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Admission of Evidence of DUI in New Hampshire

Although evidence of the results of an alcohol concentration test may weigh heavily on the guilt or innocence of a person charged under one of New Hampshire’s impaired driving/operating statutes, evidence of tests or gained from testing is not the only evidence of impaired driving allowed to be presented by the prosecution.  Under RSA § 265-A:9,  when an individual is charged under RSA § 265-A:2, I(a), or RSA § 265-A:3, I, other competent evidence bearing on the issue of whether an individual was under the influence of intoxicating liquor or other controlled drug may be introduced.  In application, this essentially means that regardless of whether results of an alcohol concentration test are admissible, the prosecution can still offer other evidence of impairment due to alcohol or other controlled drugs.  Because of this, it is still possible for a driver to be convicted of driving or operating a motor vehicle or OHRV under the influence without having a BAC of 0.08% or more.  In situations where the driver has a BAC or 0.08% or more, he or she is intoxicated by law and other evidence of intoxication is not needed to prove guilt.

RSA § 265-A:10 allows the introduction of evidence of a person’s refusal to submit to an alcohol concentration test under the implied consent law.  The evidence is admissible in both civil and criminal actions and proceedings out of an act alleged to have been committed by that person in any of three situations: (1) while the person was driving, operating, attempting to operate, or in actual physical control of an OHRV, or; (2) while the person was driving, attempting to drive, or in actual physical control of a vehicle, or; (3) while the person was operating, attempting to operate, or in actual physical control of a boat.  As long as these requirements are met, evidence of a refusal may be admitted.

At an administrative hearing or court proceeding for an impaired driving offense, the prosecution will need to present evidence of impairment in order to convict the defendant.  In many situations, the best evidence of impairment is the testimony of officers who were present at the scene of the incident and administered physical or breathe examination or the record of results of alcohol concentration tests, including blood, urine, and breathe.  The New Hampshire legislature has codified rules of evidence pertaining to impaired driving at RSA § 265-A:9 – 12.

RSA § 265-A:11 is the main statute in regards to evidence of physical and alcohol concentration testing.  In a trial for an alleged violation of § 265-A:2 (DUI statute), the court may admit evidence of physical testing of the defendant under the implied consent law for being under the influence of intoxicating liquor or controlled drugs.  The court may also admit evidence of the controlled drug content of a defendant’s blood, or of the alcohol concentration as shown by the results of a blood, urine or breath test given to a defendant pursuant to the implied consent law.  When the evidence shows that a driver’s alcohol concentration was 0.03% or less, this is prima facie (clear or unambiguous) evidence that a driver was not under the influence of intoxicating liquor.  If the evidence shows that a driver’s alcohol concentration was 0.08% or more, this is considered prima facie evidence that the driver was under the influence of intoxicating liquor at the time of the test.  In the event that a driver’s alcohol concentration was more than 0.03% and less than 0.08%, it is relevant evidence that the driver may have been under the influence of intoxicating liquor at the time of the test.  When this is the case, evidence of the test results will be considered with other competent and relevant evidence in determining the guilt or innocence of the driver.

Under paragraph II of § 265-A:11, evidence gained from alcohol concentration tests have the same effect relative to the operation of boats.  This paragraph does not allow for the introduction of evidence of any physical testing with regards to boating under the influence.  However, it does allow for evidence gained through chemical, infrared molecular absorption, or gas chromatograph test or tests.  Although a discussion of these tests is beyond the scope of this article, an attorney experienced in dealing with New Hampshire impaired driving cases will be able to explain these tests to anyone who is facing charges under the New Hampshire driving and boating under the influence statutes.

When evidence of an alcohol concentration test shows that the driver had an BAC of 0.08% or more and there is additional evidence of aggravating factors as required by § 265-A:3(II), the conduct of the defendant will constitute a separate offense under § 265-A:3(II).  It will also constitute a separate offense pursuant to § 265-A(III) if the test results reveal that the defendant’s BAC was at or above 0.16% at the time of the test.  This part of the statute only applies to paragraph I of § 265-A:11, or, in other words, the paragraph that applies to driving rather than boating under the influence.


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