ALBUQUERQUE, NM (KRQE) – A woman convicted of aggravated DWI is taking her case to the state Supreme Court, saying she was charged too harshly.

The decision could set a precedent: If she wins, law enforcement could lose a powerful and convenient tool they use to charge drunk and drugged drivers.

Loressa Vargas blew a .04 and .05 during a breathalyzer test after she was pulled over by a Bernalillo County Sheriff’s deputy in April 2011.

She was initially convicted of aggravated DWI in District Court because she failed the field sobriety tests and showed signs of impairment, along with the refusal to take a blood test.

Ousama Rasheed with the New Mexico Criminal Defense Lawyers Association said are three things that aggravate a DWI charge: Being in an accident with minor injuries, submitting to a BAC test that’s a .16 or higher or refusing chemical testing. The aggravated charge calls for mandatory jail time and additional penalties.

The Court of Appeals lowered her conviction to a simple DWI because there was no proof it was aggravated without a blood test — a blood test they said would have been unconstitutional without a warrant.

“This is the first time that the New Mexico Supreme Court has had to deal with the ramifications of the United States Supreme Court decision in Birchfield v. North Dakota,” Vargas’s attorney, Steven Forsberg said.

That 2016 North Dakota case states an officer can’t make a driver take an invasive blood test without a warrant in misdemeanor cases.

“The state can’t threaten you in order to make your permission,” Forsberg said. “I think that is an important principle to uphold.”

Prosecutors are asking the state Supreme Court to affirm Vargas’s aggravated DWI conviction, arguing the federal ruling should not apply to cases before 2016.

New Mexico’s Implied Consent Act gives officers the ability to charge drivers who refuse to take a breathalyzer or blood test with aggravated DWI, leverage officers use to persuade people to take the tests — which frequently happens.

Rasheed said this case could change the precedent for how officers charge people.

“It’s about whether you can then increase the penalty for somebody refusing an unconstitutional search,” he said. “Once Birchfield came out there were a lot of people who were raising this issue in blood test cases.”