2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 8 - Crimes, Penalties and Procedure
Section 66-8-111 - Refusal to submit to chemical tests; testing; grounds for revocation of license or privilege to drive.
A. If a person under arrest for violation of an offense enumerated in the Motor Vehicle Code [66-1-1 NMSA 1978] refuses upon request of a law enforcement officer to submit to chemical tests designated by the law enforcement agency as provided in Section 66-8-107 NMSA 1978, none shall be administered except when a municipal judge, magistrate or district judge issues a search warrant authorizing chemical tests as provided in Section 66-8-107 NMSA 1978 upon finding in a law enforcement officer's written affidavit that there is probable cause to believe that the person has driven a motor vehicle while under the influence of alcohol or a controlled substance, thereby causing the death or great bodily injury of another person, or there is probable cause to believe that the person has committed a felony while under the influence of alcohol or a controlled substance and that chemical tests as provided in Section 66-8-107 NMSA 1978 will produce material evidence in a felony prosecution.
B. The department, upon receipt of a statement signed under penalty of perjury from a law enforcement officer stating the officer's reasonable grounds to believe the arrested person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs and that, upon request, the person refused to submit to a chemical test after being advised that failure to submit could result in revocation of the person's privilege to drive, shall revoke the person's New Mexico driver's license or any nonresident operating privilege for a period of one year or until all conditions for license reinstatement are met, whichever is later.
C. The department, upon receipt of a statement signed under penalty of perjury from a law enforcement officer stating the officer's reasonable grounds to believe the arrested person had been driving a motor vehicle within this state while under the influence of intoxicating liquor and that the person submitted to chemical testing pursuant to Section 66-8-107 NMSA 1978 and the test results indicated an alcohol concentration in the person's blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age, shall revoke the person's license or permit to drive or his nonresident operating privilege for a period of:
(1) six months or until all conditions for license reinstatement are met, whichever is later, if the person is twenty-one years of age or older;
(2) one year or until all conditions for license reinstatement are met, whichever is later, if the person was less than twenty-one years of age at the time of the arrest, notwithstanding any provision of the Children's Code [32A-1-1NMSA 1978]; or
(3) one year or until all conditions for license reinstatement are met, whichever is later, if the person has previously had his license revoked pursuant to the provisions of this section, notwithstanding the provisions of Paragraph (1) of this subsection.
D. The determination of alcohol concentration shall be based on the grams of alcohol in one hundred milliliters of blood or the grams of alcohol in two hundred ten liters of breath.
E. If the person subject to the revocation provisions of this section is a resident or will become a resident within one year and is without a license to operate a motor vehicle in this state, the department shall deny the issuance of a license to him for the appropriate period of time as provided in Subsections B and C of this section.
F. A statement signed by a law enforcement officer, pursuant to the provisions of Subsection B or C of this section, shall be sworn to by the officer or shall contain a declaration substantially to the effect: "I hereby declare under penalty of perjury that the information given in this statement is true and correct to the best of my knowledge." The statement may be signed and submitted electronically in a manner and form approved by the department. A law enforcement officer who signs a statement, knowing that the statement is untrue in any material issue or matter, is guilty of perjury as provided in Section 66-5-38 NMSA 1978.
History: 1953 Comp., § 64-8-111, enacted by Laws 1978, ch. 35, § 519; 1979, ch. 71, § 10; 1979, ch. 73, § 1; 1984, ch. 72, § 6; 1985, ch. 178, § 4; 1985, ch. 187, § 2; 1991, ch. 245, § 3; 1993, ch. 66, § 12; 2003, ch. 51, § 13; 2003, ch. 90, § 6; 2005, ch. 269, § 7.
Cross references. — For mandatory revocation of driver's license, see 66-5-29 NMSA 1978.
The 2005 amendment, effective June 17, 2005, changed the period of revocation in Subsection C(1) from ninety days to six months; changed the period of revocation in Subsection C(2) from six months to one year if the person was twenty-one years of age at the time of the arrest; deleted in Subsection C(2), the former provision that the person had not previously has his license revoked pursuant to the provisions of this section; deleted the former reference to the Children's Code in Subsection C(3); and, provided in Subsection F that the statement may be signed and submitted electronically in a manner and form approved by the department.
The 2003 amendment, effective March 28, 2003, in Subsection C, substituted "in the person's blood or breath of eight one hundredths or more" for "of eight one hundredths or more in the person's blood or breath" following "an alcohol concentration"; inserted "four one hundredths or more if the person is driving a commercial motor vehicle or" for "or an alcohol concentration of" following "age or older", and deleted "in the person's blood or breath" preceding "if the person".
