Avoiding Arrest, Part 3: Dos and Don’ts of a Traffic Stop

Never admit to having used any kind of alcohol or drugs to an officer, regardless of the circumstances of your stop. Always remember that even prior to your arrest and being read your Miranda rights, certain pieces of information will remain admissible as evidence, such as what gave the officer reasonable cause to detain you in the first place.  If you give the officer no such cause and you are subsequently arrested, you may be able to use your own good behavior prior to the arrest as proof that the officer had no reason to detain you in the first place.

It is perfectly fine to alleviate an officer’s concerns by offering to get a ride home with a friend or take a cab.  If they accuse you of knowing that you should not be driving, let them know that you absolutely do not agree that you are impaired in any way, but that you realize the officer is trying to do his job, and you are more than willing to cooperate in every way by obtaining alternative transportation home.

Even if you “play by the rules” all the way through the traffic stop, and even if you really are not impaired by alcohol, you may still be arrested.  However, it is important that you still remain calm.  Police officers are charged with the responsibility of keeping society safe, and if they have any suspicion that you have or will commit a crime, it is their responsibility to arrest you.  It does not mean that you will actually be charged or go to trial. It does mean, however, that you will be asked to consent to alcohol concentration tests.  If an officer smells alcohol on your breath or if you admit to having drinks before driving, you are more likely to be arrested.

Remember, the only true way to avoid being arrested for a DWI is to not drink and drive. Anyone who has had even one drink and then gets behind the wheel runs the risk of being detained or arrested for a DWI.

If you are stopped by police, remain calm and polite. Do not admit to any wrongdoing, whether it be a traffic violation or drinking before driving.  Remember that your behavior may affect whether or not you are further detained by the officer.
Willingly comply with providing your license and proof of insurance/registration card to the officer.  Do not, however, agree to any field sobriety testing.  Be polite, but firmly refuse. Do not get out of the vehicle unless you are ordered to (not requested to, but required to) by the officer.

Ask to contact your attorney immediately, and offer to get a ride home or take a cab if the officer is concerned.  Be clear about your reasons for doing this – that you are attempting to cooperate with the officer, but do not agree with his or her assessment of your impairment.

Refusing an alcohol concentration test may be admissible as evidence against you and will result in up to a two-year license suspension.  Remember that in some cases, such as when there is an accident or a death, you may be compelled to comply with alcohol concentration testing. In the next chapter, we will go over in more detail what happens if you get arrested.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.

Sobering Statistics on DWI in New Hampshire

The good news is that statistics on DWI reported by the National Highway Transportation and Safety Administration (NHTSA) for 2007-2008, showed a 9.7% reduction in drunken driving fatalities in the United States. Early reports for 2009-2010 look more promising.

The bad news, according to the Century Council – an organization of distillers dedicated to fighting drunk drivers – is that even though total cases of DWI declined in that period, New Hampshire showed a 32.4% increase in DWI-caused fatalities. In 2007, 34 people died in alcohol related car crashes, and in 2008, there were 45 such deaths.

The worse news, according to this report, is that even though underage DWI deaths declined across the U.S. during 2007 and 2008, New Hampshire saw almost a 300% spike in deaths resulting from impaired drivers in the16- to 20-year-old population. This percentage is very misleading. New Hampshire is a small state (population of 1.3 million) and only 8 underage drivers and/or passengers died in 2008, and 3 in 2007. Still, statistics show trends and the public should take heed. Even one underage death is too many.

DWI Law in New Hampshire: Fines and Penalties

New Hampshire has been very proactive in trying to lower DWI-fatality rates. Following is just a sampling of the fines and penalties one can expect if caught driving while intoxicated.

  • First Offense — $500 minimum fine plus 24% penalty totaling $620; suspended license for nine months; completion of impaired driver intervention program.
  • Second Offense (if within 2 years of previous DWI conviction) –  $750 fine plus 24% penalty totaling $930; minimum of 30 days in jail; three-year minimum suspended license; 12-month period requiring ignition interlock device on vehicles.
  • Third Offense — $750 minimum fine; minimum of 180 days in jail; 28-day minimum stay at a residential treatment program; license suspended indefinitely.

Punishment is greater if convicted of Aggravated DWI, such as driving 30 mph over the speed limit; causing an accident resulting in serious injury; attempting to flee a law enforcement officer; driving with a passenger 16 years or younger; or having a blood alcohol level (BAC) of .16 or higher.

Blood Alcohol Levels (BAC)

You are considered a DWI case if you have a BAC of .08 or higher; if you are under 21 with a BAC rate of .02 or higher; or if you driving a commercial vehicle with a BAC of .04 or higher. It’s difficult to know how many drinks you can have and still be under the legal limit, so don’t drink if you know you are going to drive.

