers were called to investigate a report of domestic violence occurring in a van parked on a roadside; when the officers arrived, defendant was in the driver's seat of the van; the van was not running; the keys were not in the ignition; defendant exhibited signs of intoxication, failed a standard field sobriety test, and refused to submit to chemical testing; defendant admitted to drinking twenty-four ounces of beer about one hour earlier; and the state prosecuted defendant exclusively on the past impaired driving theory, the evidence was insufficient to prove that defendant operated a motor vehicle while impaired to the slightest degree. State v. Cotton, 2011-NMCA-096, 150 N.M. 583, 263 P.3d 925, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Unconscious driver exercised actual physical control. — A person who was discovered unconscious or asleep at the wheel of an automobile, whose engine was on, was deemed to be in actual physical control, and thus was driving a vehicle within the meaning of this section. State v. Harrison, 1992-NMCA-139, 115 N.M. 73, 846 P.2d 1082, cert. denied, 114 N.M. 720, 845 P.2d 814 (1993); State v. Rivera, 1997-NMCA-102, 124 N.M. 211, 947 P.2d 168; State v. Grace, 1999-NMCA-148, 128 N.M. 379, 993 P.2d 93, cert. denied, 128 N.M. 149, 990 P.2d 823.

Defendant sleeping in vehicle with key in ignition. — Evidence that defendant was found asleep at the wheel of his parked vehicle, without the motor running, but with the key in the ignition in the "on" position, was sufficient to establish that he was "driving" as that term is construed for purposes of "driving under the influence". State v. Tafoya, 1997-NMCA-083, 123 N.M. 665, 944 P.2d 894, abrogated State v. Mailman, 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269.

IV. DOUBLE JEOPARDY.

Double jeopardy not applicable. — Where the state initially brought charges of driving while intoxicated and vehicular homicide in one proceeding and the jury found the defendant guilty of driving while intoxicated but was unable to reach a verdict on the vehicular homicide count, the subsequent retrial of vehicular homicide did not subject the defendant to double jeopardy, as such an action could be characterized as a continuing prosecution of the vehicular homicide charge. State v. O'Kelley, 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, cert. quashed, 113 N.M. 24, 822 P.2d 121.

Double jeopardy does not bar DWI prosecution after license revocation. — An administrative driver's license revocation under the Implied Consent Act (Sections 66-8-105 to 66-8-112 NMSA 1978) does not constitute "punishment" for purposes of the Double Jeopardy Clause; thus, the state is not barred from prosecuting an individual for driving under the influence (DWI) even though the individual has been subjected to an administrative hearing for driver's license revocation based on the same offense. State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, 120 N.M. 619, 904 P.2d 1044.

No implied acquittal of greater offense. — Where the state brought charges of vehicular homicide and driving while intoxicated as separate counts, as opposed to lesser-included offenses, the jury's conviction of the defendant for driving while intoxicated but inability to reach a verdict on vehicular homicide was not an implied acquittal of vehicular homicide. An implied acquittal generally occurs when the jury is instructed to choose between a greater and a lesser offense, and chooses the lesser. State v. O'Kelley, 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, cert. quashed, 113 N.M. 24, 822 P.2d 121.

Reckless driving and driving under influence are distinct offenses. — The crimes of reckless driving and driving while under the influence of intoxicating liquor are distinct offenses, provable by different evidence, and conviction of one would not bar prosecution for the other. Rea v. Motors Ins. Corp., 1944-NMSC-002, 48 N.M. 9, 144 P.2d 676; State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274.

Driving-while-intoxicated merges with vehicular homicide. — A defendant's driving-while-intoxicated (DWI) offense merges with his vehicular homicide offense, and his sentence for the DWI conviction must be vacated. State v. Wiberg, 1988-NMCA-022, 107 N.M. 152, 754 P.2d 529, cert. denied, 107 N.M. 106, 753 P.2d 352; State v. Santillanes, 2000-NMCA-017, 128 N.M. 752, 998 P.2d 1203, rev'd, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456.

Offense not necessarily lesser included offense in vehicular homicide. — A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. However, where the indictment against defendant was phrased in the alternative charging him with homicide by vehicle while violating either this section or Section 64-22-3, 1953 Comp. (similar to Section 66-8-113 NMSA 1978), the prosecution was not barred by a conviction in municipal court for driving under the influence since the lesser offense of driving while under the influence of intoxicating liquor is not necessarily included in the greater offense of homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Greater crime does not necessarily include lesser crime. — Greater crime of aggravated DWI can be committed in such a manner that the lesser crime of DWI .08 is not committed. State v. Collins, 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090.

Notice of lesser included offense constructively given. — Where during the questioning of the state's first witness, the court asked the state to clarify whether the state's request for the jury instruction of DWI .08 was also a motion to amend the charges, and the state responded that it did seek to amend the charges and the court granted the state's request at that time, there is no need to amend a charging document to include a lesser included offense because notice of a lesser included offense is constructively given. State v. Collins, 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090.

Lesser offense included in aggravated offense. — Defendant could not commit per se aggravated DWI without also committing DWI. State v. Notah-Hunter, 2005-NMCA-074, 137 N.M. 597, 113 P.3d 867, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

No double jeopardy when facts fail "same evidence" test. — Where the facts offered in municipal court to support a conviction for driving while under the influence of intoxicating liquors would not necessarily sustain a conviction for homicide by vehicle in district court, under the "same evidence" test there was no double jeopardy when the state sought to prosecute the defendant for homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Construction under general/specific statute rule. — The legislature did not intend to limit prosecution for either or both child abuse and driving while under the influence; thus, the statute was not preempted under the general/specific statute rule. State v. Castaneda, 2001-NMCA-052, 130 N.M. 679, 30 P.3d 368.

V. PROBABLE CAUSE.

Misdemeanor arrest rule. — A police officer may properly arrest an intoxicated driver standing outside his vehicle when the officer has not observed him driving. The misdemeanor arrest rule is satisfied where the officer may reasonably infer from the direct and circumstantial evidence that the driver is intoxicated and has recently been in actual physical control of the vehicle. State v. Reger, 2010-NMSC-056, 148 N.M. 342, 236 P.3d 654

Misdemeanor arrest rule does not apply to DWI investigations. — Where a shopping mall employee saw a person staggering around the mall parking lot attempting to unlock different vans; the person eventually unlocked the door to a van and drove away; the employee gave the police a description of the van and the van's license plate number; a police officer went to the van's registered owner's address and observed a van that matched the employee's description in the driveway; the van's engine was warm; the officer knocked at the front door of the residence; the officer observed defendant stagger past the doorway, strike defendant's head on the wall next to the door, and fall; defendant staggered to the door a second time, fell, and opened the door from a sitting position; defendant told the officer that defendant had been driving the van earlier; and defendant had a strong odor of alcohol in defendant's breath, slurred speech, blood-shot eyes, and was unsteady, defendant's arrest for DWI was valid. City of Santa Fe v. Martinez, 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275.

An investigating officer need not observe the offense in order to make a warrantless arrest. Instead, the warrantless arrest of one suspected of committing DWI is valid when supported by both probable cause and exigent circumstances. City of Santa Fe v. Martinez, 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275.

Reasonable suspicion for traffic stop. — Where a police officer was driving on a county road, the officer observed the defendant come to a stop at a "T" intersection between the county road and an access road; there were no other vehicles on the county road or the access road; as the officer passed through the intersection, the officer observed that the defendant did not have his turn signal engaged; after the officer passed the defendant, the officer never saw the turn signal on the defendant's vehicle engaged; the defendant turned onto the access road without engaging the turn signal; the officer stopped the defendant for turning without using a turn signal and determined that the defendant was intoxicated, the trial court properly denied the defendant's motion to suppress evidence obtained at the traffic stop, because the officer had a reasonable particularized suspicion that the defendant had violated Section 66-7-325 NMSA 1978, which justified the stop at its inception. State v. Hubble, 2009-NMSC-014, 146 N.M. 70, 206 P.3d 579.

Reasonable suspicion supports a traffic stop when it is based on an officer's knowledge that the driver's license of the driver was suspended or revoked. — Where a police officer made a traffic stop of defendant's vehicle based solely on his belief that defendant had a suspended driver's license, which was based on two prior encounters with defendant where defendant was driving with a revoked or suspended driver's license and having heard on the police radio three or four weeks earlier that defendant was arrested for driving with a suspended or revoked driver's license and DWI, the district court erred in granting defendant's motion to suppress, because the officer's stop of defendant was supported by a constitutionally sufficient reasonable suspicion that defendant was driving with a suspended or revoked driver's license. State v. James, 2017-NMCA-053, cert. denied.

Probable cause. — The smell of alcohol emanating from the defendant, the defendant's lack of balance, and the manner of the defendant's performance of field sobriety tests constituted sufficient circumstances to give the officer the requisite objectively reasonable belief that the defendant had been driving while intoxicated and to proceed with breath alcohol content tests, and constituted probable cause to arrest the defendant. State v. Granillo-Macias, 2008-NMCA-021, 143 N.M. 455, 176 P.3d 1187, cert. denied, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 674.

Reasonable suspicion raised by citizen-informant. — Information from a citizen-informant may be relied on by an officer to raise a reasonable suspicion that a person is driving while intoxicated, justifying an investigatory stop. State ex rel. Taxation & Revenue Dep't Motor Vehicle Div. v. Van Ruiten, 1988-NMCA-059, 107 N.M. 536, 760 P.2d 1302, cert. denied, 107 N.M. 413, 759 P.2d 200.

Valid investigatory detention. — Where an officer received a dispatch that a caller had reported a "parked DWI in the parking lot" of a restaurant, described the subject vehicle, gave a partial license plate number for the vehicle, reported that a male subject who smelled of alcohol had entered the restaurant, passed out in the bathroom for a period of time, left the restaurant and then got into a dark blue vehicle, and then drove the vehicle from one parking space to another, almost striking several other vehicles in the parking lot, and where the officer, upon arriving on the scene minutes after receiving the dispatch call, found a vehicle matching the caller's description, the officer could reasonably infer that the car was the subject of the dispatch, and could reasonably suspect that the man described by the caller might be in the car and that he might have engaged in the criminal activity of driving while intoxicated; an investigatory detention and seizure of the car and its occupants was justified because the information provided by dispatch and the officer's own corroborating observation identifying the subject car would lead a person of reasonable caution to suspect criminal activity involving the car and its occupants. State v. Simpson, 2016-NMCA-070, cert. denied.

