A. It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state. B. It is unlawful for a person who is under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle to drive a vehicle within this state. C. It is unlawful for: (1) a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle; or (2) a person to drive a commercial motor vehicle in this state if the person has an alcohol concentration of four one hundredths or more in the person's blood or breath within three hours of driving the commercial motor vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle. D. Aggravated driving under the influence of intoxicating liquor or drugs consists of: (1) driving a vehicle in this state with an alcohol concentration of sixteen one hundredths or more in the driver's blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle; (2) causing bodily injury to a human being as a result of the unlawful operation of a motor vehicle while driving under the influence of intoxicating liquor or drugs; or (3) refusing to submit to chemical testing, as provided for in the Implied Consent Act [66-8-105 to 66-8-112 NMSA 1978], and in the judgment of the court, based upon evidence of intoxication presented to the court, the driver was under the influence of intoxicating liquor or drugs. E. A first conviction pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than ninety days or by a fine of not more than five hundred dollars ($500), or both; provided that if the sentence is suspended in whole or in part or deferred, the period of probation may extend beyond ninety days but shall not exceed one year. Upon a first conviction pursuant to this section, an offender shall be sentenced to not less than twenty-four hours of community service. In addition, the offender may be required to pay a fine of three hundred dollars ($300). The offender shall be ordered by the court to participate in and complete a screening program described in Subsection L of this section and to attend a driver rehabilitation program for alcohol or drugs, also known as a "DWI school", approved by the bureau and also may be required to participate in other rehabilitative services as the court shall determine to be necessary. In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to not less than forty-eight consecutive hours in jail. If an offender fails to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or fails to comply with any other condition of probation, the offender shall be sentenced to not less than an additional forty-eight consecutive hours in jail. Any jail sentence imposed pursuant to this subsection for failure to complete, within a time specified by the court, any community service, screening program, treatment program or DWI school ordered by the court or for aggravated driving under the influence of intoxicating liquor or drugs shall not be suspended, deferred or taken under advisement. On a first conviction pursuant to this section, any time spent in jail for the offense prior to the conviction for that offense shall be credited to any term of imprisonment fixed by the court. A deferred sentence pursuant to this subsection shall be considered a first conviction for the purpose of determining subsequent convictions. F. A second or third conviction pursuant to this section shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not more than three hundred sixty-four days or by a fine of not more than one thousand dollars ($1,000), or both; provided that if the sentence is suspended in whole or in part, the period of probation may extend beyond one year but shall not exceed five years. Notwithstanding any provision of law to the contrary for suspension or deferment of execution of a sentence: (1) upon a second conviction, an offender shall be sentenced to a jail term of not less than ninety-six consecutive hours, not less than forty-eight hours of community service and a fine of five hundred dollars ($500). In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than ninety-six consecutive hours. If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional seven consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement; and (2) upon a third conviction, an offender shall be sentenced to a jail term of not less than thirty consecutive days, not less than ninety-six hours of community service and a fine of seven hundred fifty dollars ($750). In addition to those penalties, when an offender commits aggravated driving under the influence of intoxicating liquor or drugs, the offender shall be sentenced to a jail term of not less than sixty consecutive days. If an offender fails to complete, within a time specified by the court, any community service, screening program or treatment program ordered by the court, the offender shall be sentenced to not less than an additional sixty consecutive days in jail. A penalty imposed pursuant to this paragraph shall not be suspended or deferred or taken under advisement. G. Upon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of eighteen months, six months of which shall not be suspended, deferred or taken under advisement. H. Upon a fifth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of two years, one year of which shall not be suspended, deferred or taken under advisement. I. Upon a sixth conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of thirty months, eighteen months of which shall not be suspended, deferred or taken under advisement. J. Upon a seventh conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of three years, two years of which shall not be suspended, deferred or taken under advisement. K. Upon an eighth or subsequent conviction pursuant to this section, an offender is guilty of a second degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of twelve years, ten years of which shall not be suspended, deferred or taken under advisement. L. Upon any conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court, an alcohol or drug abuse screening program approved by the department of finance and administration and, if necessary, a treatment program approved by the court. The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement. M. Upon a second or third conviction pursuant to this section, an offender shall be required to participate in and complete, within a time specified by the court: (1) not less than a twenty-eight-day inpatient, residential or in-custody substance abuse treatment program approved by the court; (2) not less than a ninety-day outpatient treatment program approved by the court; (3) a drug court program approved by the court; or (4) any other substance abuse treatment program approved by the court. The requirement imposed pursuant to this subsection shall not be suspended, deferred or taken under advisement. N. Upon a felony conviction pursuant to this section, the corrections department shall provide substance abuse counseling and treatment to the offender in its custody. While the offender is on probation or parole under its supervision, the corrections department shall also provide substance abuse counseling and treatment to the offender or shall require the offender to obtain substance abuse counseling and