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Defense to Driving While Intoxicated
10 Jun 2016

Defense to Driving While Intoxicated

Albuquerque DWI Attorney Defines Defenses to Your Case

If you have been charged with DWI in New Mexico, you may think hiring a lawyer is a waste of your money.  What can an Albuquerque DWI attorney possibly do to help you if you tested over the legal limit?  The answer is a lot.


Two criteria are used to determine if a driver is intoxicated.  One method is through a chemical analysis of the breath or blood to determine if the driver’s blood alcohol concentration is above the legal limit.  If a driver is twenty-one years of age or older, the blood alcohol limit is .08. If a driver is under twenty-one, the limit is .02. The limit for commercial vehicle drivers is .04.

The second method is based on the observed impairment of a driver regardless of the driver’s blood- alcohol level. Therefore, a person with a low tolerance to alcohol can be charged and convicted of a DUI when the person’s blood-alcohol level is below the legal limit. However, the reverse is not true. A person with a high tolerance to alcohol who appears to be sober with a blood alcohol level of .08 is guilty of a DUI according to New Mexico law.


If you are charged with a DWI, regardless of the apparent evidence against you, valid defenses exist.  The first line of defense is whether the police made a valid stop.  Before the police can make a stop, they must have a reasonable suspicion that a crime has occurred.   Reasonable suspicion means that a police officer observed behavior, or other evidence, that would lead a reasonable police officer to suspect that a crime was committed.  A police officer must also be able to articulate, or tell, what facts he observed that lead to the reasonable suspicion.

Reasonable suspicion can be obvious. If a car is crossing the center line, reasonable suspicion for a stop exists.  If a car is speeding, reasonable suspicion exists. If a headlight is burned out at night, reasonable suspicion exists.  However, it is equally important to understand what does not constitute reasonable suspicion.  Driving an older car late at night does not constitute reasonable suspicion. Also, being of a particular racial or ethnic group does not constitute reasonable suspicion.

What constitutes reasonable suspicion is a complex legal question.  Your Albuquerque DWI attorney will examine the record to determine if a proper basis for a stop existed. If the stop was not valid, the evidence that was gathered at the stop can be cannot be used against you.


Probable cause means that a reasonable person would think that sufficient evidence existed to believe that a crime was committed.  Roadside tests are used by police officers to determine if there is probable cause for an arrest. A preliminary breath test may be used.  Probable cause may also be based on performance tests administered by a police officer. For example, a law enforcement officer may use physical dexterity and balance tests such as touching your nose and walking heel to toe. He may also tell you to follow a penlight with your eyes and not turn your head.  Regardless of the test, the officer must find probable cause for an arrest. Once arrested, drivers are taken to a location where a breath test can be administered or a blood sample can be drawn.

New Mexico is an implied consent state. If you refuse to take the breath test or the blood test, your driver’s license can be revoked

Just as evidence can be suppressed if the stop is improper, evidence can be suppressed if the court determines that no probable cause existed for the arrest.  Suppose a police officer administered a roadside sobriety test that required a driver to walk heel to toe and the driver failed the test. However, if the police officer administered the test on a sloped road shoulder that drained into a ditch, the driver’s stumble might have had nothing to do with impairment due to alcohol, but rather the reasonable result of walking on a sloped surface.

The more rigorous breath test and blood analysis are typically performed somewhere other than the roadside. Consequently, an arrest typically precedes the breath test or the blood analysis. If the arrest was not valid, the tests that occurred after the arrest can be suppressed and not used against you.


Suppose the stop was valid, probable cause existed for the arrest, and the subsequent breath or blood test indicates your blood alcohol level was over the legal limit. You still may have valid defenses. New Mexico law assumes that blood-alcohol tests administered within three hours of operating a vehicle accurately reflect the driver’s condition at the time he was operating the car. If the test occurred more than three hours after the driver was operating a vehicle, the assumption is not valid. The tests can still be used in court, but the results are not considered conclusive.

Moreover, blood-alcohol tests are conducted by fallible human beings on fallible machines.  A competent DWI attorney will check and make sure the people who administered the tests had the proper credentials, and the machines they used were calibrated and maintained in the proper fashion.


There are valid defenses to a DWI charge. Do not assume your best option is to plead guilty and be done with it. Ray Twohig is an attorney that will fight every inch of the way to insure you are treated fairly and that your rights are protected.  He will review the evidence to see if reasonable suspicion existed for the stop. He will question witnesses to determine if there was probable cause for the arrest. He will review the record to see if the people who conducted the blood-alcohol tests had the proper credentials and that the machines were properly calibrated and maintained.  A DWI conviction is serious; Ray Twohig is an experienced, capable and aggressive attorney who will fight for you.

To schedule your meeting with Albuquerque DWI attorney Ray Twohig, call 505.898.0400.10



  • I have been in the legal field for almost 41 years. I work with lawyers as a consultant all over the US. Ray Twohig is the best of the best. He is very thoughtful, thorough, careful, and... Twohig Law Firm Twohig Law Firm

    - Elliott Oppenheim, MD,JD,LLM Health Law READ MORE


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