Officer's conduct in opening the door of a vehicle did not transform a lawful investigatory detention into a search requiring a warrant. — Where an officer received a dispatch that a caller had reported a "parked DWI in the parking lot" of a restaurant, described the subject vehicle, gave a partial license plate number for the vehicle, reported that a male subject who smelled of alcohol had entered the restaurant, passed out in the bathroom for a period of time, left the restaurant and then got into a dark blue vehicle, and then drove the vehicle from one parking space to another, almost striking several other vehicles in the parking lot, and where the officer, upon arriving on the scene minutes after receiving the dispatch call, found a matching vehicle, with very dark tinted windows preventing the officer from seeing inside the vehicle to determine what the occupants were doing, an investigatory detention and seizure of the car and its occupants was justified, and the officer's conduct in opening the door did not transform a lawful investigatory detention into a search requiring a warrant, because it was the safest way to make contact with the car's occupants, and under the circumstances, it was reasonable for the officer to open the car door, enabling the officer to see both occupants and remain outside while conducting his investigation. State v. Simpson, 2016-NMCA-070, cert. denied.

DWI test predicated on careless driving stop in parking lot valid. — Although careless driving cannot be committed in a parking lot, police officer who witnessed defendant driving at an excessive speed in a crowded parking lot had reasonable, although mistaken, suspicion to stop defendant, and such stop could be the predicate for a DWI test. State v. Brennan, 1998-NMCA-176, 126 N.M. 389, 970 P.2d 161, cert. denied, 126 N.M. 532, 972 P.2d 351.

VI. PROCEDURE.

Sufficiency of complaint. — A criminal complaint for driving under the influence of intoxicating liquor requires a more specific description of the offense than simply "DWI" because those initials standing alone could mean driving either while under the influence of alcohol or while under the influence of drugs. State v. Raley, 1974-NMCA-024, 86 N.M. 190, 521 P.2d 1031, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Defense of duress. — There is no requirement that a defendant admit to impairment in order to assert duress as a defense to a DWI charge. State v. Tom, 2010-NMCA-062, 148 N.M. 348, 236 P.3d 660.

Duress does not negate an essential element of the charged offense. — Where defendant was charged with aggravated DWI and careless driving, and where defendant claimed that circumstances required her to drive in violation of the law, the metropolitan court did not err in refusing defendant's tendered instruction that imbedded the absence of duress as an essential element of aggravated DWI, because a defendant pleading duress is not attempting to disprove a requisite mental state, but defendants in that context are instead attempting to show that they ought to be excused from criminal liability because of the circumstances surrounding their intentional act. State v. Percival, 2017-NMCA-042.

Collateral attack on prior convictions. — Where the municipal court judge, who accepted the defendant's prior DWI guilty pleas, testified that his standard practice was to inform defendants that it was their right to go to trial, to plead not guilty, to present witnesses and evidence, and to be represented by counsel and no evidence was presented to show that the outcome of the defendant's prior DWI cases would have been affected in any way if the municipal court judge had strictly followed the procedure in Rule 8-502 NMRA, the deficiencies in the information provided by the municipal court judge in accepting the defendant's prior DWI guilty pleas did not constitute fundamental error and the defendant cannot collaterally attack the validity of the prior DWI convictions. State v. Pacheco, 2008-NMCA-059, 144 N.M. 61, 183 P.3d 946, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.

Right to counsel. — Provision of this section subjecting defendant who refuses to submit to chemical testing to a mandatory jail sentence upon conviction of DWI does not violate the constitutional right to counsel. State v. Kanikaynar, 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091, cert. quashed, 124 N.M. 269, 949 P.2d 283; Kanikaynar v. Sisneros, 190 F.3d 1115 (10th Cir. 1999), cert. denied, 528 U.S. 1090, 120 S. Ct. 821, 145 L. Ed. 2d 691 (2000).

No right to counsel when under custodial arrest following testing. — A person issued a citation and placed under custodial arrest for driving while under the influence of intoxicating liquor does not have a constitutional right to counsel immediately following a breath alcohol test since it did not amount to initiation of judicial criminal proceedings or prosecutorial commitment, nor was the period following administration of the test a critical stage. State v. Sandoval, 1984-NMCA-053, 101 N.M. 399, 683 P.2d 516.

Right to jury trial. — A potential period of probation of more than six months does not present the degree of liberty deprivation that would convert the offense under Subsection D to the nature of such a serious offense as would trigger the right to a jury trial. Meyer v. Jones, 1988-NMSC-011, 106 N.M. 708, 749 P.2d 93.

Defendant charged with driving while intoxicated, second offense, was entitled to a jury trial. State v. Grace, 1999-NMCA-148, 128 N.M. 379, 993 P.2d 93, cert. denied, 128 N.M. 149, 990 P.2d 823.

Duress defense. — The defense of duress is available against the strict liability charge of driving while intoxicated. State v. Rios, 1999-NMCA-069, 127 N.M. 334, 980 P.2d 1068, cert. denied, 127 N.M. 390, 981 P.2d 1208.

Involuntary intoxication defense. — Because driving while impaired to the slightest degree in violation of Subsection A of Section 66-8-102 NMSA 1978 is a strict liability crime, involuntary intoxication is not a defense. State v. Gurule, 2011-NMCA-042, 149 N.M. 599, 252 P.3d 823.

Where defendant, who was ill, was visiting defendant's family; a family member served defendant a "tea" to clear up defendant's symptoms; the "tea" contained bourbon; defendant did not observe the preparation of the "tea", did not know that the "tea" contained alcohol, and did not taste the alcohol in the "tea"; and defendant was charged with DWI contrary to Subsection A of Section 66-8-102 NMSA 1978, under the impaired to the slightest degree standard, the defense of involuntary intoxication was not available as a defense. State v. Gurule, 2011-NMCA-042, 149 N.M. 599, 252 P.3d 823.

Offense/conviction chronological sequence rule does not apply. — Offense/conviction chronological sequence rule, judicially required for imposition of habitual offender penalties, does not apply to driving while intoxicated sentencing. State v. Hernandez, 2001-NMCA-057, 130 N.M. 698, 30 P.3d 387, cert. denied, 130 N.M. 558, 28 P.3d 1099.

Right to preliminary hearing. — An accused has no right to a preliminary hearing on a misdemeanor charge of driving while intoxicated. State v. Greyeyes, 1987-NMCA-022, 105 N.M. 549, 734 P.2d 789, cert. denied, 105 N.M. 521, 734 P.2d 761.

Defendant had gout when defendant performed field sobriety tests. — Where a police officer asked defendant if defendant had any physical injury or medical condition that would impair defendant's ability to perform field sobriety tests; defendant stated that defendant had gout in defendant's feet, but did not tell the officer that defendant could not perform the tests; the officer testified that defendant performed the field sobriety tests poorly; and defendant testified that defendant had gout in defendant's feet, and that because defendant played golf earlier in the day, defendant's feet were sore when defendant performed the tests, the trial court did not abuse its discretion in admitting the officer's testimony. State v. Bowden, 2010-NMCA-070, 148 N.M. 850, 242 P.3d 417, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.

Blood samples taken more than two hours after arrest are admissible. — Where a blood sample was drawn more than two hours after defendant was arrested, the results of the blood test were admissible as evidence under Subsection E of Section 66-8-110 NMSA 1978. State v. Bowden, 2010-NMCA-070, 148 N.M. 850, 242 P.3d 417, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.

Defense of duress. — Where defendant testified that defendant and defendant's companions were in a bar when a fight broke out, defendant was struck in the mouth with a bottle, defendant and defendant's companions sought refuge in defendant's car, defendant noticed someone approaching the car whom defendant believed to be the person who had struck defendant in the mouth and whom defendant believed to have a bottle, and defendant started the car and took off; and defendant asserted that, if defendant was impaired, defendant did not intend to drive while impaired, but did drive only because defendant feared immediate great bodily harm to defendant and defendant's companions, defendant's defense of duress did not require defendant to admit to impairment. State v. Tom, 2010-NMCA-062, 148 N.M. 348, 236 P.3d 660.

A defendant is not required to challenge the admissibility of breath-alcohol test results in a pretrial motion. State v. Tom, 2010-NMCA-062, 148 N.M. 348, 236 P.3d 660.

VII. JURISDICTION.

Lack of jurisdiction to deny credit for time served on probation. — Where defendant, who was convicted of DWI, violated probation and the district court did not revoke defendant's probation before the probationary period expired, the court lost jurisdiction under Section 31-20-8 NMSA 1978 to deny defendant credit for time served on probation as provided in Subsection S of Section 66-8-102 NMSA 1978. State v. Ordunez, 2010-NMCA-095, 148 N.M. 620, 241 P.3d 621, cert. granted, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146.

State officers' authority to investigate DWI in Indian country. — State officers have authority to enter Indian country to investigate off-reservation crimes committed in the officers' presence by Indians, so long as the investigation does not infringe on tribal sovereignty by circumventing or contravening a governing tribal procedure. State v. Harrison, 2010-NMSC-038, 148 N.M. 500, 238 P.3d 869, aff'g 2008-NMCA-107, 144 N.M. 651, 190 P.3d 1146.

Field sobriety tests performed in Indian country. — Field sobriety tests are procedural, rather than substantive, in nature because they are the investigative method by which the state enforces its substantive law prohibiting DWI, and in the absence of a tribal procedure governing the administration of field sobriety tests a state officer may investigate a possible DWI by administering field sobriety tests in Indian country. State v. Harrison, 2010-NMSC-038, 148 N.M. 500, 238 P.3d 869, aff'g 2008-NMCA-107, 144 N.M. 651, 190 P.3d 1146.

Where a state officer, who was not cross-commissioned with the Bureau of Indian Affairs or an Indian nation, tribe, or pueblo, observed a vehicle traveling on a county road at a high rate of speed in excess of the speed limit; the officer pursued the vehicle; the vehicle did not stop when the officer turned on the emergency lights or the siren of the police vehicle; when the vehicle crossed a bridge and entered the Navajo Reservation, the driver threw a bottle containing a yellow liquid out of the passenger window; the vehicle stopped inside the Navajo Reservation; defendant, who was driving the vehicle, had blood shot, watery eyes, smelled moderately of alcohol and admitted that defendant had thrown a bottle of beer out of the vehicle; defendant failed field sobriety tests; defendant was Navajo; and the Navajo Nation did not have a tribal procedure governing the administration of field sobriety tests, the traffic stop and the administration of the field sobriety tests did not infringe on the sovereignty of the Navajo Nation. State v. Harrison, 2010-NMSC-038, 148 N.M. 500, 238 P.3d 869, aff'g 2008-NMCA-107, 144 N.M. 651, 190 P.3d 1146.

