What is “Implied Consent” to give a breath test?

If I am arrested on suspicion of DWI in New Mexico, do I need to take a breath alcohol test? Can the police make me? What happens if I refuse?

While the police cannot force you to do a breath test, New Mexico’s Implied Consent Act creates legal obligations for drivers suspected of DWI; refusal has consequences for license privileges and beyond. Basically, under this law, all drivers implicitly agree to chemical testing by operating a vehicle in the state. When police formalize a DWI investigation, it also triggers an administrative license revocation processes within MVD, independent of any criminal charges. Here’s what drivers and attorneys need to know about its interplay with DWI cases:

The Core of New Mexico’s Implied Consent Act

Under NMSA 1978 § 66-8-107, drivers arrested for DWI must submit to blood or breath testing. 

Officers, must advise the arrested person about the Implied Consent Act and its penalties for refusal, including including license revocation and harsher criminal penalties if convicted. This framework creates two parallel legal battles: criminal DWI charges in court and administrative license revocation through the MVD.

Administrative License Revocation Process

Once triggered by an arrest, the police trigger the revocation process which will proceed on its own unless your lawyer or you intervene. The Implied Consent Act establishes strict timelines and requirements: after arrest you have 10 days to request an administrative hearing to challenge their revocation. If you don’t request the hearing, revocation is automatic. The hearing will be less formal than a criminal trial, but generally,  the police officer will have to testify to what happened, whether procedures were followed and details about the breath test. If they prove their case against you, license revocation will follow. 

First -time offenders face:

• 6-month revocation for test failure (BAC ≥0.08)
• 1-year revocation for refusal

Subsequent violations escalate to:

• 2-year revocation for second refusal
• 3-year revocation for third refusal

Notably, administrative revocations proceed regardless of criminal case outcomes – a driver acquitted in court could still lose driving privileges. Of course, driving with a revoked license is its own charge and can 

Criminal Case Ramifications of Implied Consent

By law, breath tests are permissible without warrants. The police officer will read out the requirement, and then let the suspect decide. A breath test is a crucial and highly probative type of evidence to prove DWI. But refusing testing carries dual risks:

Enhanced criminal penalties:

• 48 consecutive hours mandatory jail for first refusal
• 8-day consecutive minimum for second refusal
• 90-day minimum for third refusal

Prosecutorial advantage: 

• Courts allow refusal evidence as potential consciousness of guilt. Essentially, they will argue that you refused because you knew it would show that you were intoxicated.
• The evidentiary advantage or disadvantage pertaining to refusal is a context question for trial lawyers. Just know that the law is clear about the requirement for a breath test and the consequences for refusal. 

Also note, questions about the breath test from police officers are not barred by Miranda requirements:0 this issue does not implicate the right to remain silent.