treatment. O. Upon a conviction pursuant to this section, an offender shall be required to obtain an ignition interlock license and have an ignition interlock device installed and operating on all motor vehicles driven by the offender, pursuant to rules adopted by the bureau. Unless determined by the bureau to be indigent, the offender shall pay all costs associated with having an ignition interlock device installed on the appropriate motor vehicles. The offender shall operate only those vehicles equipped with ignition interlock devices for: (1) a period of one year, for a first offender; (2) a period of two years, for a second conviction pursuant to this section; (3) a period of three years, for a third conviction pursuant to this section; or (4) the remainder of the offender's life, for a fourth or subsequent conviction pursuant to this section. P. Five years from the date of conviction and every five years thereafter, a fourth or subsequent offender may apply to a district court for removal of the ignition interlock device requirement provided in this section and for restoration of a driver's license. A district court may, for good cause shown, remove the ignition interlock device requirement and order restoration of the license; provided that the offender has not been subsequently convicted of driving a motor vehicle under the influence of intoxicating liquor or drugs. Good cause may include an alcohol screening and proof from the interlock vendor that the person has not had violations of the interlock device. Q. An offender who obtains an ignition interlock license and installs an ignition interlock device prior to conviction shall be given credit at sentencing for the time period the ignition interlock device has been in use. R. In the case of a first, second or third offense under this section, the magistrate court has concurrent jurisdiction with district courts to try the offender. S. A conviction pursuant to a municipal or county ordinance in New Mexico or a law of any other jurisdiction, territory or possession of the United States or of a tribe, when that ordinance or law is equivalent to New Mexico law for driving under the influence of intoxicating liquor or drugs, and prescribes penalties for driving under the influence of intoxicating liquor or drugs, shall be deemed to be a conviction pursuant to this section for purposes of determining whether a conviction is a second or subsequent conviction. T. In addition to any other fine or fee that may be imposed pursuant to the conviction or other disposition of the offense under this section, the court may order the offender to pay the costs of any court-ordered screening and treatment programs. U. With respect to this section and notwithstanding any provision of law to the contrary, if an offender's sentence was suspended or deferred in whole or in part and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation. V. As used in this section: (1) "bodily injury" means an injury to a person that is not likely to cause death or great bodily harm to the person, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the person's body; and (2) "commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle: (a) has a gross combination weight rating of more than twenty-six thousand pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds; (b) has a gross vehicle weight rating of more than twenty-six thousand pounds; (c) is designed to transport sixteen or more passengers, including the driver; or (d) is of any size and is used in the transportation of hazardous materials, which requires the motor vehicle to be placarded under applicable law. History: 1941 Comp., § 68-2317, enacted by Laws 1953, ch. 139, § 54; 1953 Comp., § 64-22-2; Laws 1955, ch. 184, § 8; 1965, ch. 251, § 1; 1969, ch. 210, § 2; recompiled as 1953 Comp., § 64-8-102, by Laws 1978, ch. 35, § 510; 1979, ch. 71, § 7; 1981, ch. 370, § 2; 1982, ch. 102, § 1; 1983, ch. 76, § 2; 1985, ch. 178, § 2; 1987, ch. 97, § 3; 1988, ch. 56, § 8; 1993, ch. 66, § 7; 1997, ch. 43, § 1; 1997, ch. 205, § 1; 1999, ch. 61, § 1; 2002, ch. 82, § 1; 2003, ch. 51, § 10; 2003, ch. 90, § 3; 2003, ch. 164, § 10; 2004, ch. 42, § 1; 2005, ch. 241, § 5; 2005, ch. 269, § 5; 2007, ch. 321, § 10; 2007, ch. 322, § 1; 2008, ch. 72, § 3; 2010, ch. 29, § 1; 2016, ch. 16, § 2. Cross references. — For mandatory revocation of driver's license by the division, see 66-5-29 NMSA 1978. For Ignition Interlock Licensing Act, see 66-5-501 NMSA 1978. For violation being a felony if homicide committed, see 66-8-101 NMSA 1978. For funding of local government corrections fund by penalty assessment fees, see 66-8-116 NMSA 1978 and 66-8-119 NMSA 1978. For immediate appearance before magistrate for violation, see 66-8-122 NMSA 1978. For the prohibition of operation of a motor vehicle while possessing liquor, see 66-8-138 to 66-8-140 NMSA 1978. For crime laboratory fund, see 31-12-9 NMSA 1978. For court automation fund, see 34-9-10 NMSA 1978. For the criminal jurisdiction of magistrate courts, see 35-3-4 NMSA 1978. For court automation fee, see 35-6-1 NMSA 1978 and 66-8-119 NMSA 1978. For uniform jury instructions to be used with 66-8-102 NMSA 1978, see UJI 14-4501 to 14-4503 NMRA. The 2016 amendment, effective July 1, 2016, increased penalties and mandatory periods of incarceration for eighth or subsequent offenses, and provided that an eighth or subsequent offense is a second degree felony; in Subsection E, in the fourth sentence, after "Subsection", deleted "K" and added "L"; in Subsection J, after "seventh", deleted "or subsequent"; added a new Subsection K and redesignated the succeeding subsections accordingly; and in Subsection O, after "rules adopted by the", deleted "traffic safety". The 2010 amendment, effective July 1, 2010, in the catchline, deleted "Persons" and added "Driving"; after "aggravated driving", deleted "while"; and changed "penalty" to "penalties"; in Subsection D, in the introductory sentence, after "Aggravated driving", deleted "while" and after "drugs consists of", deleted "a person who"; in Subsection D(1), at the beginning of the sentence, changed "drives" to "driving"; after "in this state", deleted "and has an" and added "with an"; and after "or more in the", deleted "person's" and added "driver's"; in Subsection D(2), at the beginning of the sentence, deleted "has caused" and added "causing"; in Subsection D(3), at the beginning of the sentence, deleted "refused" and added "refusing", and after "presented to the court,", added "the driver"; in Subsection E, in the first sentence, deleted "person under"; in the fifth sentence, after "aggravated driving", deleted "while"; and in the seventh sentence, after "aggravated driving", deleted "while"; in Subsection N, in the first sentence, after "rules adopted by the", added "traffic safety", and in the second sentence, after "determined by the", deleted "sentencing court" and added "bureau"; added Subsection P; relettered succeeding subsections; and in Subsection R, after "law for driving", deleted "while" and after "penalties for driving", deleted "while". The 2008 amendment, effective May 14, 2008, deleted former Paragraph (3) of Subsection T