Municipality may enact a drunken driving ordinance notwithstanding that state statute covers same subject matter and provides penalty for violations. Mares v. Kool, 1946-NMSC-032, 51 N.M. 36, 177 P.2d 532.

Municipal court had subject matter jurisdiction to try first offenders for driving while intoxicated (DWI), contrary to local ordinance, where the charges were brought under the ordinance rather than this section. Incorporated Cnty. of Los Alamos v. Montoya, 1989-NMCA-004, 108 N.M. 361, 772 P.2d 891, cert. denied, 108 N.M. 273, 771 P.2d 981.

State's appeal after remand to magistrate. — District court's order remanding defendant's misdemeanor DWI trial to magistrate court was, in effect, a dismissal of the charges against defendant; thus, under the doctrine of practical finality, the appellate court had jurisdiction to review the state's appeal. State v. Ahasteen, 1998-NMCA-158, 126 N.M. 238, 968 P.2d 328.

Prosecutorial discretion. — Although magistrate court has concurrent jurisdiction with district court over misdemeanor DWI cases, a defendant has no right to demand trial in the magistrate court; the decision is one of prosecutorial discretion and can only be challenged upon a showing of bad faith. State v. Ahasteen, 1998-NMCA-158, 126 N.M. 238, 968 P.2d 328.

Court loses jurisdiction upon entering of nolle prosequi. — The court which first acquired jurisdiction when a prosecution was commenced therein loses jurisdiction by the entering of a nolle prosequi, and thereafter another prosecution may be carried on in another court of coordinate jurisdiction. State v. Sweat, 1967-NMCA-021, 78 N.M. 512, 433 P.2d 229.

Inferior court may be divested of concurrent jurisdiction prosecution. — As this section vests concurrent jurisdiction in justice of the peace courts (now magistrate courts) and district courts in a case of first offense, that jurisdiction having first attached in the inferior court it could be divested by the district attorney and transferred to the district court and defendant could be prosecuted in district court after the nolle prosequi was entered in the justice court. State v. Sweat, 1967-NMCA-021, 78 N.M. 512, 433 P.2d 229.

Section subject to assimilation under federal law. — The offenses described by Section 66-5-39 NMSA 1978 (driving while license suspended), this section (driving while under the influence) and Section 66-7-3 NMSA 1978 (violation of traffic laws) are all criminal offenses, and, as such, the applicable sentences are assimilated for offenses committed on military installations within the state under the Assimilative Crimes Act, 18 U.S.C. § 13. United States v. Adams, 140 F.3d 895 (10th Cir.), cert. denied, 525 U.S. 895, 119 S. Ct. 219, 142 L. Ed. 2d 180 (1998).

VIII. EVIDENCE.

A. GENERALLY.

Trustworthiness doctrine. — The trustworthiness doctrine, which provides that unless the corpus delicti of an offense has been otherwise established, a conviction cannot be sustained solely on the extrajudicial admissions of the accused, was not applicable where the corpus delicti of the crime of DWI was established by independent evidence showing that someone drove while intoxicated. State v. Owelicio, 2011-NMCA-091, 150 N.M. 528, 263 P.3d 305, cert. granted, 2011-NMCERT-009, 269 P.3d 903.

Evidence to establish the corpus delicti of DWI. — Where a police officer, who was responding to a reported accident, observed defendant getting into the car on the passenger side and another person outside the car changing a flat tire; the car had two flat front tires; no one was sitting in the driver's seat; defendant and the other person showed signs of intoxication; defendant and the other person denied that the other person was driving the car; defendant's sibling testified that the other person was driving the car when defendant and the other person left a bar; defendant admitted several times that defendant was driving the car; defendant testified that the only persons in the car were defendant and the other person; no other persons were present when the officer investigated the accident; and other than defendant's admission to driving, there was no other evidence that defendant drove the car, there was independent evidence that the crime of DWI had been committed by someone and the trustworthiness of defendant's admission to driving was not necessary for purposes of establishing the corpus delicti of DWI, because the identity of the driver is not part of the corpus delicti of the offense of DWI. State v. Owelicio, 2011-NMCA-091, 150 N.M. 528, 263 P.3d 305, cert. granted, 2011-NMCERT-009, 269 P.3d 903.

Sufficient evidence of trustworthiness of admission of DWI. — Where a police officer, who was responding to a reported accident, observed defendant getting into the car on the passenger side and another person outside the car changing a flat tire; the car had two flat tires; no one was sitting in the driver's seat; defendant and the other person showed signs of intoxication; defendant and the other person were the only persons in the vicinity of the car; the other person denied driving the car and defendant admitted several times that defendant was driving the car; there was sufficient corroborating evidence to establish the trustworthiness of defendant's admission that defendant was driving and independent proof to confirm that defendant committed the crime of DWI. State v. Owelicio, 2011-NMCA-091, 150 N.M. 528, 263 P.3d 305, cert. granted, 2011-NMCERT-009, 269 P.3d 903.

Intent not required. — The only thing necessary to convict a person of driving while intoxicated is proof that the defendant was driving a vehicle either under the influence of intoxicating liquor or while he had a certain percentage of alcohol in his blood. State v. Harrison, 1992-NMCA-139, 115 N.M. 73, 846 P.2d 1082, cert. denied, 114 N.M. 720, 845 P.2d 814 (1993).

Driving while impaired to the slightest degree in violation of Subsection A of Section 66-8-102 NMSA 1978 is a strict liability crime. State v. Gurule, 2011-NMCA-042, 149 N.M. 599, 252 P.3d 823.

State to preserve remains of blood alcohol sample. — The state is constitutionally required to preserve what remains of a blood alcohol sample for independent testing by a person charged with driving while under the influence of intoxicating liquor. Montoya v. Metropolitan Court, 1982-NMSC-092, 98 N.M. 616, 651 P.2d 1260.

Scientific proof of defendant's blood or breath alcohol content is not required for a conviction under this section. State v. Neal, 2008-NMCA-008, 143 N.M. 341, 176 P.3d 330, cert. denied, 2008-NMCERT-001, 143 N.M. 397, 176 P.3d 1129.

Odor of liquor, standing alone, does not of itself prove intoxication. Sellers v. Skarda, 1963-NMSC-019, 71 N.M. 383, 378 P.2d 617.

Odor of liquor is not sufficient basis for inferring "under the influence". — An odor of liquor on one's breath is not a sufficient basis for inferring he was "under the influence" of intoxicating liquor. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984.

Failure to see decedent's car not sufficient basis for inference. — The failure of driver to see decedent on well-lighted road when driving at 40 miles per hour, until just before the impact, is not a sufficient basis for the inference that defendant was under the influence of intoxicating liquor. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984.

Although evidence showed that breath of accused smelled of whiskey and that he was nervous and restless, it was insufficient to prove that he was under the "influence of intoxicating liquor." State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274.

Not irrelevant to show defendant had given another a drink. — In prosecution for driving automobile while under influence of intoxicating liquor, it was not irrelevant to show that on the occasion in question accused had given another a drink. State v. Tinsley, 1929-NMSC-085, 34 N.M. 458, 283 P. 907.

Mere consumption of six beers not basis for inference of "influence". — The mere consumption of about six beers during a two-hour period does not give rise to an inference that a person was under the influence of intoxicating liquor. Lopez v. Maes, 1970-NMCA-084, 81 N.M. 693, 472 P.2d 658, cert. denied, 81 N.M. 721, 472 P.2d 984.

Admission of refusal to take test constitutional. — The admission of evidence concerning the refusal to take a field sobriety test did not violate the right to be free from self-incrimination under the U.S. Const., amend. V and N.M. Const., art. II, § 15. State v. Wright, 1993-NMCA-153, 116 N.M. 832, 867 P.2d 1214, cert. denied, 117 N.M. 121, 869 P.2d 820 (1994).

Refusal to take blood test may be excluded as irrelevant. — In a prosecution for driving while intoxicated, a driver's refusal to take a blood alcohol test is no more a relevant circumstance to establish consciousness of guilt than the arresting officer's refraining from obtaining a search warrant indicates a belief that the driver is not intoxicated. Thus a trial court may exclude evidence of the refusal as irrelevant. State v. Chavez, 1981-NMCA-060, 96 N.M. 313, 629 P.2d 1242, cert. denied, 96 N.M. 543, 632 P.2d 1181.

B. TESTS.

Admission of breathalyzer results. — A foundation for admission of breathalyzer may be established by evidence that the machine had been calibrated within one week of a defendant's breath test. State v. Cavanaugh, 1993-NMCA-152, 116 N.M. 826, 867 P.2d 1208, cert. denied, 117 N.M. 121, 869 P.2d 820 (1994)

Term "eight one-hundredths" in Subsection C refers not to a percentage of defendant's blood volume or weight, but to the reading derived from an intoxilyzer or blood test. City of Lovington v. Tyson, 1996-NMCA-068, 122 N.M. 49, 920 P.2d 119.

Compliance with breath test machine certification requirements is mandatory. — Compliance with the accuracy-ensuring regulations of the scientific laboratory division of the department of health is a condition precedent to admission of breath-alcohol test results, and before breath-alcohol test results may be admitted, the prosecution must make a threshold showing that the scientific laboratory division certification of the breath test machine was current at the time the test was taken and proof of compliance with other parts of the regulations, such as the calibration of the machine, will not satisfy the certification requirement. State v. Tom, 2010-NMCA-062, 148 N.M. 348, 236 P.3d 660.

Foundational requirement of demonstrating that the breath test machine was certified. — Where, at defendant's trial for DWI, the arresting officer testified that the officer administered a breath-alcohol test to defendant, that the officer was certified to operate the breath test machine, that a calibration check was performed immediately prior to administering the test to defendant, and that the officer believed the machine to be operating correctly when defendant performed the breath test; and the state did not present any testimony regarding whether the officer observed evidence of scientific laboratory division certification of the machine or whether the certification was current, the results of defendant's breath test was inadmissible because the state failed to lay the proper foundational requirement of demonstrating that the breath test machine was certified. State v. Tom, 2010-NMCA-062, 148 N.M. 348, 236 P.3d 660.

