A Warrant for a Blood Test
Section 66-8-111 — after a refusal, no test without a judge's search warrant
When a person under arrest for a motor vehicle offense refuses an officer's request to take the chemical tests, none is given unless a municipal judge, magistrate or district judge issues a search warrant authorizing them.
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The judge issues one on finding, in the officer's written affidavit, probable cause to believe the person drove under the influence of alcohol or a controlled substance and caused the death or great bodily injury of another person, or committed a felony or misdemeanor while under the influence and that the tests will produce material evidence in a criminal prosecution.
How a warrant is served is also measured by the Fourth Amendment. The Supreme Court of the United States has held that whether officers knocked and announced their presence before entering is part of whether the entry was reasonable, and that the knock and announce principle forms part of that analysis rather than being a rigid rule without exceptions. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
The Fourth Amendment draws its firmest line at the entrance to a home, and the Supreme Court of the United States has held where it falls in situations police meet at a door. Absent consent or exigent circumstances, officers may not enter a home without a warrant to make a routine felony arrest. Where one occupant consents to a search of a shared home and another who is physically present expressly refuses, the search is unreasonable as to the one who refused. And officers may enter without a warrant when they have an objectively reasonable basis for believing someone inside is seriously injured or imminently threatened with such injury. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
Sources for this section (5)
- NMSA 1978, § 66-8-111 — Refusal to submit to chemical tests; testing; grounds for revocation of license or privilege to drive
- Wilson v. Arkansas, 514 U.S. 927 (1995) — Knocking and announcing is part of whether an entry is reasonable
- Payton v. New York, 445 U.S. 573 (1980) — Warrantless entry into a home to make a routine arrest is barred
- Georgia v. Randolph, 547 U.S. 103 (2006) — A present occupant's refusal defeats another occupant's consent
- Brigham City v. Stuart, 547 U.S. 398 (2006) — Police may enter to render emergency aid
Legal information, not legal advice. Verified as of November 2026. Applying it to a particular situation is the work of a licensed New Mexico attorney.