My roommate is currently dealing with a DUI charge. He hasn’t gone to trial yet and is pleading not guilty. In New Mexico before you go to trial, they have a small pre-trial process. From what my roommate tells me, basically you go with your lawyer to meet with a lady whos job is to revoke driver’s licenses. All that happens is the officer shows up with you and your lawyer and the lady makes sure he did everthing by the book. Once she verifies the officer has, she takes your license away. I’m curious as to how the state can get away with this. There has been no trial, thus he is not guilty of anything, yet they revoke his license. If he is found not guilty at trial, he can go back to the DMV and pay all the fees and get a new license. Is this just a giant revenue generating machine?
Yes, it is a giant revenue generating machine. And DMV laws pertaining to drivers licenses in NM are particularly stiff IIRC. As for legality, we’ll have to wait for a doper-lawyer to come around.
IANAL, but I do know that since drivers licences are issued by the state, they can be revoked by the state.
As my parents said to me a couple of times in the past, “Driving is a privilege, not a right.”
Obviously, this depends on where you’re at and the specific laws in your local…
However, here in Alberta, last year they brought in immediate DUI suspension laws and they have been consistantly held up by the courts in these parts - a license to drive is not a right, so the DMV is perfectly within it’s rights to revoke the license for whatever reason it chooses, within reason.
Does saying that something “is a privilege and not a right” mean that due process doesn’t apply?
I am not an attorney in New Mexico. But what you describe appears to be a hearing for license suspension as a result of your friend’s either a) failure to allow testing of his breath alchohol, or b) his test coming back with a showing of impaired capacity.
To understand this, one must keep in mind that driving is a privilege accorded by the state, not a right. This means that, upon applying for and receiving a license to drive, one accepts the conditions set upon the license by the state. In many states, this includes an implied consent to submit to blood-alchohol content testing, and implied consent that the license can be revoked if the driver either refuses the test, or fails it.
In New Mexico, the relevant statutes appear to be Chapter 66, Article 8, Sections 105 to 112.
You would have to consult someone more familiar with New Mexico law to determine what effect, if any, a finding of not guilty at trial on the underlying charge of driving while under the influence of intoxicating liqour has on the suspension of the license.
Because this is an administrative issue, not a criminal issue, the standards applicable are not the same; there is no presumption of “innocence,” the determination doesn’t require evidence establishing proof beyond a reasonable doubt, etc. Your friend’s attorney will presumably know what, if any, challenge can be made to the evidence of the blood or breath alchohol test; if your friend refused to allow the test then the suspension is likely an open and shut issue, once the officer is able to articulate “reasonable grounds” for forming the opinion that your friend was operating a vehicle under the influence.
This sort of approach to arrests for DWI/DUI reflects a concern on the part of society, as articulated through our legislative representatives, that people who were arrested for such violations often continued to drive around afterward while awaiting trial, potentially engaging in further such indescretions, possibly causing death or injury to someone else. I personally find it quite ironic that legislators think that people who will chronically abuse driving privileges relative to alchohol consumption won’t also abuse them relating to license suspension.
I do note that reinstatement of license in New Mexico after revocation through operation of the Implied Consent Act requires an added $75 payment over and above the normal $25 payment required for reinstatement. This added fee is supposed to be appropriated to the “local governments road fund.”
And to forestall further questions regarding “due process”:
There is due process in New Mexico. The licensee is offered a hearing at his/her request into the underlying facts which are required for suspension. If the hearing establishes the absence of one of the facts, there will be no suspension. The relevant facts do not include guilt or innocence on the underlying DWUI charge. See New Mexico Statutes 66.8.112 for the hearing procedure and the requisite facts for suspension confirmation.
Due process is relative. When the issue is administrative action, it requires much less process than criminal sanctions.
This sounds like he attended an administrative license revocation (ALR) hearing. IANAL and I do not live in NM, but typically what happens is this. If he failed a breath test or refused the test, his license is suspended after a certain number of days. During that time he can ask for an ALR hearing. The only thing the hearing is for is to determine if the officer had probable cause and followed proper procedures (I think, Google for ALR to get more precise details.)
The state can revoke the license because the revocation is a statutory required administration action, not a court ordered one. I’m not sure about this, but I believe that if he took a breath test and passed but was charged with DWI anyway his license probably wouldn’t have been revoked.
Obviously the details vary from state to state and you should not rely on my general impression of the process as anything definative.
On preview, what DSYoungEsq said – except he said it better and in more detail. 
Makes sense to me, DSYoungEsq. I was just getting a feeling of skepticism over what seemed to me a growing idea in the thread that because a license is a “privilege” that the state can do basically anything.
By the way, Tezmac, be glad your friend isn’t in Ohio. Here, the reinstatement fee is $425. :eek:
IANAL, but I just wanted to chime in on the “due process” issue. The 5th amendment states that no person shall “be deprived of life, liberty, or property without due process of law.” Since this administrative hearing is not taking away your life or liberty, and the drivers license is technically the property of the state, due process does not apply here.
No kidding, but here’s the deal. In most states, suspensions aren’t all that serious. Personally, I have been arressted or detained for driving on suspension on five occasions. On the 5th occasion, I was finally punished. Three points, no fine, no time, no suspended.
Now granted that was about ten years gone by now, and none of the offenses were alcohol or drug related, but it didn’t stop me from getting a career in Law Enforcement.
Here in Maryland there’s an old joke about all that. Which is to say that the MVA will suspend your license if they even think you might be late in paying off whatever it is you owe them, lol. But there isn’t much follow up.
Ah, what you all say makes sense; no due process because it is a state sponsored thing. “Driving is a privledge, not a right.” Guess mom was always right huh? In our state there is a wait time as to when the breathalizer test is administered, I think it’s along the lines of 20 minutes. Well the officer at the checkpoint screwed up and didn’t wait the proper time and my roommate has the whole encounter on videotape. Basically the officer lied before the license revoking person. I just think it’s complete garbage that he has lost his license for something that will will get thrown out of court anyway and he won’t be proven guilty for. But then again, all he had to do was not drive if he was going to drink…
Yes, and aren’t you sorry you did, seeing as how the correct answer on due process was gien by DSY almost two hours before your chiming? Just be glad Bricker hasn’t seen this or your finger’d be in the cigar chopper already…
You do have a property interest in your driver’s license such that its suspension implicates the procedural arm of the Due Process Clause of the U.S. Constitution, as DSYoungEsq pointed out. For the purpose of suspension of a driver’s license due to failure to take a breathalyzer upon arrest for drunk driving, due process is satisfied by a post-suspension administrative hearing. Mackey v. Montrym, 443 U.S. 1 (1979).
It seems to me that DSYoungEsq has said that due process is required and it is satisfied by the administrative proceeding.
I originally was responding to Mausmagill’s use of the “privilege/right” thingy – which seemed to imply that driving being a privilege, due process is not required. It seems to me that DSYoungEsq has contradicted that idea.
I continue to suspect that the “X is a privilege, not a right” is not necessarily a very helpful model here – Yes, driving is a privilege. However, that doesn’t mean that due process is not required.
Here I am. And, yes, again I will point out that in GQ, people posting incorrect factual assertions, as Fat Bald Guy has done here, are undermining the value of the forum. If you don’t know, don’t post.
Fat Bald Guy is, as has been amply demonstrated, wrong in his claim.
Get out the cigar cutter.
- Rick