Expert testimony challenging the reliability of the intoxilyzer machine. Although the scientific laboratory division regulations provide for receiving test results in evidence, they do not preclude a defendant from challenging the reliability of the test results by expert testimony after the breath test results have been admitted in evidence. State v. King, 2012-NMCA-119, 291 P.3d 160, cert. denied, 2012-NMCERT-011.

Where, at defendant's trial for driving while intoxicated, the only witness for the state was the arresting police officer who testified that the officer performed a breath alcohol test on defendant using an intoxilyzer 800 machine; defendant proposed to call an expert witness to testify concerning the pitfalls common to all intoxilyzer 800 machines for the purpose of challenging the reliability of the test performed on defendant; and the witness had not examined the specific intoxilyzer 800 machine used to test defendant, defendant was entitled to present expert testimony challenging the reliability of the intoxilyzer 800 and the expert's failure to examine the machine that was used to test defendant did not preclude the expert's testimony. State v. King, 2012-NMCA-119, 291 P.3d 160, cert. denied, 2012-NMCERT-011.

Failure to show breath test machine had been certified. — Where police officer testified that the officer was trained and certified to operate and calibrate a breath test machine and that the machine used to test defendant's breath alcohol level had been calibrated three days before it was used to test defendant's breath and the state did not show that the machine had been certified by the State Laboratories Division, the state failed to establish the necessary foundation for admission of the breath test results. State v. Onsurez, 2002-NMCA-082, 132 N.M. 485, 51 P.3d 528, cert. denied, 132 N.M. 551, 52 P.3d 411.

Proof of certification required. — Before a breath alcohol test card is admitted into evidence, the state must show that the breath test machine has been certified by the State Laboratories Division and that the certification was current at the time the breath test was taken. State v. Martinez, 2007-NMSC-025, 141 N.M. 713, 160 P.3d 894, overruling Plummer v. Devore, 1992-NMCA-079, 114 N.M. 243, 836 P.2d 1264, cert. denied, 114 N.M. 82, 835 P.2d 80 and abrogating State v. Ruiz, 1995-NMCA-098, 120 N.M. 534, 903 P.2d 845, cert. denied, 120 N.M. 498, 913 P.2d 240.

Proficiency tests on breath test machines are mandatory. — Where defendant, in his trial for driving while under the influence of intoxicating liquor or drugs, presented evidence that the state laboratory division of the department of health (SLD) had no information available regarding proficiency tests conducted on the intoxilyzer 8000 used to test defendant's breath alcohol level, the district court abused its discretion in admitting defendant's breath alcohol test results, despite testimony from the arresting officer that the breath machine used to measure defendant's breath alcohol level was certified by SLD, because satisfactory performance on four annual proficiency tests is a mandatory accuracy ensuring requirement for certification under the current version of the regulation. State v. Hall, 2016-NMCA-080.

Breath alcohol instruments treated differently than equipment for purposes of foundational requirements. — The legislature has delegated full authority to the scientific laboratory division (SLD) over the testing of persons believed to be DUI, including the establishment of criteria and specifications for equipment, quality control, testing methodology and standards, and the certification of breath alcohol instruments, operators, and instructors. SLD regulations impose extensive and explicit certification requirements on instruments, including that each individual instrument have a current certificate evidencing compliance with SLD regulations. In contrast, the only requirements for equipment stated in the regulations are that SLD approve and maintain a list of approved manufacturer's equipment. The regulations contain no requirement that SLD or certified instrument operators must confirm that each individual component of the breath alcohol instrument are SLD-approved before a breath alcohol test (BAT) is administered, and the regulations contain no indication that such individual confirmation is necessary to ensure the accuracy of the BAT result. State v. Hobbs, 2016-NMCA-022, cert. denied, 2016-NMCERT-002.

Confirmation that SLD has approved the equipment on a breath alcohol instrument is not a foundational prerequisite to admission of BAT results. — The state need not make a threshold showing that the certified operator of a certified breath alcohol instrument confirmed at the time of the test that equipment attached to the breath alcohol instrument is approved by the scientific laboratory division of the department of health (SLD) in order to lay a sufficient foundation under Rule 11-104(A) NMRA for the admission of breath alcohol test (BAT) results into evidence. SLD regulations contain no requirement that SLD or certified instrument operators must confirm that each individual tank and its contents are SLD-approved before a BAT is administered. The regulations contain no indication that such individual confirmation is necessary to ensure the accuracy of a BAT result. State v. Hobbs, 2016-NMCA-022, cert. denied, 2016-NMCERT-002.

Where defendant challenged the admission of his breath alcohol test (BAT) results at trial on the ground that they lacked a sufficient foundation to support their admission into evidence because the certified instrument operator failed to establish that the gas canister, a piece of equipment separate from the breath alcohol instrument, complied with "accuracy ensuring" regulations, the trial court did not abuse its discretion in admitting defendant's BAT results into evidence because the state is not required to make a threshold showing that the certified operator of a certified breath alcohol instrument confirmed at the time of the test that equipment attached to the instrument is SLD-approved in order to lay a sufficient foundation under Rule 11-104(A) NMRA for the admission of BAT results into evidence. State v. Hobbs, 2016-NMCA-022, cert. denied, 2016-NMCERT-002.

Admission of breath test results was proper based on certification of breath machine. — Where, during defendant's trial for driving while under the influence of intoxicating liquor, defendant claimed that evidence of his blood alcohol content (BAC) was inadmissible because plaintiff, the town of Taos, failed to run radio frequency interference (RFI) tests for the location of the breath test machine and because the solution used to calibrate the breath machine was used at an incorrect temperature, the district court did not abuse its discretion in admitting defendant's BAC readings, because the town of Taos proffered testimony that the breath machine had a certification sticker issued by the scientific laboratory division of the department of health on it when the test was run, that RFI tests were conducted on the breath machine one year and five months before defendant's breath test, and, based on the evidence that the wet bath simulator used to calibrate the breath machine showed the target temperature, the district court could properly conclude that the simulator solution used to calibrate the breath test machine was used at the proper temperature. Town of Taos v. Wisdom, 2017-NMCA-066, cert. denied.

Officer's lay testimony regarding defendant's performance on field sobriety tests was permissible. — Where, during defendant's trial for driving while under the influence of intoxicating liquor, the arresting officer limited his testimony to a recitation of what he said and did in administering field sobriety tests, and to his observations of defendant's actions during the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test, never summarizing his observations into a conclusion regarding defendant's performance on the field sobriety tests or correlating defendant's performance on the tests with a blood alcohol content, the district court did not abuse its discretion in admitting the testimony as lay witness testimony, because the officer's testimony was limited to testimony that is rationally based on the witness's perception, and not based on scientific, technical, or other specialized knowledge. Town of Taos v. Wisdom, 2017-NMCA-066, cert. denied.

Proper functioning of breath test machine. — When an issue is raised regarding the validity of the breathalyzer test results, the state is required to make some showing regarding the proper functioning of the breath test machine. State v. Christmas, 2002-NMCA-020, 131 N.M. 591, 40 P.3d 1035, cert. denied, 131 N.M. 619, 41 P.3d 345.

Discrepancy in test results. — Any discrepancy in regard to the validity of defendant's breathalyzer test goes to the weight of the evidence, not its admissibility. State v. Christmas, 2002-NMCA-020, 131 N.M. 591, 40 P.3d 1035, cert. denied, 131 N.M. 619, 41 P.3d 345.

Uncertainty computations within the state laboratory division's chemical testing scheme. — Where defendants, in consolidated appeals, were charged with driving under the influence of intoxicating liquor or drugs, the district court judges did not abuse their discretion in ruling that defendants' breath alcohol test results were sufficiently reliable to be admitted into evidence without uncertainty computations related to state laboratory division approved chemical testing, because the substance of defendants' admitted evidence did not affirmatively demonstrate a lack of reliability within the regulatory scheme for determining breath alcohol content. State v. Montoya; State v. Yap, 2016-NMCA-079, cert. denied.

Improper admission of breath test results was not harmless error. — Where the state presented evidence that defendant smelled of alcohol, admitted to drinking, failed field sobriety tests, almost struck an officer with defendant's car as defendant drove out of a parking lot at a bar, and was hysterical during the roadside encounter; defendant testified that defendant had been struck on the side of the mouth by a bottle during a fight at the bar, defendant had taken refuge in defendant's vehicle, defendant did not see or hear any officers around the car, and defendant was upset and in pain during the roadside encounter; and the state failed to lay a proper foundation for the admission of defendant's breath-alcohol test results by demonstrating that the breath test machine was certified, the admission of the results of defendant's breath-alcohol test results was not harmless error. State v. Tom, 2010-NMCA-062, 148 N.M. 348, 236 P.3d 660.

Evidence of correlation between field sobriety test and blood alcohol content was prejudicial. — Where defendant was convicted by a jury of driving while intoxicated; the trial court improperly permitted a police officer to give scientific evidence that correlated defendant's performance on three field sobriety tests with a ninety percent statistical probability of a blood alcohol content at or above the legal limit; the state produced sufficient evidence to support defendant's conviction without reference to the officer's improperly admitted scientific evidence; and there was substantial conflicting testimony by defendant to discredit the police officer's testimony, the improperly admitted evidence undermined defendant's credibility and the evidentiary error was not harmless. State v. Marquez, 2009-NMSC-055, 147 N.M. 386, 223 P.3d 931, rev'g 2008-NMCA-133, 145 N.M. 31, 193 P.3d 578.

Ascertaining that the defendant has not had anything to eat, drink or smoke prior to the collection of a breath sample. — The provisions of 7.33.2.12(B)(1) NMAC, which provides that a BRAT machine operator shall not take a breath sample until the operator has ascertained that the subject has not had anything to eat, drink or smoke prior to the collection of the breath sample, does not require the operator to either ask a person suspected of drunk driving whether the subject has anything in the subject's mouth or to inspect the subject's mouth for food or other substances prior to initiating the required twenty-minute deprivation period. State v. Willie, 2009-NMSC-037, 146 N.M. 481, 212 P.3d 369, rev'g 2008-NMCA-030, 143 N.M. 615, 179 P.3d 1223 and overruling State v. Collins, 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090.

