N.M. Stat. § 66-8-109 (2026)

additional tests. A. Only the persons authorized by Section 66-8-103 NMSA 1978 shall withdraw blood from any person for the purpose of determining its alcohol or drug content. This limitation does not apply to the taking of samples of breath.

B. The person tested shall be advised by the law enforcement officer of the person's right to be given an opportunity to arrange for a physician, licensed professional or practical nurse or laboratory technician or technologist who is employed by a hospital or physician of his own choosing to perform a chemical test in addition to any test performed at the direction of a law enforcement officer.

C. Upon the request of the person tested, full information concerning the test performed at the direction of the law enforcement officer shall be made available to him as soon as it is available from the person performing the test.

D. The law enforcement agency represented by the law enforcement officer at whose direction the chemical test is performed shall pay for the chemical test.  E. If a person exercises his right under Subsection B of this section to have a chemical test performed upon him by a person of his own choosing, the cost of that test shall be paid by the law enforcement agency represented by the law enforcement officer at whose direction a chemical test was administered under Section 66-8-107 NMSA 1978.

History: 1953 Comp., § 64-8-109, enacted by Laws 1978, ch. 35, § 517; 1993, ch. 66, § 10.

ANNOTATIONS

The 1993 amendment, effective January 1, 1994, substituted "alcohol or drug content" for "alcoholic content" at the end of the first sentence of Subsection A, inserted "be advised by the law enforcement officer of the person's right to" near the beginning of Subsection B, deleted "or tests" following "test" in Subsection C, and made minor stylistic changes in Subsections A and E.

Requirement that law enforcement officers advise arrestees of the right to an independent chemical test. — The Informed Consent Act requires a law enforcement officer, based on the totality of the circumstances, to use reasonable methods that would reasonably convey to a DWI arrestee the existence of the right to arrange for an independent chemical test. State v. Nieto Ladino, 2026-NMCA-005.

Manner in which Informed Consent Act advisory must be conveyed. — Where a New Mexico state police officer arrested defendant, a Spanish speaker, for DWI, and where, prior to transporting defendant to a New Mexico state police station to conduct a chemical breath test, the officer read an Informed Consent Act (ICA) advisory to defendant aloud in English, showed defendant an ICA advisory poster printed in Spanish, and after each of these two attempts to advise defendant of his statutory right under 66-8-109(B) NMSA 1978 of the ICA, the officer asked defendant if he understood, and defendant said, "Yes," and where the metropolitan court judge granted defendant's motion to suppress and dismissed the charges, concluding that the Informed Consent Act (ICA) required the arresting officer to recite the ICA advisory to defendant in Spanish, the metropolitan court judge erred in dismissing the charges, because the ICA requires a law enforcement officer, based on the totality of the circumstances, to use reasonable methods that would reasonably convey to a DWI arrestee the existence of the right to arrange for an independent chemical test, and, under the present circumstances, the officer used reasonable methods to reasonably convey the ICA advisory. State v. Nieto Ladino, 2026-NMCA-005.

Reading contents of implied consent card. — Where officer read to defendant the contents of an implied consent card issued by the New Mexico Scientific Laboratory Division, which contains, among other statements, the statement that a subject has the right to an independent blood alcohol test, the officer informed defendant of his right to an independent test. State v. Duarte, 2007-NMCA-012, 140 N.M. 930, 149 P.3d 1027. Reasonable opportunity to arrange for an additional chemical test. — Law enforcement is required to provide a reasonable opportunity for an arrestee to arrange for an additional chemical test by a qualified professional in addition to any test performed at the direction of law enforcement, and to pay for that test if the arrestee chooses to have it. At a minimum, law enforcement must advise an arrestee of the right to an additional test, the arrestee must be provided with the means to contact a person of the arrestee’s choosing in order to arrange for a chemical test, and police may not unnecessarily hinder or interfere with an arrestee’s attempt to exercise the right to an additional test. State v. Chakerian, 2018-NMSC-019, rev'g 2015-NMCA-052, 348 P.3d 1027.

