Drunk Driving Search Seizure

New Mexico’s laws are harsh in many aspects and often favor the state. However, lawmakers do ardently uphold residents’ fourth amendment rights, which guarantee the right of the people to be secure in their persons, properties, papers and effects against unreasonable search and seizures. Law enforcement may not violate this right without probable cause, supported by oath or affirmation. That said, in an effort to combat drunk driving, the state takes a harsh stance against the crime and allows search and seizures during investigatory stops, roadblocks and border stops.

Investigatory Stops

investigatory stopsInvestigatory stops refer to stops that are initiated by a police officer for the purpose of investigating possible criminal activity. The officer does not need the suspect’s consent to perform the stop. However, he or she does need reasonable suspicion. In the case of a drunk driving stop, reasonable suspicion would come in the form of swerving, running traffic signals, erratic driving or driving significantly above or below the speed limit. “Reasonable suspicion” must be based on the officer’s experience and observations, and not on a hunch or some anonymous tip, though the officer may conduct the stop if observations corroborate some information in the tip.


Officers attending roadblocks do not need reasonable suspicion to stop you and request a breath test. However, they do need probable cause to search your vehicle and/or seize it or its contents. Probable cause may come in the form of a breath test that reveals your BAC to be .08% or greater (or .04% if you’re a commercial truck driver or .02% if you’re a minor), an open container on the seat or the smell of alcohol on your breath.

Border Stops

As a border state, New Mexico has several border stops along its roads. For a border stop to be valid, however, the checkpoint must be located at a fixed and interior location. Officers may stop drivers at random and without reasonable suspicion or probable cause. Officers may also inquire as to drivers’ immigration and citizen status. However, officers may not elevate the interrogation to an investigatory stop without probable cause.

If, however, the border stop occurs at an international border, officers have the right to conduct routine searches of automobiles and luggage without reasonable suspicion or probable cause. They may also conduct patdowns and frisks without legal justification.

Were Your Rights Violated?

New Mexico’s drunk driving laws heavily favor law enforcement, but that does not mean that you do not have rights. If you were stopped for a DWI, searched and arrested, Simon A. Kubiak and our team will investigate the circumstances surrounding your stop to see if the arresting officer violated legal procedures or your rights in any way. If we find even a shred of evidence in your favor, we will use it to either obtain a reduced sentence or shut down the state’s case entirely. To explore your options and learn more about your rights, contact Simon A. Kubiak, Attorneys At Law, PC 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.


Suite 1A, 1121 4th Street NW, Albuquerque, NM 87102