Where the defendants waited for an hour following their arrest to submit to a breathalyzer test; the defendants waited for the test either in the arresting officer's patrol car with their hands cuffed behind their backs, a holding cell at the police station in view of the arresting officer or the breath testing room while in the arresting officer's presence; the arresting officer engaged the defendants in conversation; the arresting officer testified that the officer was confident that the defendants had not put anything in their mouths or had anything to eat, drink or smoke during the one-hour period; and the officers neither asked the defendants if they had anything in their mouths nor inspected the defendants' mouths for any substances prior to taking their first breath samples, the officers did not violate 7.33.2.12(B)(1) NMAC, which provides that breath samples can be collected only after the arresting officer has ascertained that the subject has not had anything to eat, drink or smoke for at least twenty minutes prior to taking the first breath sample. State v. Willie, 2009-NMSC-037, 146 N.M. 481, 212 P.3d 369, rev'g 2008-NMCA-030, 143 N.M. 615, 179 P.3d 1223 and overruling State v. Collins, 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090.

The 12-Step Protocol (which is a process designed to enable law enforcement to identify (1) whether a subject's ability to operate a vehicle is impaired and (2) which category of drugs has affected a subject) is not scientific even though some of the individual steps of the Protocol are scientific processes and require a scientific foundation. State v. Aleman, 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110, cert. denied, 2008-NMCERT-008, 145 N.M. 254, 195 P.3d 1266.

Drug recognition evaluator. — Where the state has established the scientific reliability of the 12-Step Protocol, a drug recognition evaluator may testify as an expert witness regarding the administration and results of the protocol as it is applied to a particular defendant. State v. Aleman, 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110, cert. denied, 2008-NMCERT-008, 145 N.M. 254, 195 P.3d 1266.

Horizontal gaze nystagmus test. — Police officer's testimony that the National Highway Traffic Safety Administration accepted HGA testing, that the test was nationally certified and that the test was routinely given, the testimony was not sufficient to establish the evidentiary reliability required for admission of the test results. State v. Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20.

To establish a scientific foundation for the admission into evidence of the results of the horizontal gaze nystagmus test (HGN), the state must establish the required physiological relationship between HGN and impairment, and between HGN and a particular category of drugs. State v. Aleman, 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110, cert. denied, 2008-NMCERT-008, 145 N.M. 254, 195 P.3d 1266.

Compliance with regulations. — The state laboratory division regulation, which requires an officer administering the breath test to collect a subject's breath for testing only after ascertaining that the subject has not had anything to eat, drink or smoke for at least twenty minutes prior to collection of the first breath sample, requires the officer to look in the subject's mouth or ask the subject if there is anything in his or her mouth. State v. Willie, 2008-NMCA-030, 143 N.M. 615, 179 P.3d 1223, overruled by 2009-NMSC-037, 146 N.M. 481, 212 P.3d 369.

Proper admission of blood alcohol test. — Because the state showed that the machine used to test defendant's blood alcohol content was calibrated and functioning properly within the seven-day period prior to defendant's blood alcohol test, the calibration requirements in the administrative regulations were met and it was not an abuse of discretion for the district court to admit the results of the blood alcohol test. State v. Collins, 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090, overruled by State v. Willie, 2009-NMSC-037, 146 N.M. 481, 212 P.3d 369.

Admission of breathalyzer results. — All that is necessary to lay a proper foundation for the admission of breathalyzer test results in a criminal DWI trial is the live testimony of the officer who administered the test as to his familiarity with the testing procedure, the recent calibration of the machine, and his observation that the test administration proceeded without error. State v. Smith, 1999-NMCA-154, 128 N.M. 467, 994 P.2d 47, cert. denied, 128 N.M. 149, 990 P.2d 823.

BAC results and testimony about retrograde extrapolation are relevant under the implied to the slightest degree theory. — Breath alcohol content (BAC) results and expert testimony about retrograde extrapolation are relevant under the implied to the slightest degree theory to show that a defendant had alcohol in his system and, regardless of the numerical BAC, tended to show that the defendant's poor driving was a result of drinking alcohol. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001.

Where defendant was charged with vehicular homicide and DWI, based on a theory of impaired to the slightest degree, the jury was entitled to consider the breath alcohol test results insofar as they were relevant as evidence of alcohol in defendant's system, and the fact that scientific retrograde extrapolation evidence was presented diminished the risk that the jury considered the breath alcohol test results in an inappropriate and prejudicial manner. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001.

Lack of evidence of rising or falling blood alcohol content. — Although the defendant argued that the state failed to produce evidence by which a trier of fact could find that his blood alcohol content (BAC) was .10% at the time that he was actually driving his vehicle, he waived this argument when, following his arrest, the officer proposed to test the defendant's BAC a second time and he refused to take the test. A second BAC reading would have provided the sort of evidence necessary to show a "rising" or "falling" of the defendant's BAC. Also, the defendant need not have been informed of all of the consequences of his refusal to take a second test, since there is no requirement that a party must be informed of every possible consequence of an action before suffering the consequences of that action. State v. Scussel, 1994-NMCA-018, 117 N.M. 241, 871 P.2d 5, cert. denied, 117 N.M. 215, 870 P.2d 753.

Inconclusive test requires corroboration. — A blood or breath alcohol test administered over two hours after the time of driving, and yielding only marginal results, must be corroborated by additional evidence to support a jury verdict. State v. Baldwin, 2001-NMCA-063, 130 N.M. 705, 30 P.3d 394.

Improper admission of blood alcohol test. — The improper admission of a blood alcohol test (BAT) was harmless error since the defendant was charged with driving under the influence of intoxicating liquor or drugs and there was sufficient evidence to support a conviction of the offense without consideration of the BAT results. State v. Gutierrez, 1996-NMCA-001, 121 N.M. 191, 909 P.2d 751, cert. denied, 121 N.M. 57, 908 P.2d 750.

C. SUFFICIENCY.

Substantial evidence. — Defendant's conviction of DWI was supported by substantial evidence where police officers observed that the defendant had red, blood shot and watery eyes, slurred speech and a very strong odor of alcohol on his breath; one officer testified that the defendant had admitted to the officer that he had been drinking at this mother's apartment; the officers observed several open cans of beer at the apartment of the defendant's mother; and defendant did not dispute that he refused to consent to take a breath test. State v. Soto, 2007-NMCA-077, 142 N.M. 32, 162 P.3d 187, cert. denied, 2007-NMCERT-006, 142 N.M. 15, 162 P.3d 170.

Guilty of manslaughter where collision directly resulted from defendant's intoxication. — Where evidence established beyond all question that defendant drove his car upon highway in intoxicated condition and collision of his car with the rear of the one in which decedent was riding resulted not only proximately, but directly, from defendant's condition, trial court correctly instructed jury that if it should so find, defendant would be guilty of involuntary manslaughter. State v. Alls, 1951-NMSC-016, 55 N.M. 168, 228 P.2d 952.

Actual physical possession. — Where defendant had parked defendant's truck on private property at an auto dealership; when the police officer encountered defendant, defendant was standing outside the truck which was parked with the hood open and the engine off; defendant had slurred speech, was unsteady, and had an odor of alcohol on defendant's breath; and defendant failed field sobriety tests, defendant was not in actual physical control of the truck. State v. Reger, 2010-NMCA-056, 148 N.M. 342, 236 P.3d 654.

Misdemeanor arrest rule satisfied by circumstantial evidence. — Where an officer has not observed an intoxicated driver in actual physical control of a vehicle, the misdemeanor arrest rule is satisfied when the facts and circumstances occurring within the officer's observation, in connection with what, under the circumstances, may be considered common knowledge, give the officer probable cause to believe or reasonable grounds to suspect that the intoxicated driver had been in actual physical control of the vehicle. State v. Reger, 2010-NMCA-056, 148 N.M. 342, 236 P.3d 654.

Misdemeanor arrest rule satisfied. — Where defendant had parked defendant's truck on private property at an auto dealership; when the police officer encountered defendant, defendant was standing outside the truck which was parked with the hood open and the engine off; defendant had slurred speech, was unsteady, and had an odor of alcohol on defendant's breath; and defendant failed sobriety tests, the officer could reasonably infer that defendant was intoxicated and had recently been in actual physical control of the vehicle, and the circumstances satisfied the requirement of the misdemeanor arrest rule that the offense be committed in the officer's presence. State v. Reger, 2010-NMCA-056, 148 N.M. 342, 236 P.3d 654.

Evidence was sufficient to show impairment to the slightest degree. — Where defendant drove defendant's vehicle at a high rate of speed and turned into a parking lot with tires squealing; a police officer had to move to avoid being hit by defendant's vehicle; defendant had bloodshot, watery eyes and an odor of alcohol; and defendant admitted to having consumed beer and failed to adequately perform field sobriety tests by losing balance and failing to follow instructions, the evidence was sufficient to support the jury's finding of impairment to the slightest degree. State v. Nevarez, 2010-NMCA-049, 148 N.M. 820, 242 P.3d 387, cert. denied, 2010-NMCER T-006, 148 N.M. 582, 241 P.3d 180 and cert. quashed, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.

Retroactive application of decision in Birchfield v. North Dakota relating to sanctions for refusing to submit to warrantless blood tests. — The rule announced in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), which held that a person who is arrested for DWI may not be punished for refusing to consent to or submit to a blood test under an implied consent law unless the officer either obtains a warrant or proves probable cause to require the blood test in addition to exigent circumstances, may be applied retroactively, because a new rule may be applied retroactively when it is a substantive rule that alters the range of conduct or the class of persons that the law punishes, and Birchfield bars criminal sanctions previously imposed upon a subject for refusing to submit to warrantless blood tests. State v. Vargas, 2017-NMSC-029, aff'g 2017-NMCA-023, 389 P.3d 1080.

Implied consent laws can no longer provide that a driver impliedly consents to a blood draw. — The fourth amendment permits warrantless breath tests incident to legal arrests because noninvasive breath tests only slightly impact a subject's privacy and because the state has an interest in testing breath alcohol content to maintain highway safety and deter drunk driving, but blood tests bear too heavily on a subject's privacy interests to permit the state to seize warrantless samples at all DWI stops. Therefore, when a subject does not consent to a blood draw, officers must obtain a warrant or establish probable cause and exigent circumstances to justify a warrantless search. State v. Vargas, 2017-NMSC-029, aff'g 2017-NMCA-023, 389 P.3d 1080.

