New Mexico DWI Laws, Penalties, Fines & More

According to New Mexico's Motor Vehicles Division (MVD), alcohol is involved in about 40 percent of all traffic crashes in which someone is killed. In order to make the roads safer, New Mexico has enacted drunk driving laws that carry criminal penalties, like all other states. Anyone who drives in this state needs a clear understanding of the state of New Mexico's drunk driving laws, including the legal BAC limit and the penalties for violations.

New Mexico's drunk driving statute is called "Driving under the influence of intoxicating liquor or drugs." It is found at Chapter 66 of the Motor Vehicles Code, Article 8, Section 66-8-102. The abbreviation for the statute and for the violation is DUI, but many commentators refer to both as DWI. New Mexico's DWI laws are substantially in line with other states' laws, whether termed DWI, DUI or OWI.

Like all state laws, New Mexico's statute makes it illegal for a person to operate a motor vehicle while under the influence of alcohol or drugs. This kind of offense is often referred to as an impairment DWI. It is a violation to drive with a blood alcohol concentration (BAC) that is over the legal limit. This type of offense is often called a "per se" DWI, and most states have similar provisions.

​Read More​: What Is the Statute of Limitations for a DUI/DWI?

Those drivers charged in New Mexico with an impairment DWI violate the first part of the statute: driving under the influence of alcohol or drugs. The actual statutory language makes it illegal to drive under the influence of intoxicating liquor or drugs. Intoxicating liquor means alcohol in any form, including beer, wine, cider, hard liquors and medicated iterations like cough medicine.

"Under the influence" is defined in the statute as meaning imbibing any alcohol or using any drug to a degree that makes the individual incapable of safely driving a vehicle. The test for under the influence sometimes refers to the driver's faculties being impaired by the alcohol or drug.

To convict someone of a impaired driving, the state prosecutor has to show both that the person imbibed liquor or took drugs and that, as a result, the driver's facilities were impaired to the extent that they were no longer capable of driving safely. These elements must be established beyond a reasonable doubt, which is the criminal standard. The prosecutor charged with bringing the case usually presents testimony by the arresting police officers to describe the individual's erratic driving and difficulties performing the roadside sobriety test. The driver can, and sometimes does, offer other reasons explaining the described conduct, leaving the issue to the jury to determine.

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"Per se" is a Latin phrase meaning in and of itself. A per se DWI charge is one that proves itself. This type of drinking/driving violation is based on chemical testing; once a driver tests over the legal limit, the prosecutor need show no other evidence of impairment. The most common way of ascertaining a person's BAC level is the breathalyzer test, a machine the driver blows into that detects alcohol. It is also possible to test BAC with a blood or urine sample

Many people think that the legal limit sets a maximum number of alcohol drinks a person can imbibe before driving, but this is not technically accurate. "Limit" refers to the blood alcohol concentration limit, that is, the percentage of alcohol a person has in their system. While some websites provide estimates of how much a person can drink before their BAC exceeds the legal limit, this is not foolproof. Alcohol affects people differently, and the BAC level depends on a person's size, weight, gender and the amount of food they have eaten that day.

The BAC limit for a regular driver is under 0.08 percent. If their BAC test shows 0.08 percent or higher, the driver has violated the law. For commercial drivers, the BAC limit is 0.04 percent, and for those under the age of 21, the BAC legal limit is 0.02 percent.

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Since the per se DWI is so much easier to prove in court than the impairment DWI, drivers may attempt to thwart the law by refusing to take a chemical test. New Mexico has enacted an implied consent law, based on the idea that driving on roads in the state is a privilege, not a right. Under this law, driving privileges are conditioned on a driver's consent to take a chemical test if requested to do so by law enforcement for DWI purposes. This consent is said to be "implied," since there is no explicit agreement with individual drivers, simply the language of the statute.

​Read More:​ What Will My Probation Officer Do If I Fail an Alcohol Test?

If a driver violates this implied consent law by refusing to take a breathalyzer or blood test when asked, they are subject to an administrative license revocation. This is also the case if their BAC test result is higher than the legal limit. License revocation for a first refusal is for one year , while subsequent refusals result in two-year revocations. The license revocation for testing over the legal BAC limit is a six-month revocation for a first offense and a one-year revocation for subsequent offenses.

