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Implied Consent Law in New Hampshire

Implied consent laws essentially give the state the power to test for impairment due to alcohol and drugs.   In consideration of drivers/operators giving their consent to be tested, the state in turn allows them the privilege of obtaining a driver’s license.  New Hampshire’s implied consent law can be found in RSA § 265-A:4.  For prerequisites to alcohol concentration and post-arrest physical tests, please see the RSA § 265-A:8.

This law allows anyone who drives or operates, or attempts to drive or operate, a motor vehicle or OHRV upon any way in the state or any boat on any New Hampshire public waterway to be tested for impairment caused by alcohol or controlled drug use.  The types of tests that are impliedly consented to include: physical tests/examinations, or; chemical, infrared molecular absorption, or gas chromatograph test, or; blood, urine, breath or any combination of the three.   The statute allows testing to be administered at the direction of a law enforcement officer, peace officer, or authorized agent.  When a person operates a boat on the coastal waters of New Hampshire, tests may also be conducted by properly trained United States Coast Guard personnel.  Tests are allowed when there are reasonable grounds to believe an individual has driven, operated, or was in actual physical control of a boat, OHRV, or vehicle under the influence of alcohol or controlled drugs or believed to have a BAC of 0.08% or more.  If an individual is under 21 years of age, they may be tested if believed to be under the influence or to have a BAC of 0.02% or more.

The purposes of blood, urine, and breath tests are, by law, to determine the controlled drug content and/or blood alcohol concentration of any person if arrested for driving, operating , or in actual physical control of a vehicle, OHRV, or boat.  The test must arise from facts that are alleged to have occurred during driving, operation or actual physical control or when a person is believed to be over the legal alcohol limit.

When a breath test is administered, the results will immediately be furnished, in writing, by the person who administered the test.  When testing requires a sample to be sent to a laboratory, the law enforcement agency is required to send a copy of the report (results), by certified mail, to the person tested at the address listed on their driver’s license or other identification used by the driver within 48 hours of receiving the results.

The New Hampshire implied consent law is subject to other laws governing impaired driving.  There are some prerequisites that are required before a driver can be tested, even under implied consent laws.  However, when an incident involves an accident which results in serious injury or death or any person, these prerequisites will not apply.  Tests must be given or administered under the standards codified in RSA § 265-A.

Incapacity to Give Consent

In certain situations or under certain circumstances, individuals will be found in a physical or mental state that does not allow them to give consent to submit to alcohol concentration testing.  When a person is dead, unconscious, or otherwise in a condition that leaves the person incapable of withdrawing consent to testing, RSA § 265-A:13 states that the person shall be deemed NOT to have withdrawn consent, and the test or tests may be administered.  Also, if this situation arises, the pre-requisites to testing outlined in § 265-A:8 do not apply.  The results of the tests will be admissible as evidence despite the failure to comply with the pre-requisites to testing.

Refusal of Consent

Section 265-A:14 deals with the refusal of an individual to consent to physical, blood, urine, and breath tests, even under implied consent laws.  Under RSA § 265-A:14(I), drivers have the right to refuse to submit to testing but subject themselves to certain punishments for doing so.

RSA § 265-A:14(I)(a) provides the penalty for first refusal, or, in other words, individuals who have no prior convictions for driving under the influence.  For a first refusal, drivers with a valid New Hampshire driver’s license will have their license suspended for a period of 180 days.  If the driver is a nonresident, they shall have their driving privileges revoked in the state of New Hampshire for a period of 180 days.  For those residents of NH that do not have a valid driver’s license, they will be denied the privileges to drive in the state and the issuance of a driver’s license for a period of 180 days.  Paragraph (I)(b) of this statute applies to drivers who refuse consent to physical, blood, breath, or urine testing and have a previous conviction for driving under the influence or has a prior refusal on his or her record.  Under this sub-section residents of NH with a valid driver’s license will have their license suspended for a period of 2 years, and non-residents will have their driving privileges in the state of NH suspended for 2 years.   If the person is a resident of New Hampshire without a valid driver’s license or permit, he or she shall be denied driving privileges and the issuance of a license for a period of two years.

RSA § 265-A:14(II) provides that if a penalty is imposed under RSA § 265-A:14, the period of suspension shall not run concurrently under Title XXI (the Title dealing with motor vehicles), meaning that this period of suspension or denial of driving privileges or issuance of license will be added onto any such penalty currently being imposed.  For example, imagine a New Hampshire resident with a valid license refuses consent for the first time and is given a license suspension of 180 days.  Eighty (80) days later, he is again stopped and again refuses to submit to testing.  For this violation his licensed is suspended for 2 years.  This suspension will not begin until the first suspension has run its course.  From the date of the second violation, the suspension will run for 2 years and 100 days.

The statute also provides (§ 265-A:14(III)) that in a post-arrest situation, a refusal to physical testing and blood, urine, and breath testing shall be considered as a single refusal to submit to testing.  This section of the statute is in place to protect those who refuse to submit to testing.  Without this, it would be possible for a driver to be penalized for multiple violations of RSA § 265-A:14.

Paragraph IV of § 265-A:14 states that the provisions of § 265-A:14 relative to refusal of consent shall apply to those under arrest for violation or misdemeanor involving the operation of a boat, but only if the following five conditions apply to the situation:

-          The authorized agent or peace officer had reasonable grounds to believe the person arrested was under the influence of controlled drugs or alcohol and was operating, attempting to operate, or in actual physical control of a boat on the public waters of New Hampshire

-          The person has been arrested

-          The person refused to consent to a test by an authorized agent or peace officer

-          The person arrested has been informed that refusal to submit to the test will result in loss of privilege to operate a boat AND a motor vehicle in the state

-          The officer informed the person of their right to have the test or similar tests conducted by a person of his or her choosing

Paragraph V of RSA § 265-A:14 is the final paragraph of the section, and set to change July 1, 2011.  For violations after this date, if a person’s license or privilege to drive is suspended under paragraph I or IV of this section, the person’s privilege to operate a boat on the waters of the state shall also be suspended for the same period of time.  This, in practice, means that those who refuse to consent to testing after an incident involving either boating or driving, they will have their boating AND motor vehicle privileges suspended.

One important issue that has been decided by the New Hampshire Courts is determining when a refusal has actually taken place.  This will depend on the circumstances surrounding the particular incident, but generally a refusal does not have to be oral, so long as the individual has manifested intent not to be tested.   The Supreme Court of New Hampshire has held that it is possible that a person may consent to testing orally and then frustrate or interfere with the administration of the test to the extent that they have essentially refused.   Since this leaves broad discretion to officers to determine consent, drivers are protected by being allowed a hearing to determine both the lawfulness of their stop and whether they actually intended to refuse consent.  For anyone facing a license suspension due to a refusal of consent, it is important to know the law and speak with an attorney to make sure their rights are fully protected.

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