A driver cannot be subjected to criminal penalties for refusing to submit to a warrantless blood draw. — Where defendant consented to provide two breath test samples at a DWI checkpoint, but refused to submit to a blood test, her conviction for aggravated DWI was improper, because blood tests bear too heavily on a subject's privacy interests to permit the state to seize warrantless samples at all DWI stops, and when a subject does not consent to such a search, officers must obtain a warrant or establish probable cause and exigent circumstances to justify a warrantless search. State v. Vargas, 2017-NMSC-029, aff'g 2017-NMCA-023, 389 P.3d 1080.

Sufficient evidence of driving while intoxicated, impaired to the slightest degree. — Where defendant was convicted of driving while intoxicated, impaired to the slightest degree, and where the state presented evidence that defendant was driving her vehicle when it approached a DWI checkpoint, that the police officer on duty noticed an odor of alcohol coming from the vehicle and from defendant, that defendant had bloodshot and watery eyes, that defendant failed to successfully complete any of the four field sobriety tests that were administered, that defendant admitted to consuming alcohol, and that a breath alcohol test indicated that defendant had consumed alcohol, there was sufficient evidence to prove beyond a reasonable doubt that defendant had committed the crime of driving while intoxicated, impaired to the slightest degree. State v. Vargas, 2017-NMCA-023, cert. granted.

A defendant may not be held criminally liable for refusing to submit to a warrantless blood test based on implied consent. — Where defendant was charged with aggravated driving while intoxicated, and where defendant's DWI charge was aggravated based on her refusal of a warrantless blood test, defendant's conviction for aggravated DWI was reversed because a driver may be deemed to have consented to a warrantless blood test under a state implied consent statute, but the driver may not be subject to a criminal penalty for refusing to submit to such a test, and therefore where defendant was threatened with an unlawful search, her refusal to submit to the search cannot be the basis for aggravating her DWI sentence. State v. Vargas, 2017-NMCA-023, cert. granted.

Sufficient evidence to show refusal to submit to chemical testing. — Where a police officer stopped defendant for driving without headlights; the officer noticed a strong odor of alcohol and that defendant had bloodshot eyes, a flushed face and slurred speech; defendant admitted to drinking three beers; defendant failed field sobriety tests; the officer read the implied consent act to defendant; defendant acknowledged that defendant understood the act but refused to provide a breath sample; the officer explained the consequences of a refusal to provide the breath sample; defendant acknowledged that defendant understood the consequence of a refusal; and defendant again refused to provide a breath sample, there was sufficient evidence to support the finding that defendant refused to submit to chemical testing. State v. Loya, 2011-NMCA-077, 150 N.M. 373, 258 P.3d 1165, cert. denied, 2011-NMCERT-006, 150 N.M. 763, 266 P.3d 632.

Evidence sufficient to permit jury to infer DWI. — Where defendant was given a breath test one hour after defendant stopped driving; the breathalyzer initially registered .09 and .08 three minutes later; defendant admitted that defendant had "slept some" after drinking but before driving; defendant's expert witness testified about the physiological consequences of alcohol ingestion and the difficulty of extrapolating back in time from a breathalyzer test administered at a later time; and based on the evidence, the jury could have reasonably inferred that defendant's breath alcohol level had peaked and that defendant was in the elimination stage when the breathalyzer test was given which would support a conclusion that defendant was driving with a blood alcohol level over the legal limit, there was sufficient evidence to support defendant's conviction of driving under the influence. State v. Christmas, 2002 NMCA 020, 131 N.M. 591, 40 P.3d 1035, cert. denied, 131 N.M. 619, 41 P.3d 345.

Evidence sufficient to show driving under the influence. — Where defendant admitted that he had consumed two beers prior to driving defendant's vehicle; a police officer testified that defendant staggered out of a bar before defendant entered defendant's vehicle; defendant was slow to react to the near collision with another vehicle as defendant was leaving the bar parking lot; defendant drove in reverse into a dangerous street; defendant had fumbling fingers when defendant searched for defendant's driver's license, registration and proof of insurance; defendant was slow to respond when exiting defendant's vehicle; defendant had to brace against the vehicle for balance; defendant performed poorly on the field sobriety tests; and defendant refused to submit to a breath alcohol test, the evidence was sufficient to support defendant's conviction of driving while intoxicated. State v. Marquez, 2009-NMSC-055, 147 N.M. 386, 223 P.3d 931, aff'g 2008-NMCA-133, 145 N.M. 31, 193 P.3d 578.

Where defendant weaved out of defendant's driving lane, nearly colliding with another vehicle; defendant's breath alcohol content test showed that there was alcohol in defendant's system; defendant admitted drinking beer; the arresting officer noticed an odor of alcohol on defendant; and defendant failed some field sobriety tests, the evidence was sufficient to convict the defendant of violation of Subsection A of Section 66-8-102 NMSA 1978. State v. Pickett, 2009-NMCA-077, 146 N.M. 655, 213 P.3d 805, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.

Sufficient evidence. — Where defendant was stopped for an unilluminated license plate, the officer smelled an odor of alcohol emanating from defendant, defendant admitted that he had been drinking for two hours while preparing and eating dinner before driving his vehicle, defendant failed his field sobriety tests, defendant's eyes were bloodshot and watery, defendant had slurred speech and defendant's expert witness testified regarding the alcohol time response curve, defendant's per se DWI conviction, based in part on a 0.08 BAC result one hour and six minutes after defendant's arrest, was supported by substantial evidence. State v. Day, 2008-NMSC-007, 143 N.M. 359, 176 P.3d 1091.

Since there was evidence that defendant, while driving fast at night without lights, veered into the lane of an oncoming car, had an opened can of beer on the floorboard under the steering wheel, had smell of alcohol on his breath and spoke as if affected by the alcohol, had .075% blood alcohol and .086% urine alcohol content, had imbibed five or six beers during the day, had taken some heroin, and morphine content of the blood was .15 micrograms per milliliter while morphine content of the urine was .45 micrograms per milliliter, there was substantial evidence that defendant was driving the car while under the influence of either intoxicating liquor, or a narcotic drug, or both. State v. Dutchover, 1973-NMCA-052, 85 N.M. 72, 509 P.2d 264.

Since officer testified that he smelled alcohol on defendant's breath, that the defendant staggered when he walked, had difficulty in dialing the telephone, talked with difficulty and in the opinion of the officer was under the influence of alcohol when arrested, is substantial evidence to support the conviction of driving "under the influence." City of Portales v. Shiplett, 1960-NMSC-095, 67 N.M. 308, 355 P.2d 126.

Aggravated DWI. — When marginal blood alcohol test results from a test administered one hour and twenty-two minutes after driving, and without corroborating evidence to substantiate that defendant was actually driving with a blood alcohol count of 0.16 or greater, a conviction for per se aggravated DWI will be reversed. State v. Notah-Hunter, 2005-NMCA-074, 137 N.M. 597, 113 P.3d 867, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

DWI conviction affirmed. — Where defendant smelled of alcohol, had slurred speech, admitted to drinking alcohol, failed field sobriety tests, and was speeding while driving down the middle of the road, sufficient evidence existed to find defendant guilty of the lesser included offense of driving while intoxicated in violation of Subsection A of this section. State v. Notah-Hunter, 2005-NMCA-074, 137 N.M. 597, 113 P.3d 867, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

Nexus between test results and earlier behavior. — Defendant's conviction for a per se violation of the driving while intoxicated statute was affirmed where corroborating evidence established a nexus between his breath alcohol concentration test results and his behavior one hour and 31 minutes earlier at the time of driving. State v. Martinez, 2002-NMCA-043, 132 N.M. 101, 45 P.3d 41, cert. denied, 132 N.M. 193, 46 P.3d 100.

Evidence supporting finding of driving while intoxicated. — Defendant's conviction of driving while intoxicated was supported by substantial circumstantial evidence, where he admitted to the investigating officer that he had been drinking "all night", admitted leaving a liquor store and driving into a rail, and the level of alcohol found in his blood could reasonably lead the jury to infer that he had been drinking for several hours. State v. Greyeyes, 1987-NMCA-022, 105 N.M. 549, 734 P.2d 789, cert. denied, 105 N.M. 521, 734 P.2d 761; State v. Luna, 1980-NMSC-009, 93 N.M. 773, 606 P.2d 183.

Evidence sufficient to show driving under the influence. — There was sufficient evidence to show that the defendant was driving his vehicle under the influence of intoxicating liquor as required by subsection A: defendant's breath smelled strongly of alcohol; his eyes were bloodshot and watery; his speech was slurred; he admitted having recently consumed alcohol; he failed three field sobriety tests; he tested at .10% for blood alcohol content; and in the officer's opinion, the defendant was intoxicated. The defendant's argument that he failed the field sobriety tests due to impairment from back problems goes to the weight and effect placed on that evidence by the fact finder. Moreover, the evidence of intoxication was obtained 39 minutes after the defendant was stopped, inferring that the defendant was under the influence of alcohol at the time he was in control of the vehicle. State v. Scussel, 1994-NMCA-018, 117 N.M. 241, 871 P.2d 5, cert. denied, 117 N.M. 215, 870 P.2d 753.

Evidence regarding defendant's appearance, slurred speech, and a strong order of alcohol, as well as defendant's admission of having drunk a few beers and his refusal to submit to a chemical test for blood alcohol level was sufficient for a reasonable jury to conclude, beyond a reasonable doubt, that defendant's driving was likely impaired, and that he was guilty of DWI. State v. Caudillo, 2003-NMCA-042, 133 N.M. 468, 64 P.3d 495.

Evidence sufficient to support inference of driving while intoxicated. — Where officers found a defendant passed out in his vehicle in a parking lot of a store that does not sell alcohol at 10:30 a.m., the defendant appeared intoxicated, and the officers did not report seeing alcohol containers in or around the defendant's vehicle, these facts could support a reasonable inference that the defendant drove to the parking lot while he was intoxicated. State v. Gomez, 2003-NMSC-012, 133 N.M. 763, 70 P.3d 753.

Sufficient evidence of past driving while impaired. — In defendant's trial for driving while under the influence of intoxicating liquor, where the evidence included testimony of two witnesses from the scene who testified to seeing defendant in the driver's side of the vehicle and operating the vehicle immediately after the initial crash and testimony that immediately after the crash defendant looked like he had been drinking, testimony from the officer that he detected a strong odor of alcohol on defendant's breath, that defendant admitted that he had consumed "a few beers", and that during the field sobriety tests, defendant swayed on the spot while standing, stepped out of position to maintain balance, used his arms for balance, and performed the tasks contrary to the instructions given, and evidence that defendant's blood alcohol content after a twenty-minute deprivation period was .12, there was sufficient evidence to support defendant's conviction for DWI based on past driving while impaired. Town of Taos v. Wisdom, 2017-NMCA-066, cert. denied.