Duplicate amendments. — Laws 2003, ch. 51, § 13 and Laws 2003, ch. 90, § 6 enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 90, § 6. See 12-1-8 NMSA 1978.
The 1993 amendment, effective January 1, 1994, substituted "tests" for "test" in the section heading; substituted "twenty-one years" for "eighteen years" in four places in Subsection C; inserted "or until all conditions for license reinstatement are met, whichever is later" in Paragraphs (1), (2) and (3) of Subsection C; substituted "an alcohol concentration of eight one-hundredths or more" for "one-tenth of one percent or more by weight of alcohol" and "an alcohol concentration of two one-hundredths or more" for "five one-hundredths of one percent or more by weight of alcohol", and inserted "or breath" in the introductory paragraph of Subsection C; inserted "the provisions of Paragraph (1) or (2) of this subsection or" in Subsection C(3); inserted present Subsection D; redesignated former Subsection D as present Subsection E; and added Subsection F.
The 1991 amendment, effective October 1, 1991, substituted "department" for "director" in Subsections B, C and D; deleted "is less than eighteen years of age and" following "person" in Paragraph (3) in Subsection C; and made minor stylistic changes in Subsections B and C.
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.
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.
No constitutional right to refuse test. — Because there is no constitutional right to refuse to take a chemical test, the introduction of and comment on a refusal to take such a test does not violate the United States constitution. McKay v. Davis, 1982-NMSC-122, 99 N.M. 29, 653 P.2d 860.
Right is merely not to be forcibly tested. — The right granted by the legislature in Subsection A is merely the right not to be forcibly tested after manifesting refusal. McKay v. Davis, 1982-NMSC-122, 99 N.M. 29, 653 P.2d 860.
Implied Consent Act does not limit the number of permissible tests to one, or any other number. State v. Copeland, 1986-NMCA-083, 105 N.M. 27, 727 P.2d 1342, cert. denied, 104 N.M. 702, 726 P.2d 856.
Sworn statement required. — The statutory requirement of a sworn statement is mandatory and jurisdictional. Stephens v. State Transp. Dep't, 1987-NMCA-095, 106 N.M. 198, 740 P.2d 1182.
Grounds for revocation. — The Implied Consent Act requires that a driver's license shall be revoked when a driver is arrested in this state for an offense enumerated in the Motor Vehicle Code, NMSA 1978, Sections 66-1-1 to 66-8-137.1, the arresting officer has reasonable grounds to believe the driver was driving under the influence, and the driver refuses to take a breath or blood test after the driver has been advised of the consequences of refusal.. This language includes arrests for driving under the influence contrary to Section 66-8-102, as well as other violations of the Motor Vehicle Code. Cordova v. Mulholland, 1988-NMCA-070, 107 N.M. 659, 763 P.2d 368, cert. denied, 107 N.M. 546, 761 P.2d 424.
Execution of the statement. — An officer's failure to properly execute the statement, that is, having the statement either notarized or signed under the penalty of perjury, divested the division of jurisdiction to revoke the defendant's driver's license. The requirement that the officer's statement be under penalty of perjury is mandatory rather than directory. State Transp. Dep't v. Herman, 1987-NMCA-086, 106 N.M. 138, 740 P.2d 132.
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.
Officer need only have reasonable grounds to believe driver intoxicated. — Section requires only that an officer have reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within the state while under the influence of intoxicating liquor and arresting officer had reasonable grounds to believe that defendant was driving while under the influence of intoxicating liquor where he smelled liquor on her person, she was not walking correctly, and she drove her car into a pump on an open driveway of a service station. In re McCain, 1973-NMSC-023, 84 N.M. 657, 506 P.2d 1204.
Affidavit for search warrant. — An officer's affidavit, stating that the defendant's driving history showed there was sufficient evidence to charge him for a "fourth offense or subsequent DWI", established probable cause that the defendant had committed a felony while under the influence of alcohol. State v. Duquette, 2000-NMCA-006, 128 N.M. 530, 994 P.2d 776, overruled by State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376.
DWI can be the underlying felony offense for which there must be probable cause to justify a search warrant under Subsection A. State v. Duquette, 2000-NMCA-006, 128 N.M. 530, 994 P.2d 776, overruled by State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376.
Defendant's refusal to take a chemical test is not required in order to obtain a search warrant under Subsection A. State v. Duquette, 2000-NMCA-006, 128 N.M. 530, 994 P.2d 776, overruled by State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376.
Requirements for search warrant not met. — Where evidence demonstrated that an arrested motorist had not caused death or great bodily injury, or even an accident, and was guilty of, at most, a first offense of driving under the influence of a controlled substance and possession of less than eight ounces of marijuana, both misdemeanors, no search warrant could lawfully have been obtained to compel a test of the motorist's blood. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157 (10th Cir. 2003) appeal after remand 474 F. 3d 733 (10th Cir. 2007).
