Refuse DWI breath test? What happens?

ALBUQUERQUE (KRQE) - Getting behind the wheel drunk is the first mistake, according to prosecutors, but the second could be refusing to take a breath test.

"I can use that as one of the facts in my trial, if we go to trial," said Assistant Bernalillo County District Attorney Candace Kouslon. "You knew you had consumed alcohol, and that's why you didn't blow."

Albuquerque police say about 20 percent of DWI suspects refuse the breath test. Linda Atkinson with the DWI Resource Center said that's because drivers think it will help their case.

"It's a myth," said Atkinson. "There are other signs that law enforcement know about that could be signs of intoxication. They're driving without headlights on, they're weaving, they're not maintaining the traffic lane, too fast, too slow."

Law enforcement officials often can smell the alcohol on the suspected drunken driver, or the person can't complete field-sobriety tests, prosecutors say.

But DWI defense attorneys said breath tests make their jobs tougher. Lawyer David Serna said the tests, which are usually given some time after the driver is arrested, don't show the true blood alcohol level at the time of the traffic stop.

"People who are not intoxicated when the police stop them, if they have recently consumed alcohol, their alcohol level continues to rise and continues to rise," said Serna. "So by the time the police officer gives them a breath test an hour or two later, they're going to look intoxicated even though they weren't intoxicated when they were driving."

But Serna said refusing the breath test comes with big risks. A driver who refuses to blow is automatically charged with aggravated DWI, the same charge that very drunk drivers face.

Under New Mexico law, drivers also sign off on taking a blood test or breath alcohol test just by getting a driver's license. Licenses are automatically revoked if drivers refuse the breath test.

"If you win, you're off scot-free, and if you lose, you're getting a much more severe sentence," said Serna.