Aggravated DWI based on past driving. — In a prosecution for aggravated DWI, where there were no witnesses who personally observed defendant driving, there was sufficient evidence to support an inference that defendant had actually driven the vehicle based on the evidence presented at trial establishing that the arresting officer reached defendant's vehicle about five minutes after receiving a dispatch call alerting him that there was a pickup truck stuck in the median that was trying to back into traffic, that the officer observed that defendant's vehicle was stuck in the median, the vehicle was on, and the hazard lights were on, that defendant was alone, that the officer observed defendant exit from the driver's seat, and that defendant stated that he was coming from Albuquerque and was going to El Paso; the state presented sufficient evidence to support a conviction for DWI based on past driving. State v. Alvarez, 2018-NMCA-006, cert. denied.

Sufficient evidence of driving under the influence of marijuana. — Where defendant was charged with aggravated driving while under the influence of intoxicating liquor or drugs, there was sufficient evidence to support defendant's conviction where the state established evidence that the arresting officer observed that defendant could not maintain his lane of traffic, swerving multiple times onto the right shoulder and then to the left grazing the concrete lane divider, that after the traffic stop, the officer smelled burnt marijuana emitting from defendant's vehicle, that defendant produced a marijuana pipe from his vehicle and gave it to the officer, that defendant admitted to the officer that he had smoked marijuana, that defendant failed several field sobriety tests, and that defendant refused to submit to a blood test. State v. Storey, 2018-NMCA-009, cert. denied.

Evidence supported finding that defendant was under the influence at time of accident. State v. Copeland, 1986-NMCA-083, 105 N.M. 27, 727 P.2d 1342, cert. denied, 104 N.M. 702, 726 P.2d 856.

Substantial evidence to support conviction despite alleged inaccuracy of breath machine. — Despite the defendant's argument that breath machines generally are only accurate to plus or minus 10%, there was substantial evidence - including a test result of .153% and the testimony of the arresting officer - to support a conviction. State v. Watkins, 1986-NMCA-080, 104 N.M. 561, 724 P.2d 769, cert. dismissed, 104 N.M. 522, 724 P.2d 231.

Sufficient evidence to support convictions for DWI. — Where defendant argued that uncertainty inherent to all systems of forensic measurement renders his breath alcohol test (BAT) results insufficiently reliable to support his convictions for per se DWI and driving while impaired to the slightest degree, evidence that defendant's BAT resulted in two readings of 0.08, when viewed in the light most favorable to the guilty verdict, was sufficient to support defendant's convictions. State v. Montoya; State v. Yap, 2016-NMCA-079, cert. denied.

Sufficient evidence to support conviction for DWI despite evidence that breath machine was not certified. — Where defendant, in his trial for driving while under the influence of intoxicating liquor or drugs, argued that the reliability of the breath machine used to test his breath alcohol level was unreliable because the state laboratory division of the department of health (SLD) had no current year information available regarding proficiency tests conducted on the breath machine used to test defendant's breath, evidence that defendant's breath alcohol test resulted in a reading of 0.10, when viewed in the light most favorable to the verdict, was sufficient to support defendant's conviction for per se DWI, notwithstanding defendant's attack on the reliability of the breath testing machine. State v. Hall, 2016-NMCA-080.

Evidence supporting finding of driving while intoxicated. — Substantial evidence supported defendant's conviction for driving while intoxicated despite consideration of the duress defense. State v. Rios, 1999-NMCA-069, 127 N.M. 334, 980 P.2d 1068, cert. denied, 127 N.M. 390, 981 P.2d 1208.

IX. SENTENCING.

Retroactive application of change of credit for time served would be unconstitutional. — Where, in 2004, defendant pleaded guilty to a fourth-degree aggravated DWI; in 2007, defendant was arrested for another DWI in violation of the 2004 probation conditions; in 2004, Section 66-8-102 NMSA 1978 gave defendant full credit for time served on probation; and in 2007, the statute gave defendant no credit for time served on probation, the 2007 no-credit statutory amendment did not apply to defendant's probation revocation for the 2004 offense because the retroactive application of the 2007 no-credit version of Section 66-8-102 NMSA 1978 to defendant for the 2004 offense would increase the punishment allowable for the 2004 offense which would violate the ex post facto clauses of the United States and New Mexico constitutions. State v. Ordunez, 2012-NMSC-024, 283 P.3d 282, rev'g 2010-NMCA-095, 148 N.M. 620, 241 P.3d 621.

Failure to impose mandatory sentence. — Where defendant was sentenced for a second offense of driving under the influence of intoxicating liquor or drugs; the metropolitan court sentenced defendant to incarceration, but failed to impose the mandatory requirement that defendant serve community hours and pay a fine, neither the district court nor the metropolitan court had authority to impose an additional period of incarceration or to impose new penalties after defendant completed the original sentence. State v. Padilla, 2011-NMCA-029, 150 N.M. 344, 258 P.3d 1136.

Prior convictions. — All prior DWI offenses which could be used to enhance a defendant's DWI sentence must be proved by the state at the sentencing hearing. State v. Diaz, 2007-NMCA-026, 141 N.M. 223, 153 P.3d 57.

Right to challenge validity of prior convictions. — A defendant has a right, during a sentence enhancement proceeding, to challenge a prior conviction by guilty plea for lack of subject matter jurisdiction. State v. Nash, 2007-NMCA-141, 142 N.M. 754, 170 P.3d 533.

Offender not subject to both felony DWI provision and habitual offender statute. — Defendants convicted of the offense of felony DWI under Subsection G are not subject to sentence enhancement under both the felony DWI provision and the habitual offender provision, Section 31-18-17 NMSA 1978. State v. Anaya, 1997-NMSC-010, 123 N.M. 14, 933 P.2d 223; State v. Gonzales, 1997-NMSC-050, 124 N.M. 171, 947 P.2d 128.

Offender not subject to both felony DWI provision and aggravation statute. — The maximum sentence for felony DWI under Subsection G cannot be enhanced by the aggravation provisions of Section 31-18-15.1 NMSA 1978. State v. Coyazo, 2001-NMCA-018, 130 N.M. 428, 25 P.3d 267, cert. denied, 130 N.M. 254, 23 P.3d 929.

Use of prior uncounseled convictions to enhance sentence. — A prior uncounseled misdemeanor DWI conviction that did not result in a sentence of imprisonment could be used for enhancement under this section, and such use did not violate the New Mexico Constitution. State v. Woodruff, 1997-NMSC-061, 124 N.M. 388, 951 P.2d 605; State v. Aragon, 1997-NMSC-062, 124 N.M. 399, 951 P.2d 616; State v. Hosteen, 1997-NMSC-063, 124 N.M. 402, 951 P.2d 619.

Immunity from future enhancements of sentencing. — Absent a showing that defendant's plea of guilty or no contest to a charge of DWI was expressly conditioned upon a promise that his conviction would not be used in the future to aggravate subsequent DWI sentences, he is not entitled to a claim of immunity from future enhancement of subsequently committed DWI offenses. State v. Gaede, 2000-NMCA-004, 128 N.M. 559, 994 P.2d 1177, cert. denied, 128 N.M. 688, 997 P.2d 820.

Presentence confinement credits. — Trial court must award presentence confinement credit to first-time offenders and has discretionary authority to grant presentence confinement credit, for a defendant who has been convicted of a second or third offense of driving under the influence. State v. Calvert, 2003-NMCA-028, 133 N.M. 281, 62 P.3d 372, cert. denied, 133 N.M. 413, 63 P.3d 516.

Effect of municipal ordinance violations. — A person convicted of violating a municipal ordinance prohibiting driving while intoxicated can be treated as having a prior offense under this section for purposes of sentencing a defendant for a second or subsequent conviction. However, when the defendant was convicted for three prior violations of a municipal ordinance, the mandatory jail term for fourth offenders did not necessarily apply, as the language is unclear as to whether this section encompasses municipal ordinance convictions. State v. Russell, 1991-NMCA-123, 113 N.M. 121, 823 P.2d 921.

Proof of prior convictions. — An order in the form of a judge's handwritten notations on a complaint was sufficient to prove prior convictions for driving while intoxicated. State v. Sedillo, 2001-NMCA-001, 130 N.M. 98, 18 P.3d 1051, cert. quashed, 131 N.M. 221, 34 P.3d 610.

Validity of prior DWI guilty pleas. — Where the state met its burden of showing that defendant voluntarily signed waivers of his right to counsel at the time of guilty pleas resulting in prior DWI convictions, the court did not err in relying on those convictions to enhance defendant's DWI conviction from a misdemeanor to a felony. State v. Gonzales, 1997-NMSC-050, 124 N.M. 171, 947 P.2d 128.

Use of out-of-state conviction to enhance penalty. — The phrase "under this section" does not include within its purview out-of-state convictions; therefore, only those valid prior DWI convictions obtained in New Mexico courts may be considered for purposes of criminal enhancement penalties. State v. Nelson, 1996-NMCA-012, 121 N.M. 301, 910 P.2d 935, superseded by statute, State v. Lewis, 2008-NMCA-070, 144 N.M. 156, 184 P.3d 1050.

Presentence confinement credit for multiple offenders. — Because the legislature provides in this section that, for a first DWI offender, time spent in jail prior to conviction is to be credited against the offender's sentence, the legislature's silence as to second and third offenses implies an intent to afford courts discretion to grant credit to second and third offenders. State v. Martinez, 1998-NMSC-023, 126 N.M. 39, 966 P.2d 747.

Suspending or deferring impoundment of vehicle. — Magistrate court had the discretion to suspend or defer the impoundment of the defendant's vehicle after his conviction of a second offense of driving under the influence. State v. Barber, 1989-NMCA-058, 108 N.M. 709, 778 P.2d 456.

Presentence confinement credit not allowed for voluntary inpatient program. — Presentence confinement credit against a felony DWI jail sentence may not be given for time spent in an inpatient alcohol treatment program, where the state did not require defendant's participation in the program and exercised no control over him while he was in the program. State v. Clah, 1997-NMCA-091, 124 N.M. 6, 946 P.2d 210, cert. denied, 123 N.M. 626, 944 P.2d 274.

Presentence confinement credit for in-patient alcohol treatment can only be applied to a defendant's sentence of alcohol treatment and not a jail sentence. State v. Martinez, 1998-NMSC-023, 126 N.M. 39, 966 P.2d 747.

