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Administrative License Suspension Hearings | DUI

NH DUI GUYServing all of N.H. Offices Nashua, Manchester, Concord, Portsmouth Call 24/7:  (603) 821-0319

Administrative License Suspension Hearings

Administrative License Suspension Hearings

Overview

If you test over the legal limit (.08 for most drivers, .02 for drivers under 21), or refuse a breath test, you are subject to a license suspension. However, you are entitled to a hearing.

 

Timeframe to Request a Hearing

A hearing must be requested within 30 days of the refusal, or 30 days from the date the results of a test over is received[1].

 

Scope of the hearing

In the request for the hearing, you must specify what you want to be determined at the hearing. It is best to request the entire scope of the statute be heard.

If you hire a lawyer, have the lawyer request the hearing.

Some people put in too much information, and some people do not properly request a hearing; which often leads to them being denied a hearing.

The scope of the administrative review or hearing shall be limited to the issues of:
     “(a) Whether the officer had reasonable grounds to believe the arrested person had been driving, attempting to drive, or was in actual physical control of a vehicle upon the ways of this state or operating or attempting to operate a boat on the waters of this state or was driving, operating, attempting to operate, or in actual physical control of an OHRV while under the influence of intoxicating liquor, narcotics, or drugs;
       (b) The facts upon which the reasonable grounds to believe such are based;
       (c) Whether the person had been arrested;
       (d) Whether the person has refused to submit to the test upon the request of the law enforcement officer or whether a properly administered test or tests disclosed an alcohol concentration of 0.08 or more, or, in the case of a person under 21 years of age, 0.02 or more;
       (e) Whether the officer informed the arrested person of his or her right to have a similar test or tests conducted by a person of his or her own choosing; and
       (f) Whether the officer informed the arrested person of the fact that refusal to permit the test would result in suspension of his or her license or driving privilege and that testing above the alcohol concentration level specified in RSA 265-A:2 or RSA 265-A:3 would also result in suspension”. [2]

You must request the presence of the arresting officer, if you want him present (which you always should), and send a copy of the hearing notice to him[3].

 

The ALS Hearing

The hearing will be held at the Department of Safety, or one of the satellite DMV offices. It is open to the public, and will be audio recorded. Anyone who testifies will be under oath. The burden of proof at the hearing is on the State/ Police officer, and is a preponderance of the evidence, meaning more likely than not. While it is a much lower standard than the criminal trial, it is still the State’s burden.

 

Did you Actually Refuse to Take the Requested Test?

One of the issues you can contest is whether you actually refused a chemical test. While most refusals are explicit, there can also be an implied refusal, or constructive refusal. This is usually the case where a driver may not respond, or attempts to give a breath sample but was unable to.

 

Issues Related to a Breath Test

To prove a valid breath test above the legal limit, the state must provide:

a. Testimony from the law enforcement officer that he/she is certified to operate the breath test instrument, or a copy of his/her certification card;

b. A copy of the preventive maintenance check form filled out by the forensic breath testing supervisor who performed the last preventive maintenance check on the breath test instrument in question prior to the time of the test at issue; and

c. A copy of the breath test instrument printout which shows that the instrument operated properly and captured the required samples after the waiting period[4].

 

 

Issues Related to Blood

In a blood test case, the State must produce evidence of the following:  

a.  A  copy of the blood specimen collection form filled out and signed by the person who took the sample for the test in question, pursuant to Saf-C 6402.02; and

 b.  A copy of the transmittal slip for the person’s blood specimen; and

 c.  A copy of the certifying scientist’s report of the test result.[5]

Again, you must request the presence of the certifying scientist, or else their presence is waived[6].

 

What Type of Cleanser was Used?

The area must be cleansed with a cleanser that contains no ingredients which can interfere with the analysis. Typically, povidone-iodine is used. Things that should not be used, obviously include alcohol, or things that may contain alcohol, such as soap.

 

What was the Actual BAC Result of the Test?

Unlike breath test results, which are always chopped/ rounded down[7], blood test results are rounded to the nearest second decimal place according to Saf-C 6402.12[8]. Accordingly, if your blood was .076 and .077, the reported value will be .08[9]. Even .075 gets rounded up to .08.

It is imperative that you or your lawyer obtain the complete files from the Crime Lab in order to determine what the actual reported value is. You also want to know if the machine was calibrated or had any issues.



[1] N.H. RSA 265-A:31(I)(a)

[2] N.H. RSA 265-A:31(II)

[3] N.H. RSA 265-A:31(I)(c)

[4] Saf-C 2804.07(b)(1)

[5] Saf-C 2804.07 (b)(2)

[6] Saf-C 2804.01(g)

[7] Saf-C 6302.03(a)

[8] Saf-C 6402.11

[9] However, see Carignan v. Beecher, 02-E-229, (Strafford, Mohl, 4/22/03), holding that rounding up was permissible.

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