Interviewer: What happens if they do take your license? Do you still have 30 days to drive until it is suspended?
David: Yes, one is entitled in that scenario to an administrative license suspension hearing. Basically, it is something created by statute where the client has to ask for the hearing otherwise they do not get it. If they request a hearing, then it is conducted by Department of Safety hearing officers. Also, at the hearing the police officer is required to appear and testify.
The police officer has to demonstrate to the hearings officer that he had reasonable grounds to believe the client was under the influence. He has to show the driver actually was arrested for DWI; that he was properly advised of his so called ALS rights; that he either refused or that a properly conducted blood test resulted in an illegal number.
If he demonstrates those facts to a hearing examiner, then the six month or two year suspension remains in effect. If the police officer does not show up or fails to meet those pretty basic requirements, then the hearings examiner can vacate the suspension and return the client’s license.
Interviewer: What are ALS rights?
David: ALS is Administrative License Suspension, the rights the person has basically and the warning if you will. You have been arrested for an offense arriving at acts alleged to have been committed while you were driving under the influence of alcohol or drugs. That is the first one.
You are being asked to submit to a test or tests at the discretion of a law enforcement officer in order to determine the alcohol or drug concentration in your system. You may be asked to perform a breath test, blood test, urine test, physical test or any combination of.
Third, you have a right to a similar test of your blood, urine or breath taken by a person of your own choosing and at your own expense. Upon your request, you will be given the opportunity for such additional tests.
You also have a right to have a portion of the sample of your breath, blood or urine made available to you for testing at your own expense. The New Hampshire Intoxilyzer machine might very well be unique in America in the sense that when the person blows into the test, the lung air of the machine test comes out of the back end and goes into a tube.
You get the tube in hand as you leave. You do the test twice, so you get two tubes. You could have the second sample tubes tested to try to validate or dispute the number that the government says came up on the Breathalyzer. They tried to change the law a couple of years ago but it did not happen; thank goodness.
There is a warning that if your blood, urine or breath shows alcohol concentration of .08 or more or if you are under age 21 and .02 or more, your license to drive in New Hampshire would be suspended.
If you refuse the test, the refusal is admissible in court. If you refuse to submit to a test requested by the officer, your driving license or operating privileges will be suspended. Those basically are the so called rights that the client has that are read to them.