Implied Consent and the Alcohol Concentration Test

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

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.

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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