2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Section 66-8-107 - Implied consent to submit to chemical test.

A. Any person who operates a motor vehicle within this state shall be deemed to have given consent, subject to the provisions of the Implied Consent Act [66-8-105 NMSA 1978], to chemical tests of his breath or blood or both, approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978 as determined by a law enforcement officer, or for the purpose of determining the drug or alcohol content of his blood if arrested for any offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while under the influence of an intoxicating liquor or drug.

B. A test of blood or breath or both, approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978, shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle within this state while under the influence of intoxicating liquor or drug.

History: 1953 Comp., § 64-8-107, enacted by Laws 1978, ch. 35, § 515; 1979, ch. 71, § 8; 1985, ch. 178, § 3; 1985, ch. 187, § 1; 1993, ch. 66, § 9.

The 1993 amendment, effective January 1, 1994, inserted "or both, approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978" in Subsections A and B, substituted "alcohol content" for "alcoholic content" in Subsection A, and deleted "any" preceding "drug" at the end of Subsection A.

Applicability. — Subsection A of Section 66-8-107 NMSA 1978 applies to a sixteen-year-old person who drives a vehicle in New Mexico. State v. Randy J., 2011-NMCA-105, 150 N.M. 683, 265 P.3d 734, cert. denied, 2011-NMCERT-009, 269 P.3d 903.

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.

Compliance with regulations. — Showing that machine had been calibrated within seven days previous to test of defendant was sufficient compliance with regulation requiring calibration every seven days for admissibility purposes. State v. Montoya, 1999-NMCA-001, 126 N.M. 562, 972 P.2d 1153.

Termination of test. — When a subject is willing to provide breath samples, it is incumbent upon the officer administering the test to comply with applicable scientific laboratory division regulations, which require that multiple breath samples be taken unless the test subject declines or is physically incapable of consent, by continuing the test to its required conclusion and the inability of the subject to blow into the breath test machine is not incapacity to consent to a test. State v. Ybarra, 2010-NMCA-063, 148 N.M. 373, 237 P.3d 117.

Where defendant consented to take a breath-alcohol test; the first sample registered .22 grams of alcohol; defendant had difficulty giving enough breath on the first test; after defendant indicated that defendant had asthma and requested the use of an inhaler, the officer was concerned whether defendant would be able to give a second sample; because defendant was in handcuffs, the officer held defendant's inhaler for defendant to use; a second breath sample resulted in the machine registering an error message indicating "Range Exceeded"; the officer decided to terminate the testing and not to obtain a blood draw; there was no evidence that defendant was unable to complete a breath test or that the inhaler had any effect on the test machine; and the scientific laboratory division regulations required multiple breath samples be taken unless the test subject declined or was physically incapable of consent, the officer's termination of the test was not justified and the results of the first breath sample were not admissible. State v. Ybarra, 2010-NMCA-063, 148 N.M. 373, 237 P.3d 117.

A defendant is not entitled to Miranda warnings prior to being advised and tested pursuant to the Implied Consent Act. City of Rio Rancho v. Mazzei, 2010-NMCA-054, 148 N.M. 553, 239 P.3d 149, cert. denied, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1048.

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.

Valid consent. — Where defendant was arrested for DWI at a hospital; after defendant's arrest, defendant was asked numerous times if defendant would consent to a blood draw and defendant refused; and after defendant was released from the hospital emergency room, the arresting officer explained to defendant that if defendant did not consent to the blood draw, defendant would be charged with aggravated DWI and the consequences of a conviction; defendant then consented to a blood draw; and defendant was not forcibly tested or coerced to drive a vehicle, defendant's consent to the blood draw was voluntary. State v. Slayton, 2009-NMSC-054, 147 N.M. 340, 223 P.3d 337.

Use of unsynchronized time devices to determine the deprivation period. — Where the arresting officer determined the time of the beginning of the deprivation period by the computer-aided dispatch system and determined the time of the end of the deprivation period by the clock on the Intoxilyzer machine; and the arresting officer testified that the two time devices were not synchronized and that, based on the officer's experience, the time on the two devices were very close if not to the same minute, the court did not abuse its discretion in admitting defendant's breath-alcohol test results into evidence. State v. Thompson, 2009-NMCA-076, 146 N.M. 663, 213 P.3d 813, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.

