What is Implied Consent?
When a person is accused of DWI in New Hampshire, there are several ways that their licenses can be affected. One of the ways that a person can get their driver's license suspended is by violating implied consent. According to New Hampshire State Law Section 265-A:4, “[a]ny person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state” must submit to sobriety testing when requested by law enforcement. This is called implied consent because by performing any of these actions, a person is giving their implied consent to take a sobriety test.
Tests Covered Under Implied Consent
There are two types of tests that are covered under New Hampshire implied consent laws. The results of both can be used against the suspect as evidence to their drug or alcohol intoxication. If either test is refused, it will be considered a violation of implied consent. They are as follows:
- Chemical Tests: A person who operates or attempts to operate a vehicle on New Hampshire roads gives their implied consent to take a chemical blood, breath or urine test when law enforcement asks them to do so. A law enforcement officer must have a reasonable excuse for suspecting that the driver is intoxicated by alcohol or some type of drug when requesting they take such a test. Chemical sobriety tests examine blood, breath or urine samples of DWI suspects in order to determine if they were under the influence of drugs or alcohol. A driver with a blood alcohol concentration (BAC) of 0.08 or more is considered impaired under NH law.
- Field Sobriety Tests: A person who operates or attempts to operate a vehicle in on a road in New Hampshire also gives their implied consent to undergo physical tests and examinations in order to determine impairment. Like chemical tests, the officer must have a reason to suspect the driver is under the influence of drugs or alcohol. Under NH law 265-A:6, the results of a field sobriety test are only court admissible if the officer who performed the test has been properly trained to do so. Field sobriety tests are physical tests that police will ask a DWI suspect to perform in order to determine whether or not they are impaired. Under the law, police can ask a suspect to perform any type of field sobriety test. There are three specific tests that are standardized by the National Highway Traffic and Safety Administration (NHSTA). They are referred to as Standardized Field Sobriety Tests (SFST) and are as follows:
- Walk and Turn: The suspect must walk in a straight line touching heel to toe and then turn and walk back.
- One Leg Stand: The suspect is asked to stand on one leg without using their arms to balance themselves and turn in one direction and then the other.
- The Horizontal Gaze Nystagmus Test: This test is the most scientific and only evaluates for alcohol intoxication. It involves the officer waving an object across the suspect's field of vision and looking for an involuntary twitch of the eyes.
Implied Consent Violation NH Penalties
Some people believe that refusing a sobriety test is a good idea because it does not give law enforcement any evidence to prove that they were intoxicated. Others believe that refusing these to take a test is evidence that you were intoxicated because there would be no other reason to refuse. There is no right answer in this situation. On one hand, less evidence is always a good thing in a criminal case, but a refusal can still be used against a DWI suspect. Ultimately, it will be up to a jury to decide whether the refusal was evidence of impairment or not. If a DWI suspect does refuse to take a chemical test, a field sobriety test or both, they will be in violation of implied consent.
The penalties for implied consent violation are as follows:
- First refusal with no prior DWI convictions: 180 days of driver's license suspension
- First refusal with prior DWI convictions: 2 years of driver's license suspension
This period of suspension cannot run concurrently with any other license suspension penalty meaning that it will have to be served after any other court ordered license suspension period is imposed.
Fighting NH Implied Consent Violation
The only way to avoid the license suspension associated with refusing a sobriety test is for the suspect to argue that they were never informed of the implied consent law when they refused. Under section 265-A:8, an officer must inform a DWI suspect of the following after they refuse a chemical blood, breath or urine test:
- That they have the right to take a similar test of their choosing (i.e. they do not have to take a breath test if they agree to take a blood test instead) and ask them if they would like to do so
- What the consequences of refusing the test will be If the suspect refuses to take a field sobriety test, they must be informed of the consequences of violating implied consent.
If the officer fails to explain this to the suspect and a test is refused, their refusal cannot be used as evidence against them in court. They will also not have to face the penalties of violating implied consent. A suspect, who at the time of arrest was unconscious or otherwise unable to refuse their consent, will be deemed as consenting.
Get an Experienced New Hampshire DWI Lawyer
If you have been arrested for DWI in New Hampshire and want to know more about implied consent laws, call our office right away. Only an experienced attorney can help you build the best defense and make sure that you get your license back as soon as possible.
Attorney Russman is one of New Hampshire's leading legal authorities on DWI law. Let him walk you through the DWI process and help you every step of the way. Call us now to get started.