which defined "conviction" to mean an adjudication of guilt, but not including the imposition of a sentence. The 2007 amendment, effective April 2, 2007, amended Subsection C to provide for chemical tests within three hours after driving a vehicle for the administration of a chemical test to determine alcohol concentration. Laws 2007, ch. 321, § 10 and Laws 2007, ch. 322, § 1 both enacted amendments to 66-8-102 NMSA 1978. The section was set out as amended by Laws 2007, ch. 322, § 1. See 12-1-8 NMSA 1978. The 2005 amendment, effective June 17, 2005, provided in Subsection E that upon a first conviction, an offender shall be sentenced to not less than twenty-four hours of community service and that in addition, the offender may be required to pay the specified fine; deleted the former provision in Subsection E that if an offender's sentence was suspended or deferred and the offender violates any condition of probation, the court may impose any sentence that it could have originally imposed and credit shall not be given for time served on probation; provided in Subsection F(2) that the sentence shall include not less that ninety-six hours of community service and that if an offender fails to complete any community service, the offender shall receive the specified minimum sentence; deleted former Subsection N, which provided that for a first conviction of aggravated driving while under the influence, the offender shall be required as a condition of probation to have an ignition interlock device installed for one year; deleted former Subsection O, which provided that for a first offense of driving while under the influence, the offender may be required as a condition of probation to have an ignition interlock device installed for one year; deleted former Subsection P, which provided that upon a subsequent conviction, as a condition of probation, the offender shall be required as a condition of probation to have an ignition interlock device installed for one year; added Subsection N to provide the periods of time for which an offender shall be required to have an ignition interlock device installed; added Subsection O to provide that a fourth and subsequent offender may apply to the district court for removal of the ignition interlock device requirement five years after conviction and the conditions under which a district court may remove the requirement; and added Subsection S to provide that if an offender violates any condition of probation, the court may impose any sentence the court could originally have imposed and credit shall not be given for time on probation. Laws 2005, ch. 241, § 5 and Laws 2005, ch. 269, § 5 enacted almost identical amendments to 66-8-102 NMSA 1978. The section was set out as amended by Laws 2005, ch. 269, § 5. See 12-1-8 NMSA 1978. The 2004 amendment, effective March 2, 2004, added Paragraph (2) of Subsection C making it unlawful for "a person who has an alcohol concentration of four one hundredths or more in his blood or breath to drive a commercial motor vehicle within this state", amended Subsection E to add to the grounds for a 48-hour imprisonment a failure to comply with any condition of probation and to add "Notwithstanding any provision of law to the contrary, if an offender's sentence was suspended or deferred in whole or in part, and the offender violates any condition of probation, the court may impose any sentence that the court could have originally imposed and credit shall not be given for time served by the offender on probation", amended Subsection G to limit the subsection to a fourth conviction and to change the jail term from not less than six months to eighteen months, six months of which shall not be suspended, deferred or taken under advisement, added new Subsections H, I, J, L and M, redesignated former Subsection H as Subsection K and provided for the approval of the department of finance and administration for the drug screening program, redesignated former Subsections I through O as Subsections N through T and amended redesignated Subsection T by adding a new Paragraph (2) defining "commercial motor vehicle". The 2003 amendment, effective July 1, 2003, substituted "A person" for "Every person" at the beginning of Subsection E; and substituted "or of a tribe, where that ordinance or law" for "that" following "the United States" in Subsection M. Section 66-8-102 NMSA 1978 was amended by Laws 2003, ch. 51, § 10, Laws 2003, ch. 90, § 3 and Laws 2003, ch. 164, § 10. The section was set out as amended by Laws 2003, ch. 164, § 10. See Section 12-1-8 NMSA 1978. The 2002 amendment, effective January 1, 2003, rewrote Subsection I to require the installation of an ignition interlock device for first-time offenders; added Subsections J and K; and redesignated former Subsections J to M as present Subsections L to O. The 1999 amendment, effective June 18, 1999, added Subsection I, redesignated former Subsections I through L as Subsections J through M, and made minor stylistic changes. The 1997 amendment, effective June 20, 1997, inserted "to participate in and complete a screening program described in Subsection H of this section and" near the beginning of the third sentence in Subsection E; added the last sentence of Subsection H; inserted the language beginning "in New Mexico" and ending "liquor or drugs" in Subsection J; and made a minor stylistic change in Paragraph D(3). Duplicate amendments. — Laws 1997, ch. 43, § 1 and Laws 1997, ch. 205, § 1 enacted identical amendments to this section. The section was set out as amended by Laws 1997, ch. 205, § 1. See 12-1-8 NMSA 1978. The 1993 amendment, effective January 1, 1994, rewrote this section. The 1988 amendment, effective July 1, 1988, redesignated part of Subsection E as present Subsection E(1) and added present Subsection E(2); substituted "third conviction" for "subsequent conviction" in present Subsection E(1); added Subsections H, I and J; and made minor stylistic changes. The 1987 amendment, effective April 7, 1987, in Subsection D inserted "notwithstanding the provisions of Section 31-18-13 NMSA 1978" following "shall be punished" in the first sentence; in Subsection E inserted "notwithstanding the provisions of Section 31-18-13 NMSA 1987"; and made a minor change in language in Subsection D. I. GENERAL CONSIDERATION. Sixth amendment right to a jury trial was not violated. — Where defendant was convicted by a jury in magistrate court of aggravated DWI, first offense, which carried a maximum sentence of incarceration of ninety days; defendant appealed to district court and filed a demand for a jury trial; the district court denied defendant's request for a jury trial; and at a bench trial, the district court found defendant guilty of DWI, the district court did not violate defendant's right to a jury trial under the sixth amendment of the United States Constitution or Article II, Section 12 of the New Mexico Constitution because the maximum period of imprisonment was less than six months and defendant could not overcome the presumption that the offense of DWI, first offense, was not a serious offense for purposes of the sixth amendment right to a jury trial. State v. Cannon , 