If you arrested for DWI, however, you have certain rights. Call a DWI lawyer as soon as possible who has experience dealing with DWI laws in New Hampshire. You want an attorney that understands NH DWI laws inside and out; knows the technical aspects of the Intoxilyzer 5000 (a breathalyzer test), one who knows how to keep you out of jail, and one that can work to prevent your license suspension.

Alcohol Concentration Test Refusal in New Hampshire

Since New Hampshire’s laws assume that you automatically give consent to test for alcohol under the implied consent rule, if you are injured or incapacitated in any way and thus incapable of refusing to take an alcohol concentration test, you have not waived your permission to be tested.

The Supreme Court of New Hampshire has time and again upheld the implied consent rule and admitted the evidence of sobriety field tests and blood-alcohol chemical tests even when the defendant has motioned for the results to be suppressed.

When Should You Refuse Testing?
Obviously, having a DWI conviction on your record is something you want to avoid at all costs, and the prosecutor will have a more difficult time proving your guilt without the solid evidence of the results of a blood-alcohol chemical test to present. However, refusing to submit to the test results in an automatic 180-day license suspension or more – even if you are later found not guilty of the actual DWI charge.

Additionally, even if you refuse testing, if the police officer can provide enough other evidence to a judge that there is reasonable cause to believe that you are under the influence of alcohol, then a warrant ordering you to provide a blood sample or submit to other testing may be issued. Even without alcohol concentration testing, the officer’s testimony about your behavior, as well as other evidence or witnesses can still be used to convince a judge or jury of your guilt.

Furthermore, if you are involved in an accident, particularly one with injuries and/or a resulting death, there will most likely be no way to avoid the testing. You do have the right to have enough breath, urine, or blood taken so that you can have the second sample independently tested, and the officers must provide you with the results of their testing within 48 hours, otherwise the results may be ruled inadmissible as evidence.

Can Your Refusal Be Used as Evidence?
If you refuse to consent to an alcohol concentration test, that refusal may be admitted as evidence against you at your trial.  Refusing to take the test can make it appear as though the only reason you would refuse would be because you knew your alcohol concentration was over the legal limit.  While some states instruct their juries to ignore the refusal and admit it only as proof that a test was offered, New Hampshire allows it as evidence that can be used against you and you will be instructed of this if you have been arrested and refuse to submit to the test.

Attempts to suppress this evidence have been unsuccessful and the courts have consistently said that as long as the jury is instructed to consider the evidence and come to their own conclusions, it violates neither self-incrimination rights nor prevents the defendant from providing other evidence about why the test was refused.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.

Implied Consent and the Alcohol Concentration Test

New Hampshire law states that, “Any person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state … shall be deemed to have given consent to physical tests and examinations for the purpose of determining whether such person is under the influence of intoxicating liquor or controlled drugs, and to a chemical, infrared molecular absorption, or gas chromatograph test or tests of any or all of any combination of the following: blood, urine, or breath, for the purpose of determining the controlled drug content of such person’s blood or alcohol concentration if arrested for any offense arising out of acts alleged to have been committed while the person was driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle … while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration in excess of the statutory limits.”

Basically, if you drive in New Hampshire, whether or not you are licensed to drive by the state of New Hampshire, you have agreed that you will willingly comply with alcohol concentration tests, whether the request is for breath, blood or urine testing.

Refusing the Test
In New Hampshire, your refusal to take an alcohol concentration test can be admitted into evidence and used against you at your trial. In addition, if you are arrested and you refuse to take the alcohol concentration test requested by the officer, your license will be suspended for 180 days, even if you have no prior DWI conviction.  If you have a prior conviction – or even a prior refusal without a conviction – your license will be suspended for two years. Even worse, the suspension for refusing to take the alcohol concentration tests is not allowed to be served concurrently (at the same time) with any other punishment, but instead is an additional punishment that is tacked on to whatever other suspension you receive if convicted.  The suspension will be upheld even if you are found not guilty at your trial.

If you refuse to take the test, the officer will not force you to take it, but you will automatically lose your driving privileges in New Hampshire for doing so.  While you will have the right to appeal the suspension, the New Hampshire courts tend to support the implied consent regulation and uphold license suspensions.

Taking the Test
In the state of New Hampshire, if you take the alcohol concentration test and your results show an alcohol concentration above the legal limit, you will lose your license. However, while you must immediately surrender your license to the officer (both in the case of refusing to take the test and in the case of having results above the legal limit) the officer will issue you a 30-day temporary permit, because the suspension itself requires 30 days’ notice.  During the 30-day notice period, you can appeal the suspension. The burden of proof is on you as the petitioner to demonstrate that the stop should not have been made because the officer had no reasonable grounds to arrest you.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.