FREQUENTLY ASKED QUESTIONS

If you have been arrested for any criminal charge, including DWI, you should speak with a qualified criminal defense lawyer right away. You probably have many questions that can be answered by an attorney, such as:

• How much will representation cost?
• What is the difference between a DWI and an aggravated DWI?
• I received a Notice of Revocation. Can I still drive?
• If I lose my driving privileges, can I get a limited license to drive to work or go to school?
• They took my license.  What do I use for a photo I.D.?
• Am I going to jail?
• How much are fines and fees if I lose in criminal court?
• If I am found guilty of DWI will I have to get an ignition interlock system installed in my vehicle?
• Aren't they supposed to read me my rights?
• Can I keep it off my record?
• I have heard about the six-month rule. Does that apply to me?
• What can I do to help myself?
• My breath or blood test wasn't taken until much later than when I drove.  How will that affect my case?
• Why am I being charged with DWI if my breath score is below .08? Can I still be convicted?
• If I win my MVD hearing, can I still lose my license?
• How does the MVD hearing differ from court?
• Can my vehicle be seized? If so, when can I get it back?
• If I am revoked, can I just sit out the revocation and then reapply for my license?
• How will I be affected if I have an out-of-state driver's license?

How much will representation cost?

This depends, of course upon the unique circumstances of your case.  Such factors can include any prior convictions, your age, whether your DWI charge is aggravated, whether there was an accident, the method of chemical testing, amount of attorney and staff time expected, etc.  When and where possible, a flat fee for your case will be established so that there is relative certainty for the client as to cost and decisions in your case are made for legal and factual, rather than financial, reasons.

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What is the difference between a DWI and an aggravated DWI?

When your blood alcohol level is between 0.08 and 0.159, you could be charged with DWI.  If your blood alcohol level is 0.16 or above, if you refuse to submit to a complete chemical test of your breath or blood, or cause an accident with injuries, then you could be charged with an aggravated DWI.  Of course, the penalties for an aggravated DWI are more severe, including mandatory jail time if convicted of the aggravated portion of the charge.

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I received a Notice of Revocation. Can I still drive?

Yes, the notice serves as a temporary driver's license for 20 days.  If you or your attorney properly requests an Implied Consent hearing from the MVD within ten days of your arrest, your driving privileges are extended until decided by the hearing officer at the MVD hearing, which must be held within 90 days from the date of your arrest.

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If I lose my driving privileges, can I get a limited license to drive to work or go to school?

No, limited licenses are no longer available to persons who have been subjected to administrative license revocation or are convicted of DWI.  However, all drivers revoked based on a DWI are eligible for ignition interlock licenses, which allow you to drive anywhere, anytime, as long as the proper license is obtained, the vehicle is equipped with an ignition interlock device and the paperwork regarding the interlock is maintained in the car.

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They took my license.  What do I use for a photo I.D.?

DO NOT go to the Motor Vehicle Division (MVD) and get a New Mexico identification card (obtaining such an I.D. card will invalidate your driving privileges!).  Instead, go to the MVD and request a duplicate license as soon as possible after your arrest.  Assuming your driving privileges are not suspended, revoked or denied by New Mexico or any other state, the MVD will issue you a temporary paper license and send you the hard-plastic license in the mail.  This will allow you to have a proper form of identification necessary to travel or conduct regular daily business.  In the meantime, you may also use a passport, military I.D., etc. to travel or conduct such business.

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Am I going to jail?

It depends!  Aggravated DWIs entail mandatory jail time, but with most DWI cases, attorneys can work out alternatives with the court.  Voluntarily putting yourself into an alcohol or drug counseling program before your case is resolved in court is very helpful to both your life and your case.  The judge should take that into account on your case.

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How much are fines and fees if I lose in criminal court?

In Bernalillo County, fines and fees usually total approximately $377.  This amount includes court costs, screening fee, DWI School fee, etc.  Fines of $500 to $1000 can also be imposed.

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If I am found guilty of DWI will I have to get an ignition interlock system installed in my vehicle?

Yes, an ignition interlock system must be installed on all vehicles driven by an offender AND an offender must obtain an ignition interlock license.  The interlock license fee is approximately $50 and the ignition interlock fee is $50 to $100 monthly, plus installation, removal and download fees.

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Aren't they supposed to read me my rights?

Many police agencies have policies not to read a person their Miranda warnings unless they will be interrogated while in custody.

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Can I keep it off my record?

Not unless you obtain an outright win, which means winning the Motor Vehicle Division hearing and the criminal case.  The records will remain available through the MVD, even if the matter is deferred in criminal court.  A deferred DWI conviction can also be used as a prior in a subsequent DWI case to enhance the sentence.  Conditional discharges on DWI cases are, unfortunately, against the law in New Mexico.

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I have heard about the six-month rule. Does that apply to me?

Unless the court orders and/or the parties agree to an extension, the state should begin your trial within 182 days of your arraignment or the filing of a waiver.  The New Mexico Supreme Court modified NMRA Rule 7-506(E), and effective January 15, 2009, if the state fails to do this, then the charges may be dismissed, at the discretion of the trial court, rather than a mandatory dismissal.

