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Refuse Breathalyzer

Though it’s true that New Mexico’s Implied Consent Act makes refusal a violation of state law and outlines the consequences for a refusal, you still have the constitutional right to deny a chemical test. However, if you choose to exercise this right, you should be sure that you have a staunch advocate, such as Simon A. Kubiak — experienced and top-rated DWI defender — by your side to uphold your right and defend your decision.

The Breathalyzer

Though there are several ways to test a person’s blood alcohol level, the breathalyzer is the easiest and most definitive way to do so. The breathalyzer is a portable device that takes samples of your breath and mathematically computes a blood alcohol reading. It is not uncommon for many drivers to refuse to blow into the device with the misconception that, if officers cannot get a BAC reading, they cannot legally make an arrest. This is not the case.

Implied Consent Violation

If you refuse to blow into the breathalyzer upon request, the officer can still arrest you and charge you with an Implied Consent Violation. This violation is separate from a DUI offense and carries its own punishments. If it turns out you are not guilty of a DWI, the MVD can still revoke your license for one year. If the state does find you guilty of a DUI, you face both the consequences of a DUI and an implied consent violation.

Moreover, refusing to submit to a breath or blood test can result in aggravated DUI charges. An aggravated DWI carries a mandatory prison sentence of 48 hours. A first time, simple DUI does not carry any mandatory jail time. However, if guilty of an implied consent violation on your first offense, you will have to serve jail time.

These consequences should not deter you from exercising your constitutional rights. You are innocent until proven guilty, and our team at Simon A. Kubiak, Attorneys At Law, PC will use every tool in our arsenal to prevent a guilty verdict. From calling into question police procedures to arguing that the arresting officer failed to read you your Miranda rights, we will pull out all the stops to defend your decision and uphold your rights.

To Submit to the Test or To Not?

If an officer stops you for suspicion of driving under the influence of drugs or alcohol, you submit to the breath test and the results reveal you had been drinking, there are multiple ways to fight the charges. For instance, you can argue that the breathalyzer was mis-calibrated or that the arresting officer was not adequately trained in the proper way to administer the test. You may also argue that your test results were mishandled or improperly stored, or that the officer’s interrogation or communication with you was out of line.

That said, say you refuse to submit to a breath test. What defense options do you have then? You actually have several. From arguing that the officer failed to meet his burden of proof in asking you to take a breath test to asserting that the officer failed to read you your full Miranda Rights, there are several defenses to implied consent violation charges that actually work. An experienced DWI defense attorney knows how to implement them for the greatest success.

If you were stopped for a DUI, and if you refused to take the breath test, it is essential that you retain the help of an experienced DWI defense attorney. Contact Simon A. Kubiak, Attorneys At Law, PC, to discuss your next steps and possible defense options today.

Contact us Today

If you have questions about our legal services, feel free to get in touch with us right away. We quickly respond to all calls because we understand there is little time for delay when it comes to getting you the representation you need. For your convenience, we also have Spanish-speaking attorneys.


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