Refusing to submit to alcohol concentration testing is not without its own set of consequences.
Not only will your license be suspended, but some states are beginning to make penalties even more severe by adding fines, suspending your vehicle registration and adding jail time.
In California, you can be sentenced to time in jail if you refuse chemical testing (an implied consent violation) and have been convicted of a DWI before.
Nebraska and Alaska are now jailing people who refuse to take the chemical alcohol concentration tests for the first time, even if they have never had a DWI charge before.
Right to a DWI Defense Attorney
In New Hampshire, you do not have the right to consult with an attorney before deciding whether or not to submit to alcohol concentration testing.
As mentioned in previous chapters, you should always politely decline to participate in field sobriety tests, and you should most certainly make the request to see or consult with your attorney, so that if they deny you that consultation, your attorney can argue that you were being reasonable when refusing testing, since you were unable to consult with your attorney.
Preliminary Breath Test and your Implied Rights
While you must be arrested and informed of your implied consent rights before being required to undergo alcohol concentration testing, a preliminary breath test can be performed by the officer who has reasonable suspicion that you were driving while intoxicated – without arresting you and without being required to inform you of your implied consent rights, (although some advisements do apply).
The results of the preliminary breath test can be admitted as evidence only to show that the officer had probable cause to arrest you, but you will not face penalties for refusing to take the test.
In addition, the officer must advise you that taking or not taking the test has no bearing on additional testing.
Right to Independent Testing for your DWI defense
You have the right to obtain your own independent alcohol concentration testing.
The arresting officer must inform you of that right, and when a breath, urine or blood sample is taken, it must be taken in sufficient quantities to allow you to obtain the independent sample (at your own cost).
Blood samples must be retained by the lab for a period of 30 days and you must request the sample from the lab in order to have it tested.
If you do not make your request within 30 days, the sample will be destroyed.
Breath samples must also be preserved and must be preserved in accordance with New Hampshire's administrative rules governing breath samples, which have very specific instructions about how to collect and store the sample:
“The certified operator shall identify each captured sample of breath collected in accordance with Saf-C 6302.02 by the following:
(1) The lot number of the tube;
(2) The name of the individual tested;
(3) The date of collection; and
(4) The number in the sequence of samples collected.”
“The captured samples of breath shall be placed in a captured sample bag along with a copy of the subject's test record.”
“The certified operator shall record on the outside of the captured sample bag:
(1) The subject's name; and
(2) The date the captured samples were collected. ”
Observation Period in New Hampshire
Prior to being given a breath alcohol test, New Hampshire requires a 20-minute period of observation during which time the officer must make sure that you do not vomit, burp, or put anything in your mouth, as this could affect the test results.
If you do burp, vomit, or regurgitate, or if any “external material” is placed in your mouth, the 20-minute observation period has to start over.
Once the officer is able to test you, he must take two tests, which must agree within +/- 0.02g/210L.
If they are not within +/- 0.02g/210L of each other, a third sample must be tested.
The officer can stop the testing at any time if he or she feels you are not cooperating (i.e. burping on purpose) and you also have the right to refuse the test any time during the observation period (although your refusal may result in a license suspension unless this is a preliminary breath test).
Your legal right to have your DWI Lawyer provide an Interpreter
If you are legally deaf, you have additional protection under the law of New Hampshire. In any criminal matter where the penalty could include jail time or a fine of more than $100 (which certainly includes DWI charges), the officer may not interrogate or question you without an interpreter being present.
If you are using an interpreter to communicate with your attorney, the state must treat the interpreter as having privileged information and the interpreter cannot be questioned to obtain information that you do not willingly provide.
If the officer does not make the accommodation and you are legally deaf, your attorney will be able to fight to make any evidence or testimony inadmissible.