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35 ways to challenge a NH DWI

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If you have been arrested for driving while intoxicated (DWI) in the state of New Hampshire, then you will naturally be concerned, but you should not despair. By hiring experienced and skilled legal representation who can ensure that your legal rights are protected, there are a plethora of possible defenses that can be used in your case. Here are just a few possible methods of challenging a New Hampshire DWI that an experienced DWI lawyer can use:


1.      Illegal Stop of an Automobile or Person – In New Hampshire, a motorist cannot be pulled over unless a police officer has an articulate and reasonable basis to believe that a crime has been committed. In a similar fashion, an individual cannot be seized unless a legal violation has occurred.


2.      Weaving Within Lanes Is Not Illegal – Weaving within a traffic lane, without crossing actual lines, is not a legal violation of NH law, and an automobile cannot be stopped for that sole reason.


3.      Anonymous Reports of Drunk Driving – In our state, an automobile cannot be legally stopped or pulled over simply because an anonymous individual reported that the motorist was intoxicated.


4.      Field Sobriety Tests Are Notoriously Inaccurate – For average, healthy citizens, the one legged stand test is accurately only approximately 65% of the time. When it comes to determining if a motorist is under the influence of alcohol, the walk and turn test is accurate only 68% of the time. Individuals who suffer from medical conditions, physical injuries, are significantly overweight, or whom are elderly cannot be accurately judged by such tests.


5.      NonStandardized Field Tests Are Invalid – Neither medical science nor the National Highway Traffic Safety Administration classify saying the alphabet, touching one’s finger to their nose, or counting backwards to be valid forms of field sobriety tests.


6.      A Single Breathalyzer Test Can Be Inaccurate – Nearly all experts unanimously agree that a single Breathalyzer test by itself is unreliable, due to a number of inaccuracies, which can include variances as high as +/- 12.5%, non-specific for ethanol, etc.


7.      Police Station Booking Rooms Are Monitored by Video – The majority of New Hampshire police stations record suspects on video. Such videos can demonstrate when a suspect's balance is perfect and their speech clear when being recorded, which can contradict a police officer’s testimony.


8.      Squad Car Videos Can Provide Contradictory Evidence – With increasing frequency, a possible suspect’s performance and driving abilities are being recorded on squad car dash cams, which can also contradict a police officer’s testimony.


9.      Failure to Provide a Quick Trial – If a suspect is not provided with a speedy trail within a specified time frame, through delays caused by the prosecutor or the NH court system, DWI charges can be dismissed.


10.   Blood Tests Administered by Police Officers Can Be Inaccurate – It is a common misconception that blood tests administered by police officers are infallible. Improper preservation techniques, analysis, and testing can all contribute to inaccurate results.


11.   Blood Tests Administered by a Hospital Can be Inaccurate – In uninjured and healthy individuals, hospital administered blood tests can overestimate an individual’s actual BAC content by as much as 25%. For severely injured persons, these blood tests are not statistically reliable.


12.   Untrained Test Administrators – If the police officer administering a blood test has not been accurately trained on how to do so, the results of a motorist’s test may be considered inadmissible in a court of law.


13.   Breathalyzer Machines Can Malfunction – Many states within the U.S. specify that if a repair or malfunction of a Breathalyzer machine has occurred within a specific period of time after a motorist’s test, either before or after, then the results of tests conducted with that particular machine are invalid.


14.   The Use of Unapproved Breathalyzer Test Devices – An instrument used to administer a Breathalyzer test must be on the ISP Approved List of Devices or the Federal List of Approved Breath Evidential Instruments. Otherwise, the results of such a test are classified as inadmissible in a court of law.


15.   Failure to Prove Driving While Intoxicated – A suspect’s own admission to driving while intoxicated by itself, without further evidence, does not meet the legal burden of proof for proving a DWI charge.


16.   Independent Witnesses – In many instances, independent witnesses to an automobile accident, such as hospital personnel, bartenders, and others, can provide critical evidence at trial to a suspect’s sobriety.


17.   Failure to Read One’s Miranda Rights – In most instances, a prosecutor is legally barred from using the statements of a defendant as evidence against them in a court of law if the defendant was not properly read their Miranda rights by the arresting officer.


18.   Improperly Administered Field Sobriety Tests – Per the National Highway and Traffic Safety Administration, a field sobriety test that is improperly administered cannot legally be used as evidence of a motorist’s intoxication.


19.   Prior Disciplinary Records of the Arresting Police Officer – The arresting police officer’s credibility can be called into question by using their prior disciplinary record.


20.   The Results of a Portable Breathalyzer Tests Are Inadmissible in a New Hampshire Court of Law – New Hampshire is one of many states in the Union that prohibits the using of portable Breathalyzer tests as valid evidence in a court of law in a DWI case. The tests must have been conducted with an approved device, such as the Intoxilyzer 5000 or 8000.


