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Implied Consent in New Hampshire for DWI

Posted by Ryan Russman | Oct 28, 2013 | 0 Comments

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Almost as quickly as there were vehicles to contend with, there were laws describing how to handle drinking and driving.

Testing for alcohol concentration levels became a sure way for the state to ensure a conviction – it was undeniable proof of being over the statutory alcohol concentration limit (0.10 percent before 1994, 0.08 percent from 1994 to the present).

It should not be at all surprising that drivers who had been drinking began to refuse testing, which is why implied consent laws were enacted.

While the laws establishing implied consent are different in every state, the basic idea is the same: in order to get your driver's license, you have to sign an acknowledgment stating that you agree to comply with alcohol concentration testing.

However, you do not have to be a licensed driver in the state of New Hampshire to be subjected to the state's laws if you commit a crime here.

New Hampshire's implied consent laws state that just by driving on the road, whether you are driving with a New Hampshire driver's license or not, you have given consent to testing should you be arrested for suspicion of driving while intoxicated.

Protection Under the Law

If the officer fails to inform you of your rights under the implied consent law, the test results may be inadmissible.

The officer must inform you of your rights and have you sign an Administrative License Suspension (ALS) form.

Refusing to sign the form does not work to prove you were not made aware of your rights, but the officer must clearly explain to you that if you refuse to take the test, your refusal can be admitted as evidence against you.

To inform you of your implied consent rights, the officer must inform you of the following:

  1. You have been arrested for an offense arising out of acts alleged to have been committed while you were driving under the influence of alcohol or drugs.
  2. You are being asked to submit to a test or tests, at the discretion of a law enforcement officer, in order to determine the alcohol or drug concentration in your system. You may be asked to perform a breath, blood or urine, physical test, or any combination of these.
  3. You have the right to a similar test or tests of blood, urine or breath taken by a person of your own choosing at your own expense. Upon your request, you will be given the opportunity for such additional test(s). You also have the right to obtain a portion of the state's sample of your  blood, urine or breath for testing at your own expense.
  4. If you submit to a blood, urine or breath test which shows an alcohol concentration of 0.08 or more (or if you are under age 21, of 0.02 or more), your New Hampshire driver's license, operating privileges, non-resident operating privilege and/or right to drive in this state will be suspended.
  5. If you refuse to take a test or tests, the refusal can be admissible in court.

Refusals

If you refuse to submit to a test requested by the officer, your New Hampshire driver's license/operating privileges or non-resident operating privilege to drive in the state will be suspended.

The officer will actually confiscate your license and provide you with a temporary 30-day license (license suspensions in New Hampshire require a 30-day notice).

New Hampshire does not offer work permits or restricted licenses, so once you are without a license, you cannot drive until your license is restored (either through an administrative appeal or after the suspension term is completed).

Implied Consent Defenses

While none of these defenses will apply to an administrative license suspension, certain criminal defenses may be mounted.

Being arrested is the key: in order for the state to invoke implied consent, they must arrest you, and in order to arrest you, they must have reasonable suspicion to stop you in the first place.

It is in this area that your attorney may find the most leeway in building your defense.  Did the officer have a legitimate reason to pull you over?

Did he or she have probable cause to arrest you in the first place?

Did he or she inform you of your Miranda rights?

Did the officer provide you with your informed consent rights?

If you get arrested, your attorney will thoroughly examine the steps that were taken to ensure that your implied consent rights were not violated.

If you were allowed to have an attorney available at the time of the traffic stop, you would most likely be advised not to comply with the testing, regardless of the threat of suspension, because it is much more difficult for the state to prove their case without the specific “scientific” evidence of your alcohol concentration level.

Contact Attorney Ryan Russman for a free drunk driving case review.

About the Author

Ryan Russman

Attorney Ryan Russman has dedicated his career to fighting for the rights of New Hampshire citizens. His practice, based in Exeter (Rockingham County) New Hampshire, is limited to cases involving DWI and DUI, other motor vehicle and criminal cases, and many cases involving personal injury. He is, however, best known as one of New Hampshire's leading legal authorities on DWI.

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