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Frequently Asked Questions about DUI in New Hampshire

Can I be stopped and arrested for DUI even if the vehicle was not moving?

Yes.  New Hampshire defines drive to mean “to operate or be in actual physical control of a motor vehicle, OHRV, or snowmobile.”    For those not familiar with the Doctrine of Actual Physical Control, being arrested for a DWI while the vehicle is not moving, or not even running, may seem unlikely or even unlawful.  However, the New Hampshire courts have allowed convictions for DWI’s when a driver is in actual physical control of the vehicle, which has been articulated as meaning  “To have ‘actual physical control’ of a motor vehicle, one must have the capacity bodily to guide or exercise dominion over the vehicle at the present time.”  This essentially means that as long as the officer can reasonably believe that the driver has the ability to operate a motor vehicle, he or she can be asked to submit to testing for BAC and possibly be arrested for DWI.  Although it is unclear where New Hampshire draws the line with actual physical control, it would be a bad idea for anyone who may be intoxicated to so much as sit in his or her car, especially if he or she has in their possession the keys to the car.

The driver may also be arrested if he or she is involved in an accident and the investigating officer believes that the accident involved a DWI offense or an offense for which DWI is an element.  In this case, the vehicle would not be moving, and the driver may not even be located at the scene.  The officer has the authority to arrest a driver not at the scene, including at a medical facility.

Do I have the right to talk to an attorney before I give a sample?

Though New Hampshire law does not expressly give individual’s the right to speak with an attorney before submitting a sample, it does provide that the individual has the right to have additional tests administered by a person of his choosing and that any sample taken shall be of an amount to allow for two tests.  Enough of the sample to allow for another test must be retained for at least 30 days and must be released to the defendant or his attorney at their request.  This gives individuals the opportunity to have secondary tests administered.  Sometimes these tests will yield different results than the test performed previously at the officer’s discretion, and could allow a defendant to argue that the results of the tests were inconclusive.

Some may argue that the 4th or 5th Amendment gives an individual the right to speak with attorney before giving a sample.  However, the 4th Amendment will only applies to search and seizures of the person.  Though it has been argued that the taking of a sample would attach the right to counsel under the 4th Amendment, because it is an unwarranted search and seizure, both the Federal and State courts have determined that unless the samples are taken in an inappropriate manner or are overly intrusive, the 4th Amendment does not attach.   When a court determines that the search and seizure was overly intrusive or improper, evidence will be inadmissible at trial and thus the individual’s rights will be properly protected.  The 5th Amendment protects only against incriminating statements.  Because the results of an alcohol concentration test are not considered to be a “statement” for the purposes of the 5th Amendment, the right to counsel under the 5th Amendment does not attach before or during the taking of a sample.

Do I have to give a blood or urine sample?  Field sobriety test?  Breath test?

Under New Hampshire’s Implied Consent Law, a driver does have the right to refuse to give a blood or urine sample when requested by an officer.  However, refusing to submit to the sample can lead to serious consequences.  Just as the results of the test, if properly administered, will be admissible in an action arising out of an arrest, refusal to submit to testing is also admissible as evidence against the driver.  This is also true for field sobriety tests.  When making the decision as to whether or not to submit to these tests, the driver should be aware of the consequences of a refusal and realize that refusing the test will not protect the driver from being charged and possibly convicted of a DWI offense.  It is also important to realize that penalties for a refusal will be in addition to the penalties for a conviction of a charge that arises out of the same incident.

New Hampshire law also allows officers to ask a driver to submit to a preliminary breath test, which is administered before a driver is arrested when an officer has reasonable grounds to believe the driver was operating a motor vehicle under the influence.  The device used for this test is a handheld “PBT device” commonly known as a breathalyzer.  While the results are admissible in court, the driver may refuse the test without any consequences and evidence of the refusal cannot be used against the driver in court.  It is important to understand that this is only true for a preliminary breath test.  Once a driver has been arrested, refusing a breath test is the same as refusing any of the tests discussed above.


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