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.

The Right to Remain Silent

If you are arrested, you must do everything you can to protect your rights.  Any attempt you make to explain the situation, and anything you do that can later become part of the testimony used to convict you, will only make your case more difficult to defend.  The United States Constitution guarantees you the right to be free from self-incrimination. That is why, when the police officer arrests you, they tell you that you have the right to remain silent. Exercise that right!

Once you have been read your Miranda rights, you must inform the officer of your intent to remain silent, but even if you forgot and began talking, you can stop at any time without it being used against you. Do realize that your right to remain silent does not prevent you from having to cooperate with the officer and provide your name, identification, proof of insurance, etc., but you do NOT have to answer questions about where you were, what you were doing, how many drinks you had, or anything else related to your arrest.

Unless you are in an accident, injure someone or are stopped at a sobriety roadblock check point, you will most likely be stopped based on an officer’s reasonable suspicion that you are driving while intoxicated or for another motor vehicle violation.  Reasonable suspicion is less strict than probable cause, which is required to arrest you. New Hampshire’s exact requirements for probable cause have not come through the courts and remain ill-defined, but cases have been overturned for lack of probable cause. In court, the police officer may be required to testify about what gave them probable cause to arrest you, which may include your physical appearance at the time of the traffic stop (having bloodshot eyes, slurring your speech, weaving or being unable to control your gross motor functions), the odor of alcohol, evidence of alcohol containers visible in your vehicle, or your inability to pass sobriety field tests.

Remaining silent is critical to preventing the officer from obtaining any evidence that may later be used in court to incriminate you. While you should be polite and cooperative about providing your identification and registration, the officer will be asking you questions, not to hear the answers, but to identify if you are slurring your speech or have the smell of alcohol on your breath.

Trying to explain what you were doing, where you were going, or how much you had or had not been drinking will NOT help you avoid arrest.  Remaining calm and polite, not fumbling around for your information, and speaking clearly when you must speak are important details. Keep your answers short and to the point; do not become belligerent.

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.

Avoiding a DWI Arrest, Part 1: Don’t Pull Over

If a police officer directs you to pull over by either activating his emergency lights or motioning to you, you must follow his directions. However, if an officer is simply following you, you do not have to pull over. It is not against the law to share road space with a police car.

People get nervous when they see an officer and sometimes their first instinct is to pull over, even without be required to do so. Resist the urge to pull over. Just do not do it. You are completely within your rights as a citizen to continue driving (making sure you are obeying the rules of the road and thereby not giving the officer any reason to pull you over) to your destination unless the officer flashes his lights or motions for you to pull over.

You are protected to a great degree by the Fourth Amendment to the United States Constitution.  The United States Supreme Court in Terry v. Ohio 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) created a guideline called the “Terry stop”.  The United States Supreme Court said an officer cannot stop you unless they have legal justification to do so (i.e., you run a red light, weave in and out of your lane, or do something else that causes suspicion).

However, an officer has the right to pull over a vehicle whose registered owner has a suspended license, as long as the officer believes that (1) the registered owner is driving or (2) “observes nothing to indicate that the driver is not the owner…”
Even if all you do is pull into a parking lot in an attempt to avoid the officer, the officer can then follow you into the parking lot, where you have voluntarily come to a stop, and confront you in an effort to determine if you are violating the law without having to have any reasonable suspicion. If you continue driving, however, and the officer is forced to put on his siren or flashing lights in order to pull you over, then the officer has to prove that you have done something worthy of being detained.

If the officer cannot prove that he had reasonable suspicion that you were committing or about to commit a crime which caused him or her to pull you over, your entire case can potentially be thrown out of court.

Stay tuned for Part 2: Clues to Inebriation

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.