2014-NMCA-058, cert. denied, 2014-NMCERT-006. Requiring interlock devices for driving while under the influence of drugs. — Subsection N of Section 66-8-102 NMSA 1978, mandating installation of an interlock device, applies to drivers who are under the influence of either alcohol or drugs, or both. State v. Valdez , 2013-NMCA-016, 293 P.3d 909, cert. denied, 2012-NMCERT-012. Equal protection not violated. — Subsection N of Section 66-8-102 NMSA 1978, mandating installation of an interlock device on vehicles driven by persons convicted of driving while intoxicated, does not violate the Equal Protection Clause of the United States and New Mexico constitutions as applied to DWI offenders whose impairment is not caused by alcohol, but by drugs. State v. Valdez , 2013-NMCA-016, 293 P.3d 909, cert. denied, 2012-NMCERT-012. Where defendant pled guilty to a first time offense of driving while intoxicated; the results of blood tests showed the presence of prescription drugs, but no alcohol, in defendant's system; and the district court ordered defendant to install in defendant's vehicle an ignition interlock device, which detected only alcohol, not drugs, the district court's order did not violate equal protection. State v. Valdez , 2013-NMCA-016, 293 P.3d 909, cert. denied, 2012-NMCERT-012. The offense of DWI (first offense) is a petty misdemeanor and is subject to a one-year statute of limitations. State v. Trevizo , 2011-NMCA-069, 150 N.M. 158, 257 P.3d 978. Definition of vehicle. — A farm tractor with an attached mower is a "vehicle" under the DWI statute. State v. Richardson , 1992-NMCA-041, 113 N.M. 740, 832 P.2d 801, cert. denied, 113 N.M. 690, 831 P.2d 989. Offense does not require motion of vehicle. — The offense of driving while intoxicated under this statute does not require motion of the vehicle; the offense is committed when a person under the influence drives or is in actual physical control of a motor vehicle or exercises control over or steers a vehicle being towed. Boone v. State , 1986-NMSC-100, 105 N.M. 223, 731 P.2d 366; holding limited by State v. Sims , 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642. Vehicle on private property. — The state may charge a person with DWI pursuant to this section, despite the fact that the defendant is found on private property in actual physical control of a non-moving vehicle. State v. Johnson , 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233; holding limited by State v. Sims , 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642. More than one act amending section. — Where three acts were enacted to amend Section 66-8-102 NMSA 1978 at the same session of the legislature, were signed by the governor on different dates, had different effective dates, and are irreconcilable, the last act signed by the governor is presumed to be the law pursuant to Section 12-1-8B NMSA 1978. State v. Smith , 2004-NMSC-032, 136 N.M. 372, 98 P.3d 1022. Where three acts were enacted to amend Section 66-8-102 NMSA 1978 at the same session of the legislature, were signed by the governor on different dates, and had different effective dates, the language of the three enactments, in addition to their titles and purposes, indicated that the objective of the legislature was to make specific, independent improvements to the statute and permitted the three enactments to be construed harmoniously to give effect to each enactment. In the course of amending an existing law, if the legislature restates existing law to comply with N.M. Const. Art. IV, § 18, the courts are not obligated to read into that legislative act a repeal by implication of other legislation passed in the same session. State v. Smith , 2004-NMSC-032, 136 N.M. 372, 98 P.3d 1022. Application to driving an off-road vehicle while intoxicated. — Section 66-8-102 NMSA 1978 governs the punishment of the offense of driving an off-road vehicle while intoxicated, not Section 66-3-1020 NMSA of the Off-Highway Motor Vehicle Act. State v. Natoni , 2012-NMCA-062, 280 P.3d 304, cert. denied, 2012-NMCERT-005. Where defendant, who was driving an off-road vehicle on a public road while intoxicated, crashed into a telephone pole; a passenger in the off-road vehicle was injured in the collision; and defendant pled no contest to DWI under Section 66-3-101 NMSA 1978 of the Off-Highway Motor Vehicle Act, defendant's sentence was governed by Section 66-8-102 NMSA 1978, not by Section 66-3-1020 NMSA 1978 of the Off-Highway Motor Vehicle Act. State v. Natoni , 2012-NMCA-062, 280 P.3d 304, cert. denied, 2012-NMCERT-005. Constitutionality of Implied Consent Act. — The Implied Consent Act is not rendered unconstitutional in the civil context just because a refusal to take a breath test under the Act may be used as an element of the criminal offense of aggravated driving while intoxicated (DWI). Marez v. State Taxation & Revenue Dep't , 1995-NMCA-030, 119 N.M. 598, 893 P.2d 494. Constitutionality of punishment for refusing to submit to a warrantless blood draw under the Implied Consent Act. — The fourth amendment to the United States constitution does not support an enhanced criminal penalty based upon a defendant's refusal to consent to a blood test for the presence of drugs, and therefore 66-8-102(D)(3) NMSA 1978 is unconstitutional to the extent violation of it is predicated on refusal to consent to a blood draw to test for the presence of any drug in the defendant's blood. State v. Storey , 2018-NMCA-009, cert. denied. Where defendant was charged with aggravated driving while under the influence of intoxicating drugs, and where defendant's DUI charge was aggravated based on his refusal to consent to a warrantless blood test, defendant's conviction for aggravated DUI was reversed because the fourth amendment does not support an enhanced criminal penalty based upon a defendant's refusal to consent to a blood test for the presence of drugs, and therefore a driver cannot be criminally punished for his refusal to submit to a blood test after being arrested on suspicion of driving under the influence of intoxicating liquor or drugs. State v. Storey , 2018-NMCA-009, cert. denied. Prosecutor's comment on defendant's refusal to consent to a blood test did not violate the fourth amendment. — Where defendant was charged with aggravated driving while under the influence of intoxicating liquor or drugs after being arrested on suspicion of driving under the influence of marijuana and refusing to submit to a warrantless blood draw, the prosecutor's commentary at trial on defendant's refusal to consent to a blood test did not violate his constitutional rights under the fourth amendment, because the refusal to submit is a physical act rather than a communication, and therefore not protected as a privileged communication, and a refusal reflects consciousness of guilt that is relevant and admissible. State v. Storey , 2018-NMCA-009, cert. denied. Standing to challenge constitutionality. — Motorist whose license was revoked for refusal to take a breath-alcohol test lacked standing to challenge the constitutionality of Subsection D(3). Marez v. State Taxation & Revenue Dep't , 1995-NMCA-030, 119 N.M. 598, 893 P.2d 