What does “DWI” stand for and is this different from a “DUI” (driving under the influence) in New Mexico?

The acronyms DWI and DUI are used interchangeably when discussing the crime of drinking and driving. DWI stands for Driving While Intoxicated and DUI stands for Driving Under the Influence. In the State of New Mexico most people use the acronym DWI.

When discussing DWI; there are several types of alcohol and drug related offenses in New Mexico. NMSA § 66-8-102 set forth the law regarding DWI in the State of New Mexico.

In New Mexico, it is illegal to drive with a breath or blood alcohol concentration of .08 or more if you’re 21 or over, or .02 if you’re under 21, or .04 if you drive a commercial vehicle.

If your breath or blood test is at or above the legal limit, or if you refuse to take the breath or blood test, you will lose your license, in most cases for a year. You can be convicted of DWI even if the breath or blood test is below the legal limit if it is proven that your ability to drive was impaired to the slightest degree by drugs or alcohol. People who drive after drinking risk heavy fines, higher insurance rates, loss of license and jail sentences.

New Mexico DWI offenses fall into three general categories; (1) simple DWI; (2) per se DWI, and (3) aggravated DWI. Simple DWI is defined as driving while under the influence of drugs or alcohol. Per se DWI is defined as driving while under the influence of drugs and alcohol coupled with a blood alcohol concentration (BAC) of .08 to .15, regardless of whether the individual demonstrates visible signs of intoxication. Aggravated DWI can occur when the driver has a BAC of .16 or above or refuses to submit to chemical testing; chemical testing is usually the breath alcohol test but can also be a blood alcohol test. Aggravated DWI can also occur when a person drives under the influence of drugs or alcohol and commits additional infractions like a car accident.

In New Mexico, the presumed level of impairment is .08 for passenger vehicles and .04 for commercial vehicles. However, the State may still charge and pursue DWI charges when the BAC is less than .08 under the “impaired to the slightest degree” standard applied by the courts. As stated, aggravated DWI consists of driving with a blood alcohol level of .16 or over, causing injury to another while driving under the influence and/or refusing to submit to a blood alcohol test.

Some elements are common to all DWI offenses. The elements simply stated are: (1) under the influence of either intoxicating liquor or drugs (2) while driving a vehicle (3) within the state. A prosecutor will have to prove all of these elements beyond a reasonable doubt to the judge or jury to obtain a DWI conviction against a defendant.

“Under the influence” is not defined in the statute, but case law has defined it as being less able to exercise the necessary “clear judgment and steady hand” to operate a vehicle as a result of consuming intoxicating liquor and/or drugs. This often surprises drivers who are charged with DWI after submitting to a breath test with results under .08

Intoxicating liquor” includes alcohol, distilled spirits, potables and aromatic bitters excluding medicinal bitters. “Drugs” includes prescription medicine as well as illegal substances. The prescription drug issue has caught many by surprise with drivers being charged for all varieties of prescription drugs.

“Driving” includes the actual operation of the vehicle as well as putting oneself in the position to commence operating a vehicle with an intent to drive. In certain cases, where an intoxicated individual merely enters their car to “sleep off” their intoxication, it can be argued that there was no intent to drive and therefore no DWI. Fairly recent case-law has lessened the somewhat nonsensical tendency of some officers to charge people with DWI while they were sleeping in their car for the very purpose of avoiding DWI.

“Vehicle” applies to passenger cars, trucks, commercial vehicles, and any other device used for transportation on public roads. “Vehicle” has been found to apply to farm tractors, 4-wheelers and mopeds for DWI purposes in New Mexico. It should also be noted that New Mexico has specific DWI rules in the Off-Highway Motor Vehicles Act (NMSA §66-3-1001) that apply to vehicles such as snowmobiles and ATVs and the Boating While Intoxicated Act (NMSA § 66-13) that applies to watercrafts.

“Within the state” includes DWI occurring on both public and private property. If it occurs in New Mexico, it may be charged under New Mexico DWI law. However, the Courts hearing the case may differ depending on where it occurred. This issue comes up frequently with DWI on Tribal land or on the military bases.

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