Where defendant was arrested for DWI, administered two breath tests by the arresting officer, and advised of his right to arrange for an independent test of his blood, and where defendant expressed a desire to exercise his right to an additional test, and where the officer gave defendant approximately fifteen minutes with a phone and a phone book to seek an additional test, during which time defendant wrote down some numbers but chose not to make any phone calls, the officer's actions were sufficient to afford defendant a reasonable opportunity to obtain an independent chemical test and the officer did not in any way obstruct defendant from calling anyone. State v. Chakerian, 2018-NMSC-019, rev'g 2015-NMCA-052, 348 P.3d 1027.

Opportunity to arrange for additional chemical test interpreted. — Subsection B of this section provides that a person accused of DWI who takes the test ordered by the arresting officer then has a right in the form of an opportunity to arrange for an independent blood test to challenge any disparate results; the plain meaning of the statute imposes a duty that requires law enforcement to meaningfully cooperate with an arrestee’s express desire to arrange for an independent blood test. State v. Chakerian, 2015-NMCA-052, cert. granted, 2015-NMCERT-005.

Where defendant was arrested for DWI, was administered a breath test by the arresting officer, and was advised of his right to arrange for an independent test of his blood, and where defendant requested that he be afforded that right, the arresting officer’s actions in merely giving defendant a telephone and a Yellow Pages telephone book, without any further assistance in locating a person who was authorized to draw blood or test blood for alcohol content, were not sufficient to provide an ordinary person with the means to reasonably obtain an independent test of his or her blood to determine its alcohol content as required by 66-8-109(B) NMSA 1978. State v. Chakerian, 2015- NMCA-052, cert. granted, 2015-NMCERT-005.

Remedy for violation of statutory right to independent blood test. — The remedy for a violation of a driver’s right under 66-8-109(B) NMSA 1978 lies in the discretion of the trial court, subject to review on appeal for an abuse of discretion; a trial court may consider all the facts of the case, including whether trial is before a jury or the bench, the materiality of the blood test results, and prejudice to the defendant. State v. Chakerian, 2015-NMCA-052, cert. granted, 2015-NMCERT-005. Opportunity to arrange for independent chemical test does not require law enforcement to transport person being tested. — Where defendant was arrested on suspicion of driving under the influence of intoxicating liquor, and at defendant’s request for an independent chemical test, the arresting officer provided defendant with a telephone and a telephone directory with which defendant arranged for a blood draw from a local hospital, the officer’s refusal to transport defendant to the hospital for the chemical test did not violate defendant’s rights under 66-8-109(B) NMSA 1978; the Implied Consent Act does not require a law enforcement officer directing chemical testing of a driver arrested on suspicion of DWI to transport the driver to another location to receive an independent test that the driver has arranged. State v. Maxwell, 2016-NMCA-061, cert. granted.

Accused need not be told of right to additional tests. — There is no constitutional reason, either state or federal, which confers upon the accused a right to be expressly told that he has an opportunity, under this section, to have additional tests performed by any qualified person of his choosing. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.

Neither statutes nor the constitution requires that defendant be told that he has the right to an additional breath test. City of Farmington v. Joseph, 1978-NMCA-011, 91 N.M. 414, 575 P.2d 104.

Officer did not violate the Implied Consent Act by failing to arrange for a chemical test when defendant never asked for an opportunity to arrange for an additional blood test. — Where arresting officers pulled over defendant's vehicle, administered field sobriety tests, and placed her under arrest for DWI, and where defendant initially declined to take a breath test and requested a blood test instead but ultimately consented to a breath test which measured two samples of defendant's breath alcohol content at 0.19 and 0.18, respectively, the district court did not err in denying defendant's motion to exclude the breath test results on the grounds that the officer failed to give her an opportunity to arrange for a chemical test in addition to the breath test, because defendant did not, after submitting to the breath test, ask for an opportunity to arrange for an additional blood test. State v. Smith, 2019-NMCA-027, cert. denied.

Omission of "of his own choosing". — Officer's recitation of defendant's rights adequately conveyed to defendant the right to independent testing, notwithstanding the fact that the officer omitted the language "of his own choosing" from his recitation of Subsection B. State v. Jones, 1998-NMCA-076, 125 N.M. 556, 964 P.2d 117.

