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New Hampshire Implied Consent Law

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New Hampshire Implied Consent Law

Implied Consent Laws

Overview

What is the implied consent law? It is a law that states all drivers who drive on the roads of New Hampshire agree to give a chemical test (breath test, blood test, urine test, or physical test), upon the request of an officer if arrested for DWI.

 

Are the Tests Optional?

This depends on what you are arrested for. If you are arrested for DWI alleging serious bodily injury as a result of an accident, the test is mandatory. This means the officer can force you to give a test. This typically happens at a hospital, and the test is usually of blood. It is often referred to as a “forced draw”.

If you have been arrested for DWI that does not involve serious bodily injury, the legislature has given you the right to refuse to give the chemical test. However, there are consequences for this refusal.

 

 

 

 

Penalties for a Refusal

Typically, for a first time refusal you will lose your license for six months[1]. For a subsequent refusal, the loss of license will be for two years. Further, this license loss will run in addition to any license loss if you are found guilty of the underlying DWI[2].

If you refuse a test, the refusal to take the test can be used at your trial as evidence of guilt[3]. However, not all refusals are given the same weight. Refusals involving admissions of guilt are given more emphasis. For example, a refusal where the driver stated “I know I’m over, and you know I’m over[4]”, or “I’m too drunk, I won’t pass the test[5]”. Better refusals, tend to be where you tell the officer you know the test is not accurate, a lawyer told you to refuse, you know you have a right to refuse, or you do not want to get stuck with a needle (if offered a blood test).

 

Penalties for Testing Over the Legal Limit

If you test above the legal limit you will lose your license for six months for a first offense. It is a two year loss of license if there is a previous refusal, test over the legal limit, or a previous DWI conviction[6]. This license loss can run concurrently (at the same time) as a license loss in the criminal case.

 

Right to an Independent Test

Under the implied consent law, you have the right to have an independent test done, at your own expense. If you asked for an independent test, and the officer did not help accommodate that request, you may have certain defenses in your case. It often makes sense to ask the officer to transport you to the Hospital for a blood test. However, you can also go to the Hospital for a blood test after you are released from jail. If too much time has gone by, however, the test might not be admissible.

 

The Officer has the Right to pick which Test he wants you to Submit to

Under the implied consent law, the officer gets to pick which test to have you give. Sometimes, they will ask for multiple tests. This is most common where a driver first gets a breath test, then, is asked for a blood test. This usually occurs when the officer thinks someone is impaired by drugs after a breath test comes back low.

 

 

No Right to a Lawyer at the Time of Giving the Test

The right to counsel does not apply at the time you must choose whether to give a test, or to refuse[7]. However, some police officers will accommodate this right, although they have no legal duty to do so. Further, an officer should not be giving legal advice, and if the advice is wrong, you may have remedies. It cannot hurt to ask for a lawyer, so you should always do so.



[1] N.H. RSA 265-A:30(II). Note, however, that if it is a second refusal, and the first refusal was for a test above the legal limit, but did not result in a DWI conviction, the refusal is only for 6 months. See N.H. RSA 265-A(1)

[2] N.H. RSA 265-A:32

[3] N.H. RSA 265-A:10; State v. Cormier, 127 NH 253 (1985)

[4] State v. Parmenter, 149 N.H. 40, 43 (2002)

[5] South Dakota v. Neville, 459 U.S. 553, 555 (1983)

[6] N.H. RSA 265-A:30(II)(b)

[7] State v. Greene, 128 NH 317, 319 (1986)

 

265-A:4 Implied Consent of Driver or Operator to Submit to Testing to Determine Alcohol Concentration. – Any person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state, or operates or attempts to operate a boat upon the public waters of the 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, prescription drugs, over-the-counter drugs, or any other chemical substances, natural or synthetic, which impair a person's ability to drive 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, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a person's ability to drive 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, or operating, attempting to operate, or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs, prescription drugs, over-the-counter drugs, or any other chemical substances, natural or synthetic, which impair a person's ability to drive or while having an alcohol concentration in excess of the statutory limits contained in RSA 265-A:2 or RSA 265-A:3. The test or tests shall be administered at the direction of a law enforcement officer, peace officer, or authorized agent having reasonable grounds to believe the person to have been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving or in actual physical control of a vehicle, or operating or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs, prescription drugs, over-the-counter drugs, or any other chemical substances, natural or synthetic, which impair a person's ability to drive or while having an alcohol concentration of 0.08 or more, or in the case of a person under the age of 21, 0.02 or more. A copy of the report of any such test shall be furnished by the law enforcement agency to the person tested within 48 hours of receipt of the report by the agency by certified mail directed to the address shown on such person's license or other identification furnished by the person. Results of a test of the breath shall be furnished immediately in writing to the person tested by the certified breath testing operator conducting the test. When the incident involves an accident resulting in death or serious bodily injury to any person as provided in RSA 265-A:16, the prerequisites of RSA 265-A:8 shall not apply. Properly trained personnel of the United States Coast Guard may arrest and conduct tests on persons who are believed to be under the influence of intoxicating liquor or controlled drugs, prescription drugs, over-the-counter drugs, or any other chemical substances, natural or synthetic, which impair a person's ability to drive or a combination thereof, and who are in physical control of a boat operating upon the public coastal waters of this state.

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