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What can I do to help myself?

Time is of the essence!  Consult legal counsel immediately to make sure you don't miss important deadlines.  Consider voluntary alcohol counseling, which may address a serious alcohol dependance problem, or prevent a much bigger problem in the future.

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My breath or blood test wasn’t taken until much later than when I drove.  How will that affect my case?

A significant change in DWI law became effective in April 2007.  The new law states that a person can be found guilty of DWI if they have a blood alcohol content (BAC) of .08 or greater within three hours of driving and the alcohol concentration results from alcohol consumed prior to or while driving.

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Why am I being charged with DWI if my breath score is below .08? Can I still be convicted?

There are three reasons why someone is charged with DWI if their breath score is below .08, any of which can result in a conviction:

1. In New Mexico it is against the law for a person to drive a commercial motor vehicle in this state if the person has a blood alcohol concentration of .04 or more within three hours of driving the commercial motor vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle.
2. Under NMSA 1978 Section 66-8-102(A), it is unlawful for a person who is under the influence of an intoxicating liquor to drive a vehicle.  New Mexico case law allows courts to convict a person for DWI even if the person submits a breath or blood sample which is below the presumptive level of intoxication (.08), if the state can prove beyond a reasonable doubt the person was operating a motor vehicle under the influence of alcohol within three hours of driving and the alcohol impaired the person's ability to operate the motor vehicle even to the slightest degree.
3. A person may be arrested for DWI even if they provide a blood alcohol concentration of below .08 because the officer reasonably believes that the person is operating a motor vehicle under the influence of a drug (other than alcohol) to a degree that renders the person unsafe to drive.

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If I win my MVD hearing, can I still lose my license?

Yes, your license may be revoked if you are ultimately convicted in the criminal case.

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How does the MVD hearing differ from court?

Simply put, in court the finder of fact is a judge or jury and the outcome could be a criminal conviction.  The burden of proof in court is beyond a reasonable doubt.  The MVD hearing, if properly requested, is an administrative hearing that only deals with a person's privilege to drive in New Mexico.  The burden of proof in MVD is whether there is a preponderance of the evidence regarding the issues in the hearing.  The person who decides the MVD hearing is an attorney hired by the Motor Vehicle Division who is limited to considering the issues below:

• Whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs
• Whether the person was arrested
• Whether this hearing is held no later than 90 days after notice of revocation
• Whether:   
  • The person refused to submit to a test upon request of the law enforcement officer
  • The law enforcement officer advised that the failure to submit to a test could result in revocation of the person's privilege to drive
• Whether:   
  • The chemical test was administered pursuant to the provisions of the Implied Consent Act; 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 21 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 21 years of age

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Can my vehicle be seized, and if so, when can I get it back?

Yes, the City of Albuquerque can seize your vehicle; however, it is possible to get it back under certain circumstances and conditions.  The city has the ability to work out agreements to return a seized car to innocent owners and sometimes even the offender.  You or your attorney must timely request a hearing from the city to preserve this opportunity.  Agreements to get vehicles back usually involve boot devices and a significant payment to the city.

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If I am revoked, can I just sit out the revocation and then reapply for my license?

It is no longer an option to sit out the revocation period by not driving during the revocation period and then reinstating your license.  On July 1, 2009 a new law took effect and in order to reinstate your driver's license, you must:

• Pay the $100 total reinstatement fee
• Complete the revocation period
• Satisfy any court-order ignition interlock requirements
• Provide proof of six months of driving with an ignition interlock license with no attempts to circumvent or tamper with the ignition interlock device. You will never be allowed to reinstate unless and until you prove that you have complied with the minimum six-month interlock requirement.

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How will I be affected if I have an out-of-state driver's license?

Even if you have an out-of-state driver's license, your privilege to drive in your home state could be in jeopardy, based on the outcome of the MVD and criminal portions of your case.  It is important that you timely request an Implied Consent hearing within ten (10) days from the date of your arrest.  If you fail to timely request an Implied Consent hearing through MVD or your license is revoked as a result of losing the MVD hearing or based on the criminal conviction, New Mexico's Motor Vehicle Division will create a record for you in their system. The New Mexico MVD then sends that information to your home state, which could honor New Mexico's revocation and/or impose additional consequences based on your home state's law.

When it comes time to reinstate your home state license they may require you to satisfy New Mexico's requirements:

• Serve the revocation period
• Pay the reinstatement fee

At this time, New Mexico's MVD will not require you to provide proof of driving with an ignition interlock device at the end of your revocation period if you are an out-of-state resident.

It is important to know that the only way to ensure that you will retain the ability to drive throughout this process is to be licensed in New Mexico and therefore eligible to obtain and use a New Mexico Ignition Interlock License.  Out-of-state licensees are not eligible to obtain an ignition interlock license and, unless your home state has an alternative, you may be unable to drive during your revocation period.  Thus, we often recommend that prospective clients with out-of-state licenses who can establish residency in New Mexico get a New Mexico license immediately after their arrest.  This will allow you to proceed knowing that, even if you lose your license, you will still be able to drive if you get an ignition interlock device installed and the ignition interlock license.