494. Due process issues. — Aggravation of defendant's DWI conviction under this section for his refusal to submit to a chemical test when he was not advised of the criminal consequences of that refusal did not violate federal or state due process provisions. State v. Kanikaynar , 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091, cert. quashed, 124 N.M. 269, 949 P.2d 283; Kanikaynar v. Sisneros , 190 F.3d 1115 (10th Cir. 1999), cert. denied, 528 U.S. 1090, 120 S. Ct. 821, 145 L. Ed. 2d 691 (2000). Contentions of vagueness. — Provision of this section subjecting defendant who refuses to submit to chemical testing to a mandatory jail sentence upon conviction of DWI is not unconstitutionally vague. State v. Kanikayna r, 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091, cert. quashed, 124 N.M. 269, 949 P.2d 283; Kanikaynar v. Sisneros , 190 F.3d 1115 (10th Cir. 1999), cert. denied, 528 U.S. 1090, 120 S. Ct. 821, 145 L. Ed. 2d 691 (2000). Contentions of mootness. — Generally, an appellate court will not decide a case when it cannot grant the appellant any relief, except where the conviction has continuing collateral consequences, such as mandatory sentence increases for subsequent offenses, limitations on eligibility for certain types of employment, and voting restrictions. State v. Lope , 2015-NMCA-011, cert. denied, 2014-NMCERT-010. Where defendant appealed her DWI conviction but had already completed serving her sentence, the state's claim that the appeal was moot was in error, because although a decision would not affect defendant's sentence for this conviction, it may have continuing collateral consequences such as mandatory sentence increases for subsequent DWI convictions. State v. Lope , 2015-NMCA-011, cert. denied, 2014-NMCERT-010. Effect of 1993 amendment. — The 1993 amendment, designating a fourth or subsequent DWI conviction as a fourth degree felony, did not alter the elements required to establish the offense of DWI and thus proof of prior convictions is not an element of felony DWI; the amendment did not change the nature of the offense, but rather increased the punishment for subsequent offenders by conferring fourth-degree felony status on fourth or subsequent DWI convictions. State v. Anaya , 1997-NMSC-010, 123 N.M. 14, 933 P.2d 223. English-language notice regarding administrative revocation of driver's license is compatible with due process when it is personally delivered to a driver during the course of his arrest for driving under the influence. Maso v. N.M. Taxation & Revenue Dep't , 2004-NMCA-025, 135 N.M. 152, 85 P.3d 276, aff'd , 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286. "Operating" vs. "driving" motor vehicle. The legislature has made no distinction in this section as to whether "operating a motor vehicle" means to drive or be in actual physical control of the vehicle. State v. Laney , 2003-NMCA-144, 134 N.M. 648, 81 P.3d 591, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668. Offense does not require occurrence on highway. — The prohibitive language of the statute does not require that the DWI incident actually occur on a highway. State v. Richardson , 1992-NMCA-041, 113 N.M. 740, 832 P.2d 801, cert. denied, 113 N.M. 690, 831 P.2d 989. Parking lot of commercial restaurant. — Fact that police officer arrested defendant for driving in the parking lot of a commercial restaurant does not render the arrest or search and seizure unlawful. United States v. Aguilar , 301 F.Supp.2d 1263 (D.N.M. 2004). "Vehicle" includes moped. — A "moped," as defined in Section 66-1-4.11F NMSA 1978 and regulated by Section 66-3-1101 NMSA 1978, is a "vehicle" for the purpose of the prohibition against driving while intoxicated under this section. State v. Saiz , 2001-NMCA-035, 130 N.M. 333, 24 P.3d 365, cert. denied, 130 N.M. 459, 26 P.3d 103. Violation of section not conclusive proof of negligence. — A mere showing that decedent operated a motor vehicle negligently in violation of this section and 66-7-104 NMSA 1978 is not sufficient to warrant summary judgment as it does not conclusively establish that the decedent's negligence was a contributing proximate cause of the accident. Sweenhart v. Co-Con, Inc. , 1981-NMCA-031, 95 N.M. 773, 626 P.2d 310, cert. denied, 95 N.M. 669, 625 P.2d 1186. II. UNDER THE INFLUENCE. "Under the influence" defined. — A person is under the influence of intoxicating liquor if as a result of drinking liquor the driver was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the driver and the public. State v. Sanchez , 2001-NMCA-109, 131 N.M. 355, 36 P.3d 446, cert. denied, 131 N.M. 382, 37 P.3d 99. The impaired-to-the-slightest-degree standard of proof is the proper measure of the language "under the influence of intoxicating liquor" and gives the public fair and adequate notice of what constitutes a violation of the statute. State v. Neal , 2008-NMCA-008, 143 N.M. 341, 176 P.3d 330, cert. denied, 2008-NMCERT-001, 143 N.M. 397, 176 P.3d 1129. Meaning of "under the influence". — This section makes a person guilty of driving while under the influence of intoxicating liquor if by virtue of having drunk intoxicating liquor he is to the slightest degree less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle as powerful and dangerous a mechanism as a modern automobile with safety to himself and the public. State v. Deming , 1959-NMSC-074, 66 N.M. 175, 344 P.2d 481; State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274. Term "under the influence" has been interpreted to mean that to the slightest degree defendant was less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public. State v. Myers , 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280. "Under the influence" means that to slightest degree defendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public. State v. Dutchover , 1973-NMCA-052, 85 N.M. 72, 509 P.2d 264. III. ACTUAL PHYSICAL CONTROL. Actual physical control. — A DWI conviction that is based on actual physical control requires proof that the accused actually, not just potentially, exercised control over the vehicle, as well as proof of a general intent to drive, so as to pose a danger to the safety of the driver or the public. State v. Sims , 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642, rev'g 2008-NMCA-017, 143 N.M. 400, 176 P.3d 1132 and limiting the holdings in Boone v. State , 1986-NMSC-100, 105 N.M. 223, 731 P.2d 366 and State v. Johnson , 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233. Where a police officer found defendant passed out or asleep behind the wheel of defendant's vehicle located in a commercial parking lot; the keys were on the passenger seat of the vehicle; upon awakening defendant, the officer detected a strong odor of alcohol and observed that defendant had bloodshot, watery eyes; defendant admitted to drinking alcohol, failed field sobriety tests, and submitted to two breath tests, the results of which were 0.19 and 0.18, and no motion of the vehicle was asserted either before or at the time the officer approached defendant, the evidence was insufficient to show that defendant was in actual physical control of the vehicle and the charges