Consent to blood test. — Where police officer advised defendant of the Implied Consent Act, defendant asked to speak to an attorney, the officer then advised defendant that he did not have a right to speak to an attorney under the Implied Consent Act, and defendant thereafter consented to the blood draw, the court properly concluded that defendant did not refuse consent or refuse the blood draw. State v. Ross, 2007-NMCA-126, 142 N.M. 597, 168 P.3d 169, cert. granted, 2007-NMCERT-009, 142 N.M. 715, 169 P.3d 408.

Implied consent violates neither due process nor equal protection. — Implied Consent Act (Sections 66-8-105 to 66-8-112 NMSA 1978), framed upon the premise that when a person obtains a license to operate a motor vehicle, he impliedly consents to the sobriety test, violates neither due process nor equal protection. In re McCain, 1973-NMSC-023, 84 N.M. 657, 506 P.2d 1204.

Double jeopardy does not bar DWI prosecution after license revocation. — An administrative driver's license revocation under the Implied Consent Act 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.

Provisions of Implied Consent Act in essence declare that the driver of a motor vehicle in this state impliedly consents to a blood alcohol test, when arrested for any offense allegedly committed while under the influence of intoxicating liquor, which implied consent cannot be withdrawn under certain circumstances, and upon refusal, no test shall be administered, but the driver's license can be revoked. State v. Richerson, 1975-NMCA-027, 87 N.M. 437, 535 P.2d 644, cert. denied, 87 N.M. 450, 535 P.2d 657.

Subsequent consent rule adopted. — A subsequent change of mind can nullify a driver's initial refusal to take a blood-alcohol test and thus can cure an initial refusal. A driver will be permitted to rescind this initial refusal if the driver can prove the five elements of the test. The test standard is measured by the driver's reasonable ability to comprehend the situation and encourages the driver to recant almost immediately, but never after more than a matter of minutes. In re Suazo, 1994-NMSC-070, 117 N.M. 785, 877 P.2d 1088.

Lawful arrest is essential introductory step to implied consent provisions. Results adduced from sobriety tests not preceded by such an arrest or by actual consent are condemned and held to be inadmissible evidence, and the trial court erred in not suppressing the results of the defendant's blood alcohol test taken without his consent and while he was not under arrest under the Implied Consent Act (Sections 66-8-105 to 66-8-112 NMSA 1978). State v. Richerson, 1975-NMCA-027, 87 N.M. 437, 535 P.2d 644, cert. denied, 87 N.M. 450, 535 P.2d 657.

In general, the Implied Consent Act requires that in order to be tested a suspect must first be placed under arrest. An exception to requiring a formal arrest prior to administration of a blood alcohol test is when the defendant is unconscious. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, cert. denied, 111 N.M. 529, 807 P.2d 227, overruled in part on other grounds by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595.

Refusal to take test. — By failing to submit to a breath test requested by the police officer, the defendant's actions constituted a refusal under the law, irrespective of his offer to take the test on another machine at the police station. Fugere v. State Taxation & Revenue Dep't, 1995-NMCA-040, 120 N.M. 29, 897 P.2d 216, cert. denied, 119 N.M. 771, 895 P.2d 671.

A motorist cannot refuse to take a chemical test of breath or blood designated by law enforcement merely because he believes such tests are unreliable. Fugere v. State Taxation & Revenue Dep't, 1995-NMCA-040, 120 N.M. 29, 897 P.2d 216, cert. denied, 119 N.M. 771, 895 P.2d 671.

A motorist does not have a due process right to choose the chemical test administered to him even though he believes that the test chosen by the police officer is unreliable. Fugere v. State Taxation & Revenue Dep't, 1995-NMCA-040, 120 N.M. 29, 897 P.2d 216, cert. denied, 119 N.M. 771, 895 P.2d 671.

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.

