How Chemical Testing Is Used In NM Impaired Driving Cases
Upon arrest for DWI in New Mexico, each suspect will be requested to submit to chemical testing to determine the amount of drugs/alcohol present in their system. Chemical testing is to be administered within 3 hours after arrest, however any test result obtained 3 hours after arrest is still admissible in court (but the jury will be told testing was done after 3 hours and should factor into their determination of the reliability of the test result).
BREATH TESTING - In New Mexico DWI cases, Breath testing is the most common chemical test, but it is not as reliable as blood testing. Breath tests are only able to detect the presence of alcohol on a person's breath, so they are not relevant to DWI cases where the police suspect impairment by drugs. Prior to any breath testing a DWI suspect must be observed for a period of 20 minutes to ensure that no food, drink or smoke is ingested prior to collection of the first breath sample. Breath samples must be analyzed by certified Operators or Key Operators on instruments and equipment approved and certified by the Scientific Laboratory Division. Two breath samples must be collected and analyzed. The two breath samples may not be taken more than 15 minutes apart. If the difference in the results of the two samples exceeds 0.02 grams per 210 liters (BrAC), a third sample of breath or blood shall be collected and analyzed. If the suspect declines or is physically incapable of consent for the second or third samples, it shall be permissible to analyze fewer samples (the fact that more testing was not completed will not affect the admissibility of the first samples).
BLOOD TESTING - Blood tests are more reliable than breath tests, but they are also more invasive. New Mexico DWI law does not permit forcible warrant-less blood draws under any circumstances. If the DWI suspect does not consent to a blood draw, a warrant must be obtained or no blood may be taken. Only a physician, licensed professional, practical nurse,laboratory technician or technologist employed by a hospital or physician is permitted to withdraw blood from a DWI suspect. Blood samples must be collected in the presence of the arresting officer or other responsible person who can authenticate the samples or the results may not be admissible in court. The initial blood samples should be collected within two hours of arrest. Any blood samples collected subsequent to the initial blood or breath sample collection should be collected within 60 minutes of the initial sample collection.
RIGHT TO ADDITIONAL TESTING - The police are required to inform the New Mexico DWI suspect of their right to be given an opportunity to arrange for a physician, licensed professional, practical nurse, laboratory technician or technologist who is employed by a hospital or physician of his own choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer. The law enforcement agency is responsible for the cost of any additional testing requested by the suspect.