These administrative sanctions are set in motion at the time of arrest, and the revocation goes into effect well before a criminal trial on the charge. A driver has 10 days from the date of arrest to ask for a per se DWI hearing at the MVD if they feel they were improperly issued an administrative license revocation. These very limited issues will be treated at the hearing:

• Whether the officer had reasonable grounds to stop the driver.
• Whether the driver was arrested.
• Whether the driver refused the test after a police officer told them it would result in license revocation.
  
• Whether the chemical test was administered properly.
• Whether the driver tested at or above the legal limit.

If the driver doesn't ask for a hearing, or if they lose the hearing, the revocation goes into effect 20 days from the date of arrest. The revocation is independent from the result of the criminal action. It remains in effect regardless of whether the driver is taken to court and/or if the driver is found innocent.

A license revocation can be a real problem for the driver. Without a valid license, they cannot legally drive to work, school or medical appointments or drive family members to any of those essential activities. However, in certain cases, a driver with a revoked license may be eligible for a hardship license, sometimes called an ignition interlock license. This allows the person to drive only to essential places as long as they install an ignition interlock device (IID) on every vehicle they own or use.

An IID is a type of breathalyzer device that attaches to the vehicle. It prevents the car from starting until the person blows into it and establishes that they are not intoxicated. The driver must pay for the installation, using a state-certified IID provider, as well as paying monthly maintenance fees for each IID installed.

Note that a driver is not eligible for this hardship license in New Mexico if their license revocation results from refusing to take a chemical test. Those who do test, but fail, are eligible to apply for the hardship license.

In addition to administrative penalties, a driver is subject to a criminal trial for a DWI violation. If they are found guilty at trial, criminal penalties are imposed. But the applicable sanctions are not uniform; some DUI drivers are penalized more severely than others. The level of punishment depends on two things: the driver's prior DUI history and the circumstances of the incident.

In general, a first offender will get the least severe DUI penalties, and each subsequent DUI conviction will result in increasingly severe sanctions. In addition, certain circumstances are considered "aggravating" and will increase the sanctions. For example, driving with a BAC at 0.16 percent or above is an aggravating circumstance, as is injuring another person as a result of the drunk/drugged driving.

​Read More:​ What In an Aggravated DWI in New Mexico?

Some states have a look-back period for prior DWI offenses. That is, DWIs count as priors for a current charge only if it occurred within a certain period of time, such as five years. New Mexico, however, does not have a look-back period. A DWI is considered a first offense in New Mexico only if the individual has no prior DWI convictions in their lifetime.

When a person is convicted of a first offense, they must get screened for drug and alcohol abuse. The judge considers the screening results when imposing a sentence within these limits:

• ​Jail​: Up to 90 days, but there is no mandated minimum unless the DUI is aggravated, meaning it involved an injury accident or the person's BAC was 0.16 percent or higher. That carries a minimum of 48 hours of jail time.
  
• ​Community service​: At least 24 hours of community service.
• ​Fines​: Up to $500.
• ​Treatment​: Complete an approved DUI educational course.
• ​Criminal license revocation and IID​: One-year driver's license revocation and one-year subsequent IID requirement.
  

A second offense results in more jail time, a higher fine and a longer driver's license suspension:

• ​Jail​: Between four and 364 days in jail, with eight days minimum if aggravated; one to five years probation.
• ​Community service​: At least 48 hours of community service.
• ​Fines​: $500 to $1,000.
  
• ​Treatment​: Complete an approved DUI educational course.
• ​Criminal license revocation and IID​: Two-year revocation and two-year subsequent IID requirement.

A third offense results in even greater penalties:

• ​Jail​: Between 30 days and 364 days; 90-day minimum if aggravated; one to five years probation.
  
• ​Community service​: At least 96 hours of community service.
• ​Fines​: $750 to $1,000.
• ​Treatment​: Complete an approved DUI educational course.
• ​Criminal license revocation and IID​: Three-year revocation period and three-year subsequent IID requirement.

A driver who gets a fourth DUI incurs serious incarceration of between six months and 18 months in prison. Their driver's license can be revoked for life and, should they be permitted to drive again, they will have an IID order for life.

​Read Mor​e: How to Know If a DUI Is on Your Record

Some state's drunk/drugged driving statutes have special rules and administrative violations that apply only to drivers under the age of 21. These are young people who are not permitted to buy or consume alcoholic beverages, so drinking and driving violates two laws. But New Mexico does not have a special set of rules for persons under 21. The state does make underage drinking a crime, and these young drivers can be picked up for underage drinking if they have a BAC of 0.02 percent or above.

​Read More​: How to Get a DUI Removed From Your Driving Record