Single breath sample may constitute refusal. — Driver who provides only one breath sample may be convicted of refusing to comply with the Implied Consent Act and the implementing regulations, which provide for two tests. State v. Vaughn, 2005-NMCA-076, 137 N.M. 674, 114 P.3d 354, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

Testing of unconscious person. — The Implied Consent Act does not require a formal arrest of an unconscious person before the administration of a blood-alcohol test. State v. Wyrostek, 1988-NMCA-107, 108 N.M. 140, 767 P.2d 379, cert. denied, 108 N.M. 115, 767 P.2d 354.

Foundation for admitting test results. — Rule 7-607 A(2) of the Rules of Criminal Procedure for the Metropolitan Courts provides for the proper foundation to establish proper calibration of blood alcohol testing devices; its requirements may be met through live testimony, affidavit or certification, or calibration testing records. Bransford v. State Taxation & Revenue Dep't, 1998-NMCA-077, 125 N.M. 285, 960 P.2d 827.

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 test 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.

Proof of test. — The requirement of this section that the breathalyzer test be "approved by the scientific laboratory division of the department of health pursuant to the provisions of Section 24-1-22 NMSA 1978" may be satisfied through the arresting officer's testimony regarding his training, the calibration of the machine, and the administration of the test: the state need not independently prove the scientific reliability of the test as part of its prima facie case. 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 of machine. — In cases where defendant properly preserves the objection, the state must show that the machine used for administering a breath test has been certified by the state laboratories division. State v. Onsurez, 2002-NMCA-082, 132 N.M. 485, 51 P.3d 528, cert. denied, 132 N.M. 551, 52 P.3d 411.

Challenge to chemical test. — A motorist wishing to challenge the reliability of a breath or blood test or the accuracy of the results of such tests must do so at the license revocation hearing within the statutory time period. Fugere v. State Taxation & Revenue Dep't, 1995-NMCA-040, 120 N.M. 29, 897 P.2d 216, cert. denied, 119 N.M. 771, 895 P.2d 671.

Failure to observe defendant for twenty minutes. — A breath alcohol test taken after the defendant was continuously observed for only fifteen minutes was not admissible in her criminal case for driving while intoxicated, because it did not comply with a department of health regulation requiring breath samples to be collected only after the subject has been under continuous observation for at least 20 minutes prior to collection of the first breath sample. State v. Gardner, 1998-NMCA-160, 126 N.M. 125, 967 P.2d 465, cert. denied, 126 N.M. 107, 967 P.2d 447.

Blood sample taken in violation of statutory right must be suppressed. State v. Wilson, 1978-NMCA-073, 92 N.M. 54, 582 P.2d 826.

City ordinance prohibiting driving while intoxicated does not conflict with the provisions of the Implied Consent Act (Sections 66-8-105 to 66-8-112 NMSA 1978). City of Hobbs v. Sparks, 1973-NMCA-082, 85 N.M. 277, 511 P.2d 763, cert. denied, 85 N.M. 265, 511 P.2d 751.

Multiple testing permitted. — The Implied Consent Act, Sections 66-8-105 to 66-8-112 NMSA 1978, permits law enforcement officers who have reasonable grounds to believe that an arrested person has been driving a motor vehicle while under the influence of intoxicating liquor or drugs to direct the administration of multiple or different tests. However, officers should not administer more than one test arbitrarily or without reason. 1991 Op. Att'y Gen. No. 91-13.

A law enforcement officer may request a blood test from a person who has already submitted to a breath test. If the person refuses to submit to the additional test, the person's driver's license is subject to mandatory revocation. 1991 Op. Att'y Gen. No. 91-13.

Law reviews. — For comment, "Implied Consent in New Mexico," see 10 Nat. Resources J. 378 (1970).

For note, "Constitutional Law - Criminal Law - Evidence - Admissibility of a Motorist's Refusal to Take a Breath-Alcohol Test: McKay v. Davis," see 14 N.M.L. Rev. 257 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Snowmobile operation as DWI or DUI, 56 A.L.R.4th 1092.

Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate, 90 A.L.R.4th 155.

Driving while intoxicated: subsequent consent to sobriety test as affecting initial refusal, 28 A.L.R.5th 459.