What Is an Aggravated DWI in New Mexico?

Like all states, New Mexico makes it a crime to drive while drunk or impaired by drugs. Some states call this driving under the influence (DUI), but the state of New Mexico uses the term driving while intoxicated (DWI). The state's laws include a "per se" violation that is based on the driver's blood alcohol concentration (BAC) level and also on a standard "under the influence" violation. Certain circumstances can change the regular offense into an aggravated DWI charge.

Anyone getting behind the wheel in this state should first get an overview of the law, including the supplemental penalties for an aggravated offense.

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New Mexico's law regarding drunk or drugged driving, Driving Under the Influence of Intoxicating Liquor or Drugs is published at Chapter 66 of the Motor Vehicles Code, Article 8, Section 66-8-102. Commentators refer to the law and the crime as a DWI or a DUI. Like other state provisions, this law makes it a violation for a driver to operate a vehicle while under the influence of, or impaired by, alcohol or drugs. This includes any type of intoxicating liquor, including familiar drinks like beer and wine, as well as medicines that include alcohol.

The statute also makes it a violation if the driver is found to have a BAC over the legal limit. This is based on chemical testing and does not require any additional evidence of impairment, which makes impairment easier to prove. An adult driver will get a per se DWI if their BAC is 0.08 percent or higher; a commercial driver is liable if their BAC is 0.04 percent or higher; and drivers under the age of 21 violate the law if their BAC is 0.02 percent or higher.

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Anyone convicted of a DWI in New Mexico is guilty of a crime, and criminal penalties apply. These include potential jail time, fines, loss of driving privileges, mandated community service and participation in substance abuse education. Many New Mexico drivers are aware of regular DWI offenses and penalties, but not all know that certain circumstances can make the crime of drunk/drugged driving a more serious one with greater penalties. These are called aggravated DWIs in New Mexico.

A person can commit an aggravated DWI in a variety of ways. Some of these are not surprising, while others can be unexpected. The three most common ways of getting an aggravated DWI charge are refusing to take a chemical test, driving with an extremely high BAC level and causing an accident that injures another person.

Since all per se offenses depend on a driver's taking a chemical test, such as a breathalyzer, the state makes it a requirement. The state's implied consent law conditions the privilege of driving on New Mexico roads to a driver's consent to take a chemical test when stopped for a drunk driving offense. Explicit, personal consent is not required; the statute sets out implied consent to which an individual agrees automatically by simply driving on the state's roads.

When a driver is stopped by law enforcement for a DWI and refuses to take a breathalyzer test, they violate this law. This makes a DWI charge an aggravated DWI.

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The legal BAC limit for a regular driver is under 0.08 percent. If the driver tests at 0.08 percent or higher BAC, they are charged with a per se DWI criminal offense. Some drivers not only hit the 0.08 percent limit, but test well over that. This means that they have a greater amount of alcohol in their system, making them less capable of driving safely and even more likely to harm others.

New Mexico recognizes this and sets 0.16 percent as the legal BAC limit for an aggravated DWI charge. Anyone who is stopped by the police and tests at a 0.16 percent or higher BAC is charged with an aggravated DWI.

A primary motivation for the enactment of DWI laws is the state's desire to protect other drivers as well as pedestrians from bodily injury caused by drunk or drugged drivers. According to the New Mexico Motor Vehicle Division, alcohol consumption plays a role in some 40 percent of all fatal traffic crashes.

If a drunk driver kills another person, they can be charged with the felony of vehicular manslaughter. If they cause great bodily harm, the driving offense is upgraded to aggravated DWI, with additional penalties.

The New Mexico statutes set out penalties for aggravated DWIs that supplement the penalties for a regular DWI. In every case, mandatory jail sentences are longer, and when it comes to refusal of a chemical test, license revocation is an added punishment.

When a person is stopped for drunk driving, the law enforcement officer will request that they take a breathalyzer test. If they refuse, the officer will explain the penalty for refusing, and if the driver still refuses, those penalties are imposed.

The Motor Vehicles Division revokes the person's driver's license for one year for a first offense, two years for a second offense and three years for a third offense. Once the driver regains the right to drive, they are subject to a period of driving with an ignition interlock device (IID) attached to their vehicle for the same period of time for which their license was revoked. This is a machine that prevents the car from starting unless the driver blows into the breathalyzer-type device to prove that they are not intoxicated.

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In addition, minimum jail time is increased. This is true for every type of aggravated DWI violation, whether refusal to test, BAC of 0.16 percent or above or causing serious bodily injury.

For a first-time DWI offender, the court usually does not assign jail time, although it can issue a sentence of up to 48 hours and/or a $500 fine and community service. In the case of an aggravated DWI, the first offender can expect a minimum of 48 hours of mandatory jail time.

For a second offender, the mandatory jail time goes up to 96 hours plus a fine of between $500 and $1,000. With an aggravated DWI, the offender can count on an aggravated enhancement of an additional 96 hours of mandatory jail time.

For a third DWI offense in New Mexico, the standard minimum jail time is 30 days, with a fine of between $750 and $1,000. For an aggravated DWI, the court must add 60 more days to the mandatory jail period. Nothing prevents the court from imposing a sentence over the minimum either.

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These mandatory minimum sentences are just that – mandatory. A judge must impose mandatory jail sentences and does not have the option of allowing the driver convicted of an aggravated-DWI to get off without spending those additional hours or days in jail.

In addition, judges usually have a range of options for jail sentences and fines. They are perfectly justified in using the aggravated DWI charge as a reason to impose sanctions at the more serious end of the scale.

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