against defendant of driving while intoxicated should be dismissed. State v. Sims , 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642, rev'g 2008-NMCA-017, 143 N.M. 400, 176 P.3d 1132 and limiting the holdings in Boone v. State , 1986-NMSC-100, 105 N.M. 223, 731 P.2d 366 and State v. Johnson , 2001-NMSC-001, 130 N.M. 6, 15 P.3d 1233. Defendant was in actual physical control of his vehicle when he was discovered asleep or passed out at the wheel with the ignition key on the passenger seat. State v. Sims , 2008-NMCA-017, 143 N.M. 400, 176 P.3d 1132, rev'd , 2010-NMSC-027, 148 N.M. 330, 236 P.3d 642. Sufficient evidence of DWI based on actual physical control. — In a prosecution for aggravated DWI, where there were no witnesses who personally observed defendant driving, there was sufficient evidence to support the conviction under the theory of actual physical control based on the evidence presented at trial establishing that the arresting officer reached defendant's vehicle about five minutes after receiving a dispatch call alerting him that there was a pickup truck stuck in the median that was trying to back into traffic, that the officer observed defendant in the driver's seat of the truck, which was stuck in the median on the interstate with the hazard lights on, that the key to the vehicle was in the ignition and in the "on" position, and that defendant expressed an intent to drive, stating that he was going to El Paso. State v. Alvarez , 2018-NMCA-006, cert. denied. No actual physical control. — When a police officer encountered defendant, defendant was standing outside defendant's vehicle, which was parked with the hood open and the engine off; defendant said defendant had stopped because defendant had been told the lights were not working; defendant had slurred speech, was unsteady, and had the odor of alcohol; and defendant failed a field sobriety test, defendant was not in actual physical control of the vehicle at the time the officer encountered defendant. State v. Reger , 2010-NMCA-056, 148 N.M. 342, 236 P.3d 654. Actual physical control of inoperable vehicle. — The operability of a vehicle is a factor to be considered by the jury in determining whether a defendant has the general intent to drive so as to endanger any person. State v. Mailman , 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269. Where a police officer observed a vehicle at a convenience store parked off by itself in the dark with the door open; defendant told the officer that the vehicle had broken down and asked the officer to call for a tow truck; although defendant stated that defendant had dropped the keys to the vehicle under the seat, the officer could not find the keys; the vehicle was an older vehicle that could be started sometimes without a key; and the officer tried to start the vehicle without a key, but the engine would not turn over, the evidence was insufficient as a matter of law to demonstrate that defendant had taken an overt step toward driving with a general intent to drive so as to endanger himself or the public and defendant was not in actual physical control of the vehicle. State v. Mailman , 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269. DWI based on an inference of past driving. — Actual physical control is not necessary to prove DWI unless there are no witnesses to the vehicle's motion and insufficient circumstantial evidence to infer that the accused actually drove while intoxicated. Such evidence may include the accused's own admissions, the location of the vehicle next to the highway, or any other similar evidence that tends to prove that the accused drove while intoxicated. State v. Mailman , 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269. Where a police officer observed a vehicle at a convenience store parked off by itself in the dark with the door open; the officer observed an open can of beer on the console; defendant appeared to be confused and disoriented, smelled of alcohol, and had difficulty maintaining balance; defendant stated that defendant had consumed a six-pack of beer and had thrown all but one can out of the vehicle window along the highway as defendant drove to the convenience store; and defendant refused to perform a field sobriety test and to provide a breath sample, admitting that defendant was too drunk to pass the test, there was substantial evidence to support defendant's conviction for past DWI. State v. Mailman , 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269. Where police officers were called to investigate a report of domestic violence occurring in a van parked on a roadside; when the officers arrived, defendant was in the driver's seat of the van; the van was not running; the keys were not in the ignition; defendant exhibited signs of intoxication, failed a standard field sobriety test, and refused to submit to chemical testing; defendant admitted to drinking twenty-four ounces of beer about one hour earlier; and the state prosecuted defendant exclusively on the past impaired driving theory, the evidence was insufficient to prove that defendant operated a motor vehicle while impaired to the slightest degree. State v. Cotton , 2011-NMCA-096, 150 N.M. 583, 263 P.3d 925, cert. denied, 2011-NMCERT-008, 268 P.3d 513. Unconscious driver exercised actual physical control. — A person who was discovered unconscious or asleep at the wheel of an automobile, whose engine was on, was deemed to be in actual physical control, and thus was driving a vehicle within the meaning of this section. State v. Harrison , 1992-NMCA-139, 115 N.M. 73, 846 P.2d 1082, cert. denied, 114 N.M. 720, 845 P.2d 814 (1993); State v. Rivera , 1997-NMCA-102, 124 N.M. 211, 947 P.2d 168; State v. Grace , 1999-NMCA-148, 128 N.M. 379, 993 P.2d 93, cert. denied, 128 N.M. 149, 990 P.2d 823. Defendant sleeping in vehicle with key in ignition. — Evidence that defendant was found asleep at the wheel of his parked vehicle, without the motor running, but with the key in the ignition in the "on" position, was sufficient to establish that he was "driving" as that term is construed for purposes of "driving under the influence". State v. Tafoya , 1997-NMCA-083, 123 N.M. 665, 944 P.2d 894, abrogated State v. Mailman , 2010-NMSC-036, 148 N.M. 702, 242 P.3d 269. IV. DOUBLE JEOPARDY. Double jeopardy not applicable. — Where the state initially brought charges of driving while intoxicated and vehicular homicide in one proceeding and the jury found the defendant guilty of driving while intoxicated but was unable to reach a verdict on the vehicular homicide count, the subsequent retrial of vehicular homicide did not subject the defendant to double jeopardy, as such an action could be characterized as a continuing prosecution of the vehicular homicide charge. State v. O'Kelley , 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, cert. quashed, 113 N.M. 24, 822 P.2d 121. Double jeopardy does not bar DWI prosecution after license revocation. — An administrative driver's license revocation under the Implied Consent Act (Sections 66-8-105 to 66-8-112 NMSA 1978) does not constitute "punishment" for purposes of the Double Jeopardy Clause; thus, the state is not