Interviewer: You said earlier that a lot of people are refusing to be tested. Does that mean they are refusing field sobriety tests or are they refusing the Breathalyzer at the police station? What are the consequences of refusing either?
David: With respect to refusing the breath test and the field sobriety test out on the road, generally speaking, field sobriety tests are requested prior to the arrest. If one refuses, well great, the refusal can be used against them. But in terms of providing the government evidence as to how badly you are doing in the field test, that does not happen when a person refuses to take the field sobriety test.
When I speak in terms of refusal, I am talking about once they are under arrest, in custody at the police station. Before the government can do a breath test or a blood test, they have to advise the client of their so-called administrative license suspension rights.
Basically, they have a right to a second sample; they can have an independent test after the fact. If they refuse, their license will be suspended. If they take the test and register an illegal level, their license will be suspended. That advice is given to the client prior to the test.
If a person charged with first offense DWI refuses to take the breath test, then New Hampshire DMV will suspend the license for six months. If the person has a prior DWI conviction within 10 years or a prior refusal within 10 years and then gets arrested for DWI, then the loss of license for the refusal is two years long.
Interviewer: Is that lengthy driver’s license suspension in addition to the regular loss of license for nine months or is it just concurrent with it?
David: No, it is in addition to it. It is consecutive.
The statute makes it a serious consequence for refusal. If you refuse and then get convicted, you are looking at six months for the refusal and a minimum of three months if you jumped. If you do the programming quick enough to get the three month loss of license, it is nine months total.
Whereas if you had taken the test and failed, there would be a six month suspension that would be concurrent, simultaneous, with whatever the court does.
Interviewer: Why do people refuse breath tests so often?
David: People know if they have been drinking, they are giving the government, the police and the prosecutor evidence against them if they were to take the test. If the individuals are drunk a lot, they would expose themselves to a mandatory jail sentence if they register an illegal aggravated DWI which is .16 or higher.
I think people are aware that if they have had too much, that it is probably best not to take the test because you do not want to prove to the government that you are guilty.
Interviewer: If you refuse, can the police just get a warrant to take your blood?
David: If they have probable cause and if they want it that bad, yes, theoretically. But I can’t remember the last time something like that happened.
Interviewer: Is that very different than other states?
David: Yes, I am aware of that. I have been watching some of the other states where the police can just take the blood. That brings to mind a case in the United States Supreme Court earlier this year.
Interviewer: Are you thinking of Missouri versus Magnolia?
David: Yes, bingo! Yes, absolutely, where they thank goodness did not give police permission to do that.
No, in New Hampshire, refusals, as I said, get sanctioned by a consecutive, longer loss of license.
Interviewer: At least they tend to leave you alone.
David: Yes. Obviously in serious bodily injury motor vehicle accidents and negligent homicides, they do go through the hoops to get the blood test.
Interviewer: If you refuse the blood test, do the same rules apply or is it different from a breath test?
David: The rules are the same for the breath test and the blood test.
I have a hearing coming up in the very near future where the client is prepared to say that he did not refuse the test. All he did was demand a blood test because he does not trust the breath machine.
Unfortunately, that is a losing argument because the statute says the police may request either test. They can request a blood test or they can request a breath test; or believe it or not, urine test. I have never seen one of those. It is the choice of police as to what test.
So the client saying, “I want a blood test and not a breath test