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DWI Breath Test Laws in New Hampshire

Put Decades of Experience in Your Corner

New Hampshire has an Implied Consent Statute (RSA 265-A:4). This means that any person who operates a motor vehicle, OHRV, or boat in New Hampshire is deemed to have given consent to physical tests and/or to chemical tests for the purpose of determining drug or alcohol content. If you are pulled over for DWI in New Hampshire, you may therefore be asked to submit to a breath, blood or urine test. It is the officer’s choice which test to request.

Can I Refuse to Take a DWI Breath Test?

You are not required to take the test and you may refuse. Refusing the test often deprives the State of evidence that it relies upon to establish the crime of drunk driving or impaired driving in court. However, there are penalties for refusing the test.

A refusal triggers the administrative license suspension process, which may result in the imposition of a 180-day license loss for a first offense and a two-year license loss for a subsequent offense.

Separate from this administrative process, you also may be charged with the criminal offense of driving while intoxicated in a New Hampshire court. In New Hampshire, the fact of a refusal may be used against you in court as evidence of impairment, which is much different than in other states, including Massachusetts.

Challenging the Evidence in a DWI Case

Breathalyzer Tests

Increasingly, the State relies on scientific evidence to prove DWI cases. Traditionally, the State seeks to administer a breath test at the police station or state police barrack. The machine used by law enforcement in New Hampshire is known as the “Intoxilyzer 5000,” and it is not infallible. It requires a specific waiting period, instructions to the subject of the test, regular maintenance and calibration, and administration by a certified breath test operator.

Critically, this machine tests alcohol content at the time the test is taken and not at the time that a suspect was actually operating a motor vehicle. During the time in between, alcohol content can change, sometimes dramatically. It is possible for alcohol content to rise in the time that it takes for the police to administer the test.

Preliminary (Roadside) Breath Tests

In addition to the typical test at the station, certain New Hampshire police officers and state troopers seek to administer a test on the roadside, known as a preliminary breath test (PBT). There are several different PBT devices in use in New Hampshire, and the State’s own training materials call into question the reliability of this type of testing.

Preliminary breath testing implicates many constitutional concerns. Importantly, this type of test does not create a second sample for independent analysis by our defense team. This defect results in constitutional and statutory challenges to the admissibility of such evidence, arguments that our attorneys have won in New Hampshire courts.

Blood Tests

More and more, New Hampshire law enforcement officers and state troopers are requesting that our clients submit to blood testing to examine both blood alcohol content in addition to the possible presence of controlled drugs.

In drug-related impairment cases, the State tends to rely on an expert to offer an opinion that the presence of certain drugs at certain levels will result in impairment. In our experience, the State often overreaches in coming to such opinions.

Legal Assistance from a New Hampshire DWI Lawyer

If you are facing arrest for a DWI charge and you have refused a breath test, it is important to get legal assistance from a New Hampshire DWI attorney at our firm. A conviction for DWI has serious consequences, and we can help you avoid the devastating penalties. To reduce these consequences, it is important to hire an attorney who has the knowledge and experience to help you through your case.