Offset of time spent in post-traumatic unit after sentencing. — In sentencing for felony DWI, the trial court had discretion to allow an offset for the postsentence time defendant spent in a post-traumatic stress unit at a veteran's hospital, so long as it did not impinge on the mandatory portion of the sentence required by Subsection G. State v. Clah, 1997-NMCA-091, 124 N.M. 6, 946 P.2d 210, cert. denied, 123 N.M. 626, 944 P.2d 274.

For purposes of DWI sentencing, proof beyond a reasonable doubt is not required to prove prior DWI convictions; a preponderance of the evidence is sufficient. State v. Bullcoming, 2008-NMCA-097, 144 N.M. 546, 189 P.3d 679; aff'd in part, rev'd in part, 2010 NMSC-007, 147 N.M. 487, 226 P.3d 1, cert. granted, 131 S. Ct. 62, 177 L.Ed. 2d 1152.

Insufficient evidence of prior convictions. — Where the state filed an information alleging that defendant had eight prior convictions for DWI; although the document indicated that certified copies of the abstracts of record or judgments and sentences associated with the prior convictions were attached as exhibits, the exhibits were never filed; the state presented a copy of a prior judgment and sentence which was filed in the same judicial district and which reflected that the court had previously determined that defendant had admitted to at least six prior convictions for DWI as a part of a plea agreement; the state asked the court to take judicial notice of its own records; and the court took judicial notice that the court had found that defendant had at least six prior DWI convictions, the state failed to make a prima facie showing of any prior DWI convictions. State v. Lopez, 2009-NMCA-127, 147 N.M. 364, 223 P.3d 361, cert. denied, 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257.

Offenses included in a plea agreement. — A plea agreement that includes two separate DWI offenses, which are later combined in one judgment and sentence should be considered as two DWI convictions for purpose of sentencing. State v. Yazzie, 2009-NMCA-040, 146 N.M. 115, 207 P.3d 349, cert. denied, 2009-NMCERT-003, 146 N.M. 603, 213 P.3d 507.

This section requires that equivalent out-of-state convictions be used to enhance a defendant's sentence for repeated DWI convictions. State v. Lewis, 2008-NMCA-070, 144 N.M. 156, 184 P.3d 1050, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.

Test for equivalent statutes. — To determine whether two statues are equivalent for purposes of using an out-of-state conviction to enhance a defendant's sentence for repeated DWI convictions, the focus is on whether the elements of the statutes are equivalent as to the degree of impairment prohibited by the statutes. State v. Lewis, 2008-NMCA-070, 144 N.M. 156, 184 P.3d 1050, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.

Penalties for repeat offenders. — The legislature clearly intended to amend and increase the penalties for repeat offenders in this section. State v. Smith, 2004-NMSC-032, 136 N.M. 372, 98 P.3d 1022.

DWI sentencing is plainly governed by this section and not the Criminal Code or Criminal Procedure Act. State v. Smith, 2004-NMCA-026, 135 N.M. 162, 85 P.3d 804, cert. granted, 2004-NMCERT-001, 135 N.M. 160, 85 P.3d 802, rev'd, 2004-NMSC-032, 136 N.M. 372, 98 P.3d 1022.

Electronic monitoring system. — Felony DWI defendants may be sentenced to a "jail term" in a county detention center electronic monitoring program, as that program is equivalent to official confinement. State v. Frost, 2003-NMCA-002, 133 N.M. 45, 60 P.3d 492, cert. denied, 133 N.M. 126, 61 P.3d 835.

Concurrent jurisdiction is that jurisdiction exercised by different courts, at the same time, over the same subject matter and within the same territory and wherein litigants may, in the first instance, report to either court indifferently. 1965 Op. Att'y Gen. No. 65-202.

District and municipal courts can have jurisdiction over second offense. — District courts, and also municipal courts if the charge arises under a municipal ordinance, have jurisdiction over second offense of driving while intoxicated. 1972 Op. Att'y Gen. No. 72-13.

Magistrate courts have jurisdiction over second or subsequent offenses. — The specific provision of this section (relating to magistrate courts having concurrent jurisdiction for first offenses) is no longer required to confer jurisdiction on the magistrate courts and it should not be read as a bar to magistrate courts' jurisdiction over second or subsequent offenses. 1975 Op. Att'y Gen. No. 75-45.

Law reviews. — For comment on Valencia v. Strayer, 73 N.M. 252, 387 P.2d 456 (1963); Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963), see 4 Nat. Resources J. 168 (1964).

For article, "A Different Kind of Symmetry," see 34 N.M.L. Rev. 263 (2004).

For article, "Death in the Desert: A New Look at the Involuntary Intoxication Defense in New Mexico," see 32 N.M.L. Rev. 243 (2002).

For article, " 'To Purify the Bar': A Constitutional Approach to Non-Professional Misconduct," see 5 Nat. Resources J. 299 (1965).

For comment, "Two-Tiered Test for Double Jeopardy Analysis in New Mexico," see 10 N.M.L. Rev. 195 (1979-80).

For annual survey of New Mexico criminal procedure, see 16 N.M.L. Rev. 25 (1986).

For annual survey of New Mexico criminal law and procedure, see 19 N.M.L. Rev. 655 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 296 to 300, 302, 303, 305 to 311, 375 to 380, 384.

Conflict between statutes and local regulations as to intoxication of driver, 21 A.L.R. 1212, 64 A.L.R. 993, 147 A.L.R. 522.

Arrest without warrant for driving automobile while intoxicated, 42 A.L.R. 1512, 49 A.L.R. 1400, 68 A.L.R. 1374, 142 A.L.R. 555.

Constitutionality and effect of statute relating to civil liability of person driving automobile while under influence of liquor, 56 A.L.R. 327.

Necessity and sufficiency of indictment for driving while intoxicated, 68 A.L.R. 1374.

Driving while intoxicated as reckless driving, where driving while intoxicated is a separate offense, 86 A.L.R. 1274, 52 A.L.R.2d 1337.

Admissibility and weight of evidence based on scientific test for intoxication or presence of alcohol in system, 127 A.L.R. 1513, 159 A.L.R. 209.

Degree or nature of intoxication for purposes of statute or ordinance making it a criminal offense to operate an automobile while in that condition, 142 A.L.R. 555.

Admissibility, in vehicle accident case, of evidence of opposing party's intoxication where litigant's pleading failed to allege such fact, 26 A.L.R.2d 359.

Admissibility of evidence showing plaintiff's antecedent intemperate habits, in personal injury motor vehicle accident action, 46 A.L.R.2d 103.

"Motor vehicle" within law against driving while intoxicated, 66 A.L.R.2d 1146.

Intoxication, unconsciousness, or mental incompetency of person as affecting his status as guest within automobile guest statute or similar common-law rule, 66 A.L.R.2d 1319.

Construction and application of statutes creating presumption or other inference of intoxication from specified percentages of alcohol present in system, 16 A.L.R.3d 748.

Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 A.L.R.3d 1373.

Driving while under the influence or when addicted to use of drugs as criminal offense, 17 A.L.R.3d 815.

Liability based on entrusting automobile to one who is intoxicated or known to be excessive user of intoxicants, 19 A.L.R.3d 1175.

Application, to operation of motor vehicle on private property, of legislation making drunken driving a criminal offense, 29 A.L.R.3d 938.

Admissibility under state law of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456.

What constitutes driving, operating or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance, 93 A.L.R.3d 7.

Duty of law enforcement officer to offer suspect chemical test under implied consent law, 95 A.L.R.3d 710.

Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 A.L.R.4th 1194.

Reckless driving as lesser included offense of driving while intoxicated or similar charge, 10 A.L.R.4th 1252.

Destruction of ampoule used in alcohol breath test as warranting suppression of result of test, 19 A.L.R.4th 509.

Drunk driving: motorist's right to private sobriety test, 45 A.L.R.4th 11.

Failure to restrain drunk driver as ground of liability of state or local government unit or officer, 48 A.L.R.4th 320.

Snowmobile operation as DWI or DUI, 56 A.L.R.4th 1092.

Validity, construction, and application of statutes directly proscribing driving with blood-alcohol level in excess of established percentage, 59 A.L.R.4th 149.

Horizontal gaze nystagmus test: use in impaired driving prosecution, 60 A.L.R.4th 1129.

Social host's liability for injuries incurred by third parties as a result of intoxicated guest's negligence, 62 A.L.R.4th 16.

Passenger's liability to vehicular accident victim for harm caused by intoxicated motor vehicle driver, 64 A.L.R.4th 272.

Driving while intoxicated: "choice of evils" defense that driving was necessary to protect life or property, 64 A.L.R.4th 298.

Cough medicine as "intoxicating liquor" under DUI statute, 65 A.L.R.4th 1238.

Horseback riding or operation of horse-drawn vehicle as within drunk driving statute, 71 A.L.R.4th 1129.

Operation of bicycle as within drunk driving statute, 73 A.L.R.4th 1139.

Operation of mopeds and motorized recreational two-, three- and four-wheeled vehicles as within scope of driving while intoxicated statutes, 32 A.L.R.5th 659.

Intoxication of automobile driver as basis for awarding punitive damages, 33 A.L.R.5th 303.

Applicability, to operation of motor vehicle on private property, of legislation making drunken driving a criminal offense, 52 A.L.R. 5th 655.

Admissibility of hospital records under Federal Business Records Act (28 USC § 1732(a)), 9 A.L.R. Fed. 457.

Assimilation, under assimilative crimes act (18 U.S.C.A. § 13), of state statutes relating to driving while intoxicated or under influence of alcohol, 175 A.L.R. Fed. 293.

61A C.J.S. Motor Vehicles §§ 625(1), 628.

Denial of accused's request of initial contact with attorney drunk driving cases. 109 A.L.R.5th 611.

Vertical gaze nystagmus test, use in impaired driving prosecution. 117 A.L.R.5th 491.

Admissibility and sufficiency of extrapolation evidence in DUI prosecutions. 119 A.L.R 5th. 379.

Excessiveness or inadequacy of damage awards against drunk drivers. 14 A.L.R.6th 263.

Claim of diabetic reaction or hypoglycemia as defense in prosecution for driving under influence of alcohol or drugs. 17 A.L.R.6th 757.

Validity, construction, and application of state "zero tolerance" laws relating to underage drinking and driving. 34 A.L.R.6th 623.

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