Miranda-type warnings are necessary only in situations of either testimonial or communicative evidence, and New Mexico has consistently excluded physical evidence from the scope of the protection; therefore, it follows that an accused has no constitutional right to a warning concerning the consequences of refusing a blood test. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280. Harmless error. — Although defendant's right to an independent test was infringed upon by officer who denied him the right to call his physician, the error was harmless, in light of the overwhelming evidence establishing defendant's intoxication, including his appearance, odor, speech and failing of three field sobriety tests, in addition to the fact that defendant's blood-alcohol level of .17 was far above the legal limit. State v. Jones, 1998-NMCA-076, 125 N.M. 556, 964 P.2d 117.

State test results admissible despite defendant's inability to test sample. — Although defendant had no opportunity to test the same sample, the results of the state's tests were admissible regardless of this fact as the record shows neither intent on the part of the state to destroy evidence nor any negligence by the state since all the blood was used in the tests conducted. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.

No right to counsel when under custodial arrest following testing. — A person issued a citation and placed under custodial arrest for driving while under the influence of intoxicating liquor does not have a constitutional right to counsel immediately following a breath alcohol test since it did not amount to initiation of judicial criminal proceedings or prosecutorial commitment, nor was the period following administration of the test a critical stage. State v. Sandoval, 1984-NMCA-053, 101 N.M. 399, 683 P.2d 516.

Substantial evidence supported finding that defendant did not request a blood test. — Where defendant was arrested for driving while intoxicated; the arresting officer administered a breath alcohol test; defendant claimed that the officer refused to allow defendant to obtain an independent blood test; the officer testified that the officer informed defendant of defendant’s right to take a breath test by reading the Implied Consent Act to defendant, that defendant consented to a breath test, and that defendant never indicated that defendant wanted a second test, the officer’s testimony provided substantial evidence to support the district court’s finding that defendant did not request an additional test. State v. Anaya, 2012-NMCA-094, 287 P.3d 956, cert. denied, 2012- NMCERT-007.

Certified phlebotomist was a laboratory technician for purposes of the Implied Consent Act. — Where defendant was arrested for DWI, agreed to a blood test and was transported to a hospital where a certified phlebotomist drew his blood for testing, and where defendant moved to exclude his blood test results, asserting the evidence was insufficient to demonstrate the testing was conducted in accordance with § 66-8- 103 NMSA 1978, the district court did not abuse its discretion in denying defendant's motion and in concluding that the certified phlebotomist was qualified to draw blood as a laboratory technician, because the phlebotomist in this case completed a phlebotomy course from eastern New Mexico university, received a certificate demonstrating that she was a certified phlebotomist, was hired as a clinical lab assistant to perform blood draws, received additional training in blood draw procedures, and performed approximately fifty blood draws during each of her shifts. The phlebotomist in this case had the requisite training and experience to draw defendant's blood in accordance with the Implied Consent Act. State v. Warford, 2022-NMCA-034.

Certified phlebotomist was "employed" by a hospital within the meaning of the Implied Consent Act. — Where defendant was arrested for DWI, agreed to a blood test and was transported to a hospital where a certified phlebotomist drew his blood for testing, and where defendant moved to exclude his blood test results, asserting that even if the phlebotomist was deemed a technician or technologist, she was not qualified to perform his blood draw because she was not employed by a hospital or physician as specified in § 66-8-103 NMSA 1978, the district court did not abuse its discretion in denying defendant's motion to exclude, because the hospital contracted with the company that employed the phlebotomist, which hired her to perform blood draws, trained her in blood-draw procedures and determined that she was qualified to perform blood draws, including legal blood-draw tests; the phlebotomist was an employee of the hospital for the purposes of the Implied Consent Act. State v. Warford, 2022-NMCA- 034.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Necessity and sufficiency of proof that tests of blood alcohol concentration were conducted in conformance with prescribed methods, 96 A.L.R.3d 745.

Request for prior administration of additional test as constituting refusal to submit to chemical sobriety test under implied consent law, 98 A.L.R.3d 572.

Drunk driving: motorist's right to private sobriety test, 45 A.L.R.4th 11.

Authentication of blood sample taken from human body for purposes of determining blood alcohol content, 76 A.L.R.5th 1.

Authentication of blood sample taken from human body for purposes other than determining blood alcohol content, 77 A.L.R.5th 201.