These are just a handful of the potential methods that an experienced NH DWI attorney can use to mount a sound defense against a DWI charge; however, it is important to bear in mind that no two cases are alike, and you should consult a DWI lawyer to learn more about how these possible defenses relate directly to your specific case. For a free consultation regarding your case, please contact our law offices today.


1.      Failure to Follow a Proper Observation Period – Many states in the U.S. require that a motorist be observed continually for a minimum amount of time, generally twenty minutes, prior to the administration of a Breathalyzer test in order to ensure that the results are valid and admissible in a court of law.

2.      Health and Medical Issues – Medical or health issues associated with a motorist’s arms, legs, back, eyes, or back can significantly affect the outcome of field sobriety tests. Other similar medical conditions can affect the results of Breathalyzer tests. Proving the existence of these conditions can affect the outcome of a DWI trial.

3.      Poor Weather Conditions – Poor weather reports that establish low visibility, high winds, or other similar conditions can be used to explain the results of poor driving or poor balance results during field sobriety tests.

4.      Lack of Probable Cause – A police officer must possess articulable and specific facts to support any arrest made for a DWI charge. Otherwise, a suspension will be reversed, and any ensuing evidence that was gathered during the arrest will be suppressed at trial.

5.      Illegal Search and Seizures – Law enforcement officials are legally prohibited from searching a motorist or their motor vehicle for minor traffic offenses and cannot search a vehicle without probable cause or without the driver’s permission. Any evidence that is illegally obtained is not considered permissible in a New Hampshire court of law and will be suppressed.

6.      Inconsistent Statements Made by Police Officers – Any prior inconsistent statements made by an arresting office, whether made orally, in a police report, or during prior court hearings, can be utilized to attack an officer’s credibility in open court.

7.      Absorption of Alcohol Post Driving – The prosecutor in a DWI case must be able to prove the breath of blood alcohol at the time the motorist was operating the motor vehicle. Consumption of alcohol immediately prior to operating a vehicle will cause test results to be higher at the time of the test’s administration that what they actually were when the motorist was operating the automobile.

8.      Interfering Substances – There are a number of everyday products that contain a considerable concentration of alcohol that could create false positives on test results and cause the results to be invalid. This list of products includes fingernail polish, asthma sprays, paint, and even cough drops.

9.      Failure to Produce Dispatch Tapes – The majority of stops of automotive vehicles are recorded on police dispatch tapes, including police communications surrounding the arrest of a motorist. Failure to produce these tapes upon request of the defense can have all recorded to be suppressed at the time of trial.

10.   Misleading Statements Made by Law Enforcement Officials – If a police officer makes any misleading statements to a motorist they suspect of being intoxicated about the consequences of taking or refusing to take a urine, blood, or breath test will create reason for the suspension to be reversed and completely removed from the motorist’s driving record.

11.   Statute of Limitations – In the state of New Hampshire, a misdemeanor DWI charge must be filed within an established period of time after the date the offense occurred, or the criminal charges will be dismissed altogether before the case is even taken to trial.

12.   Failure to Disclose Experts – The failure of a prosecuting district attorney to disclose who the state’s expert witnesses are will cause a court judge to bar these witnesses from being able to testify at a defendant’s trial, which can seriously affect the outcome of a motorist’s DWI trial.

13.   Private Property Considerations – When a motorist has not driven their motor vehicle on a public highway or roadway, he or she cannot be arrested for driving while intoxicated, particularly if the alleged incident took place on private property.

14.   Failure to Record Certification Test Results – The failure to provide or record the values of the simulator solution used in a Breathalyzer machine (In the state of New Hampshire, this is the Intoxilyzer 5000.) will cause the test results to become inadmissible in a New Hampshire court of law. Consequently, they cannot be used against the defendant.

15.   Forced Drawing of Blood – In New Hampshire, police officers cannot forcefully draw blood from a motorist if they do not have their express permission when an accident or incident has not involved an injury. To do so would render results that were inadmissible in a court of law.

Again, it is important to bear in mind that each DWI case is different from the next, which is one of the primary reasons why it is so important for you to have an experienced and skilled attorney representing your DWI case. This is where our DWI attorneys can step in to offer their assistance. For a free consultation regarding your case, please contact our law firm today.




Disclaimer: Past results do not guarantee a future outcome. Results include cases in both Massachusetts and New Hampshire. Attorney Dan Hynes is admitted to practice law only in Massachusetts and New Hampshire. This website may be considered advertising. Contacting us does not create an attorney/client relationship and the information on this site is not legal advice and may be inaccurate or not applicable to your case. Each case is different.

Mailing Address: Dan Hynes PO BOX 598 Merrimack, NH 03054