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To blow or not to blow: Ins and outs of DWI cases

“While I regret the situation altogether, I most definitely regret not taking the Breathalyzer test. I look forward to bringing this matter to a swift and just conclusion.”– N.M. Rep. Monica Youngblood, R-Albuquerque

The state lawmaker from Albuquerque’s northern West Side was arrested on a Sunday night in May after performing poorly on field sobriety tests at a checkpoint on Paseo del Norte in front of the First Baptist Church. In the lapel-cam videos, which you can view at, the 41-year-old spends a lot of time complaining about the cold (the officer says multiple times that it’s 67 degrees), begins each test before the officer tells her to, trips on her boots while walking heel-to-toe and counts backward further and recites more of the alphabet than the officer asks for.

That, and the fact the officer says he smelled alcohol on her, was enough to get her arrested and taken into the DWI trailer.

Where she refused to blow.


So should Youngblood have taken the Breathalyzer? Or was her decision to refuse the right one when considering the legal ramifications?

Those questions have been front and center since the May 20 recordings were released. So I contacted a member of the defense bar to find out the pros and cons of taking or refusing the Breathalyzer if you’re pulled over for DWI.

Fallout for refusing the test

Refusing the Breathalyzer escalates the charge to aggravated DWI, which carries a mandatory 48 consecutive hours in jail if convicted. Even if a defendant did a day in jail after arrest, before release he/she has to go back into jail for 48 consecutive hours more.

The state is free to argue “consciousness of guilt” at trial without violating the Fifth Amendment, meaning the defendant had a guilty mind and so refused the test.

A refusal can revoke a defendant’s license for 1 year, whereas blowing 0.08 percent or greater revokes a license for 6 months (this revocation is separate from the court system and happens under the parallel Motor Vehicle Division administrative hearing).

When to take the test

The presumed level of intoxication in New Mexico is 0.08 percent. There’s a benefit to blowing at 0.07 percent or less rather than refusing the test. If a defendant had only one drink, he/she will likely be below 0.08 percent. Keep in mind that people can still be convicted of DWI with less than a 0.08 percent (the standard is “impaired to the slightest degree”) – but most jurors think less than 0.08 percent is not guilty, and you don’t risk a mandatory 48 hours in jail if you lose at trial.

If a DWI lawyer can get the breath card suppressed (eliminating the consciousness-of-guilt argument) then that’s the best position to be in from a defense standpoint. No guilty mind or chemical evidence.

Reasons to refuse the test

If a defendant blows, he/she is basically giving the state chemical evidence of alcohol in his/her system. Blowing a 0.08 percent or greater is automatically/per se DWI – even up to 3 hours after the stop. The state’s argument of “why would a sober person refuse?” is very persuasive – but not as persuasive as a blood-alcohol concentration (BAC) score of 0.08 percent or greater.

Two drinks for someone weighing less than 150 pounds, especially in close proximity to the stop, puts him/her pretty close to 0.08 percent. Anything over two drinks, and chances are that he/she is over 0.08 percent.

If a defendant admits drinking or an officer smells an alcoholic beverage, he or she will get arrested.

An officer needs only two cues on the walk-and-turn and two cues on the one-leg stand to make a lawful arrest. It’s all based on statistical probabilities. Officers are trained to see slight mistakes during these tests that average folks may not notice. Studies have shown that sober people can fail these tests, although technically one doesn’t pass or fail. A good DWI lawyer can pick apart the field sobriety tests – assuming the defendant does relatively well. With no chemical evidence, a defendant has a shot at not guilty “beyond a reasonable doubt.”

If a defendant is risking his/her job – they drive a company car, have a corporate insurance policy or a commercial driver’s license – then risking 48 hours in jail is more reasonable. You lose your CDL with a 0.04 percent or greater, so even one drink may kill a career.

A politician with a 0.05 percent is still in trouble in the court of public opinion for drinking and getting behind the wheel.

Defendants who are charged with a second or subsequent DWI usually know not to blow. The “aggravated” penalty does not matter, because they get the book thrown at them anyway. The sentence is usually higher than the mandatory time for aggravated DWI. DWI number four and up are felonies in state District Court. There is no legal distinction, in terms of penalties, between blowing or refusing at the felony level.

Bench trial

Even without the chemical evidence, a judge will likely find a defendant guilty at a bench trial; unless the defendant is facing more than six months in jail, he or she is not entitled to a jury trial. You can request one, and the judge might grant the request. With a jury, you have a better shot. On a high-profile case, the judge will usually give the defendant a jury, even on a first DWI.

If it’s not a “triable case,” the state will always drop the “aggravated” if a defendant pleads to the DWI. (A “triable case” is one in which the defense lawyer can keep a straight face. Rolling out of the car and throwing up on the officer’s shoes is probably not a “triable case.”) If you plead, you walk with no jail time, a year probation and a year with an ignition interlock.

Of course, the best option is always, if you have had any alcohol to drink, just don’t drive.

UpFront is a daily front-page news and opinion column. Comment directly to editorial page editor D’Val Westphal at 823-3858 or Go to to submit a letter to the editor.



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