New Mexico Statutes
Part 2 - TRAFFIC OFFENSES
Section 66-8-105 - Implied Consent Act; short title.

Sections 66-8-105 through 66-8-112 NMSA 1978 may be cited as the "Implied Consent Act."
History: 1953 Comp., § 64-8-105, enacted by Laws 1978, ch. 35, § 513.
Cross references. — For limited driving privilege after revocation, see 66-5-35 NMSA 1978.
Implied Consent Act is intended to deter driving while intoxicated and to aid in discovering and removing the intoxicated driver from the highway. McKay v. Davis, 1982-NMSC-122, 99 N.M. 29, 653 P.2d 860; State v. Copeland, 1986-NMCA-083, 105 N.M. 27, 727 P.2d 1342, cert. denied, 104 N.M. 702, 726 P.2d 856.
Constitutionality of punishment for refusing to submit to a warrantless blood draw under the Implied Consent Act. — The fourth amendment to the United States Constitution does not support an enhanced criminal penalty based upon a defendant's refusal to consent to a blood test for the presence of drugs, and therefore 66-8-102(D)(3) NMSA 1978 is unconstitutional to the extent violation of it is predicated on refusal to consent to a blood draw to test for the presence of any drug in the defendant's blood. State v. Storey, 2018-NMCA-009, cert. denied.
Subsequent consent rule adopted. — A subsequent change of mind can nullify a driver's initial refusal to take a blood-alcohol test and thus can cure an initial refusal. A driver will be permitted to rescind this initial refusal if the driver can prove the five elements of the test. The test standard is measured by the driver's reasonable ability to comprehend the situation and encourages the driver to recant almost immediately, but never after more than a matter of minutes. In re Suazo, 1994-NMSC-070, 117 N.M. 785, 877 P.2d 1088.
Act does not govern when law enforcement agencies not involved. — The Implied Consent Act does not govern the taking of blood samples when law enforcement agencies are not involved. It does not protect against an intrusion on the person that is not by, or directed by, a law enforcement officer. Nothing in the act suggests any legislative antipathy to taking and testing blood samples of drivers for purely medical reasons, nor does anything in the act indicate that the legislature would consider it somehow unfair to use the results of such tests in a prosecution of the driver. State v. Johnston, 1989-NMCA-063, 108 N.M. 778, 779 P.2d 556, cert. denied, 108 N.M. 771, 779 P.2d 549.
Estoppel and prior license revocation hearing. — Where the court reversed the revocation of defendant's driver's license because the breath test given to defendant was not administered pursuant to the provisions of the Implied Consent Act, the district court did not err in deciding the state was not precluded from introducing the breath test results during the subsequent criminal proceeding. State v. Bishop, 1992-NMCA-034, 113 N.M. 732, 832 P.2d 793, cert. denied, 113 N.M. 690, 831 P.2d 989.
Permissible search of a person's blood may arise from a valid search warrant. — A constitutionally permissible search of a person's blood may arise from an arrest pursuant to the Implied Consent Act or a valid search warrant supported by probable cause. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001.
Where defendant was charged with vehicular homicide and DWI following a crash that killed two people, and where the officer detected an odor of alcohol on defendant, noticed that defendant had a flushed complexion and confused speech, the officer questioned defendant's ability to give consent to a blood draw pursuant to the Implied Consent Act due to defendant's condition from the injuries and the medications in her system; the officer instead obtained a search warrant, based on probable cause, to draw defendant's blood; court of appeals held that where probable cause exists, refusal under the Implied Consent Act is not required before an officer may obtain a search warrant for a blood test, and that a valid search warrant is a permissible alternative to proceeding under the Implied Consent Act in order to perform a blood draw. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001.
Implied consent laws can no longer provide that a driver impliedly consents to a blood draw. — The fourth amendment permits warrantless breath tests incident to legal arrests because noninvasive breath tests only slightly impact a subject's privacy and because the state has an interest in testing breath alcohol content to maintain highway safety and deter drunk driving, but blood tests bear too heavily on a subject's privacy interests to permit the state to seize warrantless samples at all DWI stops. Therefore, when a subject does not consent to a blood draw, officers must obtain a warrant or establish probable cause and exigent circumstances to justify a warrantless search. State v. Vargas, 2017-NMSC-029, aff'g 2017-NMCA-023, 389 P.3d 1080.
A driver cannot be subjected to criminal penalties for refusing to submit to a warrantless blood draw. — Where defendant consented to provide two breath test samples at a DWI checkpoint, but refused to submit to a blood test, her conviction for aggravated DWI was improper, because blood tests bear too heavily on a subject's privacy interests to permit the state to seize warrantless samples at all DWI stops, and when a subject does not consent to such a search, officers must obtain a warrant or establish probable cause and exigent circumstances to justify a warrantless search. State v. Vargas, 2017-NMSC-029, aff'g 2017-NMCA-023, 389 P.3d 1080.
A defendant may not be held criminally liable for refusing to submit to a warrantless blood test based on implied consent. — Where defendant was charged with aggravated driving while intoxicated, and where defendant's DWI charge was aggravated based on her refusal of a warrantless blood test, defendant's conviction for aggravated DWI was reversed because a driver may be deemed to have consented to a warrantless blood test under a state implied consent statute, but the driver may not be subject to a criminal penalty for refusing to submit to such a test, and therefore where defendant was threatened with an unlawful search, her refusal to submit to the search cannot be the basis for aggravating her DWI sentence. State v. Vargas, 2017-NMCA-023, cert. granted.
District court must assess the voluntariness of consent to a blood draw when given in response to threats of heightened criminal penalties for refusal. — Where defendant was charged with driving while under the influence of intoxicating liquor, and where the evidence at trial established that defendant submitted to a blood test which indicated that defendant had a blood alcohol content of .08, and where there was conflicting evidence at trial whether the arresting officer advised defendant that his failure to consent could cause defendant to face enhanced criminal penalties, and where the district court failed to make a determination whether the criminal penalty portion of the implied consent advisory was read to defendant prior to his consent, the case was remanded because a trial court must assess the voluntariness of the consent in light of the totality of the circumstances, including an improper implied consent advisory. State v. Franklin, 2020-NMCA-016.
Law reviews. — For comment, "Implied Consent in New Mexico," see 10 Nat. Resources J. 378 (1970).
For note, "Constitutional Law - Criminal Law - Evidence - Admissibility of a Motorist's Refusal to Take a Breath-Alcohol Test: McKay v. Davis," see 14 N.M.L. Rev. 257 (1984).
For note, "New Mexico Adopts a Subsequent Consent Rule for Motorists Who Refuse to Submit to Chemical Testing: In re Suazo," 25 N.M.L. Rev. 261 (1995).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A Am. Jur. 2d Automobiles and Highway Traffic §§ 305 to 308, 377, 378.
Duty of law enforcement officer to offer suspect chemical test under implied consent law, 95 A.L.R.3d 710.
61A C.J.S. Motor Vehicles § 633(2), (8).

Structure New Mexico Statutes