barred from prosecuting an individual for driving under the influence (DWI) even though the individual has been subjected to an administrative hearing for driver's license revocation based on the same offense. State ex rel. Schwartz v. Kennedy , 1995-NMSC-069, 120 N.M. 619, 904 P.2d 1044. No implied acquittal of greater offense. — Where the state brought charges of vehicular homicide and driving while intoxicated as separate counts, as opposed to lesser-included offenses, the jury's conviction of the defendant for driving while intoxicated but inability to reach a verdict on vehicular homicide was not an implied acquittal of vehicular homicide. An implied acquittal generally occurs when the jury is instructed to choose between a greater and a lesser offense, and chooses the lesser. State v. O'Kelley , 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, cert. quashed, 113 N.M. 24, 822 P.2d 121. Reckless driving and driving under influence are distinct offenses. — The crimes of reckless driving and driving while under the influence of intoxicating liquor are distinct offenses, provable by different evidence, and conviction of one would not bar prosecution for the other. Rea v. Motors Ins. Corp. , 1944-NMSC-002, 48 N.M. 9, 144 P.2d 676; State v. Sisneros , 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274. Driving-while-intoxicated merges with vehicular homicide. — A defendant's driving-while-intoxicated (DWI) offense merges with his vehicular homicide offense, and his sentence for the DWI conviction must be vacated. State v. Wiberg , 1988-NMCA-022, 107 N.M. 152, 754 P.2d 529, cert. denied, 107 N.M. 106, 753 P.2d 352; State v. Santillanes , 2000-NMCA-017, 128 N.M. 752, 998 P.2d 1203, rev'd , 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456. Convictions for DUI and careless driving violated defendant's double jeopardy rights. — Where defendant was convicted of driving under the influence of intoxicating liquor (DUI), impaired to the slightest degree, and careless driving, his right to be free from double jeopardy was violated, because based on the district court's findings of fact, that defendant left the traveled portion of the roadway when he struck or almost struck the victim, it was evident that the district court relied on the same evidence to convict defendant of both charges, and therefore the lesser offense, careless driving, was subsumed within his DUI conviction. State v. Arguello , 2024-NMCA-074, cert. denied. Offense not necessarily lesser included offense in vehicular homicide. — A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. However, where the indictment against defendant was phrased in the alternative charging him with homicide by vehicle while violating either this section or Section 64-22-3, 1953 Comp. (similar to Section 66-8-113 NMSA 1978), the prosecution was not barred by a conviction in municipal court for driving under the influence since the lesser offense of driving while under the influence of intoxicating liquor is not necessarily included in the greater offense of homicide by vehicle. State v. Tanton , 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813. Greater crime does not necessarily include lesser crime. — Greater crime of aggravated DWI can be committed in such a manner that the lesser crime of DWI .08 is not committed. State v. Collins , 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090. Notice of lesser included offense constructively given. — Where during the questioning of the state's first witness, the court asked the state to clarify whether the state's request for the jury instruction of DWI .08 was also a motion to amend the charges, and the state responded that it did seek to amend the charges and the court granted the state's request at that time, there is no need to amend a charging document to include a lesser included offense because notice of a lesser included offense is constructively given. State v. Collins , 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090. Lesser offense included in aggravated offense. — Defendant could not commit per se aggravated DWI without also committing DWI. State v. Notah-Hunter , 2005-NMCA-074, 137 N.M. 597, 113 P.3d 867, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229. No double jeopardy when facts fail "same evidence" test. — Where the facts offered in municipal court to support a conviction for driving while under the influence of intoxicating liquors would not necessarily sustain a conviction for homicide by vehicle in district court, under the "same evidence" test there was no double jeopardy when the state sought to prosecute the defendant for homicide by vehicle. State v. Tanton , 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813. Construction under general/specific statute rule. — The legislature did not intend to limit prosecution for either or both child abuse and driving while under the influence; thus, the statute was not preempted under the general/specific statute rule. State v. Castaneda , 2001-NMCA-052, 130 N.M. 679, 30 P.3d 368. V. PROBABLE CAUSE. Misdemeanor arrest rule. — A police officer may properly arrest an intoxicated driver standing outside his vehicle when the officer has not observed him driving. The misdemeanor arrest rule is satisfied where the officer may reasonably infer from the direct and circumstantial evidence that the driver is intoxicated and has recently been in actual physical control of the vehicle. State v. Reger , 2010-NMSC-056, 148 N.M. 342, 236 P.3d 654 Misdemeanor arrest rule does not apply to DWI investigations. — Where a shopping mall employee saw a person staggering around the mall parking lot attempting to unlock different vans; the person eventually unlocked the door to a van and drove away; the employee gave the police a description of the van and the van's license plate number; a police officer went to the van's registered owner's address and observed a van that matched the employee's description in the driveway; the van's engine was warm; the officer knocked at the front door of the residence; the officer observed defendant stagger past the doorway, strike defendant's head on the wall next to the door, and fall; defendant staggered to the door a second time, fell, and opened the door from a sitting position; defendant told the officer that defendant had been driving the van earlier; and defendant had a strong odor of alcohol in defendant's breath, slurred speech, blood-shot eyes, and was unsteady, defendant's arrest for DWI was valid. City of Santa Fe v. Martinez , 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275. An investigating officer need not observe the offense in order to make a warrantless arrest. Instead, the warrantless arrest of one suspected of committing DWI is valid when supported by both probable cause and exigent circumstances. City of Santa Fe v. Martinez , 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275. Reasonable suspicion for traffic stop. — Where a police officer was driving on a county road, the officer observed the defendant come to a stop at a "T" intersection between the county road and an access road; there were no other vehicles on the county