New Mexico’s Driving While Intoxicated (DWI) statutes impose strict liability for individuals operating a motor vehicle while impaired by alcohol or drugs. However, a critical legal hurdle for prosecutors lies in establishing a direct temporal overlap between the defendant’s impairment and the act of driving. After all, the crime is driving WHILE impaired. It is not enough for the prosecution to show that the defendant drove and then drank. Remember, under the US Constitution, the prosecution always bears the burden of proving every element of the crime beyond a reasonable doubt. And the law establishes that part of that burden is proving the overlap. Sometimes proving this “while” is called the nexus: it is the connection between the impairment and the driving.
This type of issue may come up if the police come across the defendant after he already drove. The defendant may indeed seem to the police officer obviously impaired, drunk, or high now, but how can it be proven that the defendant was impaired while he was driving? If the police officer doesn’t actually see the defendant driving and establish continuous tracking of the defendant until the officer contacts the defendant personally and notes the impairment, the evidence will have to be circumstantial and, as so often is the case, the devil is in the details.
For example, suppose there is a car crash, and the defendant is found minutes after the crash sitting in the car and obviously impaired. In that case, though the officer never saw the defendant driving, it is very powerful circumstantial evidence that he was impaired while he was driving because it would be impossible to have crashed the car and then consume enough alcohol to become impaired by the time the officer arrives. Here, the nexus is proven. However, suppose the officer receives a call that a person was driving terribly and parks his car in his garage. An hour later, the officer knocks on the door and finds a heavily impaired person. In this case, it is plausible that the person came home and then drank and had not in fact been impaired at the time of driving; in this case, the defense may have a strong “nexus” argument. It will be up to the judge or jury to decide whether the State proves the case beyond a reasonable doubt or not.
There can be many interesting variations on this theme. For example, the New Mexico Supreme Court’s ruling in State v. Sims (2010) held that the defendant’s mere physical presence in a stationary vehicle while being impaired does not suffice for DWI; the State must prove the defendant either actually drove while he was impaired or had “general intent to drive.” For example, a defendant found asleep in a parked car with keys in the ignition may avoid conviction if the defense can plausibly argue that they had no intent to drive (e.g., using the vehicle as temporary shelter).
These cases highlight just how crucial the defendant’s statements to police officers can be in proving their case. The best nexus issue for the defense can be sunk by the Defendant’s own admission or otherwise suggestive statement that his drinking occurred before or while he was drinking. They also highlight how small details like empty containers, timelines, and even the warmth of the car’s hood after being recently turned off can make or break a case.
