Monday, June 11, 2007


In the recent session, the New Mexico legislature passed, and the Governor signed, SJC/SB 440, which amended Section 66-8-102, New Mexico Statutes.

Here in bold face is how the new law reads:

C. It is unlawful for:
(1) a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person’s blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle; or

The legislation apparently was in response to a recent ruling by the New Mexico Supreme Court to the effect that expert opinion testimony was essential in certain prosecutions of DWI under this subsection of the statute, which makes the blood or breath alcohol concentration the test for guilt or innocence.

If the basis of the prosecution is that the accused was driving with a blood alcohol concentration of .08 [details are in the statute], a lay Judge or jury does not have the training, education or experience to take the results of a test made after the stop and arrest, and work backwards and find the concentration at the time of the driving.

Expert testimony on the subject, including absorption rates and elimination rates are essential to find that a driver’s blood alcohol concentration was a certain amount at the time of driving, if the finding is based solely on a test which shows the concentration 15 minutes or more after the driving occurred. The Court ruled, reasonably enough, that if the prosecution proves that the accused was driving, that he had nothing to drink after being stopped from driving, and that the accused has a certain concentration of alcohol say, two hours later, such evidence is not sufficient for a lay fact finder to determine the blood alcohol concentration during the time of driving. The concentration at the time of the test may be due to a rising, or a declining concentration in the bloodstream. A .08 concentration ½ hour, or 1 hour, or 2 or 3 hours after the stop may indicate that the concentration was at least .08 at the time of the stop, but expert testimony, based on the facts, is essential to tell.

The New Mexico prosecutors were concerned with the Court ruling, because they thought that a requirement of an expert witness in many cases would impose an unreasonable burden on the State and clog the already overcrowded Courts. The Legislature came to the rescue.

The solution was to make it a crime to drive after ingesting sufficient alcohol that at some time within three hours after stopping driving, the driver would have a concentration of .08, regardless of whether the concentration was on its way up or down. This is a legislative big step. Conduct which has heretofore been innocent, has become a serious traffic offense. One can get behind the wheel, drive a short distance, drinking spirits, say, and not be under the influence; get stopped, quit drinking and quit driving, and if a test is taken say, 45 minutes later, the results may be .o8 or greater at the time of the test, all the while being under .08 all through the period of driving. One guilty only of open container and drinking while driving, is declared by law to have been DWI.

This new definition of DWI is reminiscent of the old days when the DA had trouble proving rustling of calves, and the Legislature made it an offense to separate a nursing calf from its mother. There is a difference though. In some cases one accused of rustling may have been justified in separating the calf from the mother cow. In the case of this new definition of DWI, can one who drives while or after consuming enough alcohol to obtain a blood alcohol concentration of .08 either during driving or within 3 hours thereafter, say that he did no wrong?

1 comment:

Anonymous said...

Jack, remember the old "in actual physical control" argument used in prosecutions for DWI? Since the latest law, the one you have cited refers only to "driving," is one who is found sleeping in a car along the highway, going to be considered "driving" for the purpose of the statute?
Reminds me of an experience I had with the Santa Fe ordinace dealing with using a cell phone while driving. After a minor crash where the "offender" was using his cell phone at the time of the accident, the police officer did not cite him for using the cell phone because: He wasn't talking on the cell phone, "only checking his messages." Interesting enough, he was a good friend of one of the investigating officers and related
related to the other.
Have a good day!