Exigent circumstances where warrant not obtainable. — Under circumstances where a search warrant could not lawfully be obtained to compel a test of a motorist's blood, a warrantless search could not be justified on the basis of exigent circumstances. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157 (10th Cir. 2003) appeal after remand 474 F. 3d 733 (10th Cir. 2007).
State's interest limited. — New Mexico statutes clearly signal the state's limited interest in coerced testing of the blood of a motorist charged with a petty misdemeanor. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157 (10th Cir. 2003) appeal after remand 474 F. 3d 733 (10th Cir. 2007).
Statement signed under penalty of perjury. — An officer was subject to the penalties under 66-5-38 NMSA 1978 when he signed a statement seeking to revoke driving privileges. Consequently, the statement was signed under the penalty of perjury and thus met the requirement of this section. State Transp. Dep't v. Yazzie, 1991-NMCA-098, 112 N.M. 615, 817 P.2d 1257, cert. denied, 112 N.M. 499, 816 P.2d 1121.
Acquittal of criminal charge does not affect provision's operation. — Defendant's acquittal of the crime of driving while intoxicated in no way affected the proceeding to revoke her driver's license for refusing to submit to a test for determining alcohol content of her blood as such proceeding was entirely separate and distinct from the proceeding to determine her guilt or innocence as to the crime for which she was arrested. In re McCain, 1973-NMSC-023, 84 N.M. 657, 506 P.2d 1204.
Instruction of right of refusal not required. — There is nothing in N.M. Const., art. II, §§ 14 and 15, or in the law or decisions which gives an accused the legal right to an instruction that he has a right to refuse to take a blood alcohol test administered by private individuals prior to arrest. State v. Fields, 1964-NMSC-230, 74 N.M. 559, 395 P.2d 908.
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.
Subsequent consent may cure a prior refusal to be tested, unless the delay would materially affect the test results or prove substantially inconvenient for law enforcement officers to administer. State v. Suazo, 1993-NMCA-039, 117 N.M. 794, 877 P.2d 1097, aff'd in part, 1994-NMSC-070, 117 N.M. 785, 877 P.2d 1088.
Evidence of refusal may be excluded in prosecution for driving while intoxicated. — In a prosecution for driving while intoxicated contrary to Section 66-8-102 NMSA 1978, a driver's refusal to take a blood alcohol test is not a relevant circumstance to establish consciousness of guilt. 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.
Record supported hearing officer's conclusion that a driver refused to submit to a breath test, despite his claim of being unable, because of a painful injury to his foot, to blow up the balloon sufficiently to enable the arresting officer to complete the test. State Dep't of Transp. v. Romero, 1987-NMCA-151, 106 N.M. 657, 748 P.2d 30.
DMV not bound by "first offense" adjudication in district court. — District court judgment treating defendant's DWI conviction as a first offense "for all lawful purposes" is not binding on the division of motor vehicles in a license revocation proceeding under Subsection C(3) of this section. Medrow v. State Taxation & Revenue Dep't, 1998-NMCA-173, 126 N.M. 332, 968 P.2d 1195.
Revocation periods overlap and are not truly consecutive or concurrent. — In most cases suspension or revocation periods for conviction of driving while under influence and for refusing to submit to a chemical test will at least partially overlap. But the one-year period of revocation in each instance begins to run from the date of a certain event. Thus, the suspension periods are not consecutive in the usual sense; they are not to be added together to make a total of two years. 1972 Op. Att'y Gen. No. 72-01.
If driver refuses blood test after submitting to breath test, the driver's license of the person who refuses a blood test after submitting to a breath test 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 article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).
For article, "Survey of New Mexico Law, 1982-83: Evidence," see 14 N.M.L. Rev. 161 (1984).
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).
For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 122 to 124, 131.
Request before submitting to chemical sobriety test to communicate with counsel as refusal to take test, 97 A.L.R.3d 852.
Request for prior administration of additional test as constituting refusal to submit to chemical sobriety test under implied consent law, 98 A.L.R.3d 572.
Admissibility in criminal case of blood alcohol test where blood was taken despite defendant's objection or refusal to submit to test, 14 A.L.R.4th 690.
Sufficiency of showing of physical inability to take tests for driving while intoxicated to justify refusal, 68 A.L.R.4th 776.
Driving while intoxicated: subsequent consent to sobriety test as affecting initial refusal, 28 A.L.R.5th 459.
Mental incapacity as justifying refusal to submit to tests for driving while intoxicated, 76 A.L.R.5th 597.
60 C.J.S. Motor Vehicles § 164.16.