road or the access road; as the officer passed through the intersection, the officer observed that the defendant did not have his turn signal engaged; after the officer passed the defendant, the officer never saw the turn signal on the defendant's vehicle engaged; the defendant turned onto the access road without engaging the turn signal; the officer stopped the defendant for turning without using a turn signal and determined that the defendant was intoxicated, the trial court properly denied the defendant's motion to suppress evidence obtained at the traffic stop, because the officer had a reasonable particularized suspicion that the defendant had violated Section 66-7-325 NMSA 1978, which justified the stop at its inception. State v. Hubble , 2009-NMSC-014, 146 N.M. 70, 206 P.3d 579. Reasonable suspicion supports a traffic stop when it is based on an officer's knowledge that the driver's license of the driver was suspended or revoked. — Where a police officer made a traffic stop of defendant's vehicle based solely on his belief that defendant had a suspended driver's license, which was based on two prior encounters with defendant where defendant was driving with a revoked or suspended driver's license and having heard on the police radio three or four weeks earlier that defendant was arrested for driving with a suspended or revoked driver's license and DWI, the district court erred in granting defendant's motion to suppress, because the officer's stop of defendant was supported by a constitutionally sufficient reasonable suspicion that defendant was driving with a suspended or revoked driver's license. State v. James , 2017-NMCA-053, cert. denied. Probable cause. — The smell of alcohol emanating from the defendant, the defendant's lack of balance, and the manner of the defendant's performance of field sobriety tests constituted sufficient circumstances to give the officer the requisite objectively reasonable belief that the defendant had been driving while intoxicated and to proceed with breath alcohol content tests, and constituted probable cause to arrest the defendant. State v. Granillo-Macias , 2008-NMCA-021, 143 N.M. 455, 176 P.3d 1187, cert. denied, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 674. Reasonable suspicion raised by citizen-informant. — Information from a citizen-informant may be relied on by an officer to raise a reasonable suspicion that a person is driving while intoxicated, justifying an investigatory stop. State ex rel. Taxation & Revenue Dep't Motor Vehicle Div. v. Van Ruiten , 1988-NMCA-059, 107 N.M. 536, 760 P.2d 1302, cert. denied, 107 N.M. 413, 759 P.2d 200. Valid investigatory detention. — Where an officer received a dispatch that a caller had reported a "parked DWI in the parking lot" of a restaurant, described the subject vehicle, gave a partial license plate number for the vehicle, reported that a male subject who smelled of alcohol had entered the restaurant, passed out in the bathroom for a period of time, left the restaurant and then got into a dark blue vehicle, and then drove the vehicle from one parking space to another, almost striking several other vehicles in the parking lot, and where the officer, upon arriving on the scene minutes after receiving the dispatch call, found a vehicle matching the caller's description, the officer could reasonably infer that the car was the subject of the dispatch, and could reasonably suspect that the man described by the caller might be in the car and that he might have engaged in the criminal activity of driving while intoxicated; an investigatory detention and seizure of the car and its occupants was justified because the information provided by dispatch and the officer's own corroborating observation identifying the subject car would lead a person of reasonable caution to suspect criminal activity involving the car and its occupants. State v. Simpson , 2016-NMCA-070, cert. denied. Officer's conduct in opening the door of a vehicle did not transform a lawful investigatory detention into a search requiring a warrant. — Where an officer received a dispatch that a caller had reported a "parked DWI in the parking lot" of a restaurant, described the subject vehicle, gave a partial license plate number for the vehicle, reported that a male subject who smelled of alcohol had entered the restaurant, passed out in the bathroom for a period of time, left the restaurant and then got into a dark blue vehicle, and then drove the vehicle from one parking space to another, almost striking several other vehicles in the parking lot, and where the officer, upon arriving on the scene minutes after receiving the dispatch call, found a matching vehicle, with very dark tinted windows preventing the officer from seeing inside the vehicle to determine what the occupants were doing, an investigatory detention and seizure of the car and its occupants was justified, and the officer's conduct in opening the door did not transform a lawful investigatory detention into a search requiring a warrant, because it was the safest way to make contact with the car's occupants, and under the circumstances, it was reasonable for the officer to open the car door, enabling the officer to see both occupants and remain outside while conducting his investigation. State v. Simpson , 2016-NMCA-070, cert. denied. DWI test predicated on careless driving stop in parking lot valid. — Although careless driving cannot be committed in a parking lot, police officer who witnessed defendant driving at an excessive speed in a crowded parking lot had reasonable, although mistaken, suspicion to stop defendant, and such stop could be the predicate for a DWI test. State v. Brennan , 1998-NMCA-176, 126 N.M. 389, 970 P.2d 161, cert. denied, 126 N.M. 532, 972 P.2d 351. VI. PROCEDURE. Sufficiency of complaint. — A criminal complaint for driving under the influence of intoxicating liquor requires a more specific description of the offense than simply "DWI" because those initials standing alone could mean driving either while under the influence of alcohol or while under the influence of drugs. State v. Raley , 1974-NMCA-024, 86 N.M. 190, 521 P.2d 1031, cert. denied, 86 N.M. 189, 521 P.2d 1030. Defense of duress. — There is no requirement that a defendant admit to impairment in order to assert duress as a defense to a DWI charge. State v. Tom , 2010-NMCA-062, 148 N.M. 348, 236 P.3d 660. Duress does not negate an essential element of the charged offense. — Where defendant was charged with aggravated DWI and careless driving, and where defendant claimed that circumstances required her to drive in violation of the law, the metropolitan court did not err in refusing defendant's tendered instruction that imbedded the absence of duress as an essential element of aggravated DWI, because a defendant pleading duress is not attempting to disprove a requisite mental state, but defendants in that context are instead attempting to show that they ought to be excused from criminal liability because of the circumstances surrounding their intentional act. State v. Percival , 2017-NMCA-042. Collateral attack on pri
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