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Chemical Testing in New Hampshire

New Hampshire Implied Consent Laws give officers the discretion to ask a person to submit to chemical testing when the person has been arrested for a DWI related offense.  The statutes also outline various requirements for testing.  Before administering a test, the officer must inform the person of the provisions of the implied consent law, the individual’s right to refuse, and the consequences of refusal.  After informing the driver of these provisions, the officer will ask the driver to sign an implied consent form stating that they have been informed of the law.  The testing samples must be taken by a licensed medical professional and the tests must be performed at a licensed forensic laboratory by a person certified to test the samples.  New Hampshire has also required the Commissioner of the Department of Safety to adopt rules pertaining to the methods and procedures for taking samples, delivering samples and results, and certifying those allowed to administer tests.  If for any reason these rules are not complied with, any evidence gathered as a result of the exams will be inadmissible to determine the guilt of an individual charged with a DWI offense.  Challenging the procedures under which a test was given can be an effective way of defending against impaired driving charges.

Although drivers generally have the right to refuse a test under the implied consent law (and be subject to other penalties), they do not have the right to refuse giving a sample for testing in relation to a felony-level DWI charge.  Both the United States and New Hampshire Supreme Court’s have recognized the right of officers to obtain a sample for chemical testing without a warrant if there is probable cause to believe the driver caused the death or serious injury of another while driving under the influence of alcohol or controlled drugs, and are generally allowed to take the sample forcibly.  In most cases, this will involve restraining an individual so that a medical professional may take a blood sample.  This restraint must be with an amount of force that is reasonable, and due process concerns arise when an officer uses physical violence or excessive force to restrain an individual.  If a court finds that the amount of force used was unreasonable, evidence obtained as a result of the test will most likely be inadmissible.

Issues also arise when a defendant has not been arrested but is asked to consent to a chemical test.  New Hampshire does allow for preliminary breath testing before arrest.  However, when an officer only has a suspicion of alcohol involvement in an accident, they are generally prohibited in asking an individual to voluntarily consent to a blood test.  In the event that an individual does consent to a voluntary blood test to measure his BAC level, the officer will be required to show that the individual was coherent and able to understand the consequences of consenting to testing, that the individual actually gave consent, and that the individual was not coerced into giving consent or that consent was not in any way involuntary.


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