Should I Submit to a Breath Test?

NH Breath or Blood Test – As a DUI attorney, I wish I would get this question more often. The importance of whether a person submits to a breath or blood test after a DUI arrest cannot be overstated. This singular decision will undoubtedly change the composition of the ensuing case, which is why I’m troubled when people act surprised that my stock answer is so complex. They’ve been led to believe that there is an easy path to acquittal where there is not. The sadder truth, though, is that many people will never ask because people insist that they know some magic answer.

The trick is that no “right” answer exists. The best we can do is make sure that everyone is well informed about what’s at stake. Here’s how it all goes down:

Overview of NH DUI Process

In New Hampshire, a DUI arrest triggers two independent proceedings: one administrative (at the DMV) and one judicial (in the local court). It’s important to understand the function of each proceeding and the potential consequences in order to determine what works best in any particular case.

The administrative license suspension (ALS) is the first concern. In nearly every DUI stop, the arresting officer will ask the suspect to take either a breath test or blood test. If the person refuses or fails the test, the DMV will automatically suspend that person’s license 30 days after the arrest. The suspension will last either six months or two years depending on whether there’s a record of a prior refusal/test-over or DUI conviction. The suspension can be challenged, but it will be active on the 31st day regardless of how fast or slow things move in court.

An ALS challenge triggers a hearing at the Department of Safety building in Concord. The hearing will mainly concern two issues: (1) whether the arresting officer had reasonable grounds to believe the arrested person was under the influence of drugs or alcohol; and (2) whether the arrested person either refused the test or submitted to a test that disclosed a blood alcohol concentration above .08. The burden of proof at these hearings is on the State, but unlike the court proceedings the State need only prove its case is more likely to be true than not. In other words, the State merely has to show up and prove that the officer probably had a good reason to ask for the test and that the suspect either refused or tested over the limit. Needless to say, the police win these hearings fairly often. The silver lining for the defendant, however, is that the officer might admit something during that hearing that helps your court case.

(Note that an officer is allowed to ask a person to take a test based upon a suspicion of drug impairment, but the only test that can trigger a license suspension is one that discloses an alcohol level above .08. This means that if there is no alcohol in the person’s system, the ALS will not be triggered no matter how many other drugs are disclosed by the blood test.)

Eventually you will have a trial in the local court. A DUI trial, however, is more forgiving than an ALS hearing because the State is required to prove your guilt beyond a reasonable doubt. This is why many people (including some lawyers) take the position that a refusal is better every time. It’s much harder to prove that you were actually intoxicated than whether your blood alcohol content was over .09%, especially without any scientific evidence. That’s why refusing can make it easier to obtain an acquittal or an agreement to a reduced non-DUI charge, which is arguably more important than the administrative license loss.

So how about the big decision: do I blow or not? The only difference between the consequences for a refusal and a test-over is how they relate to any other suspensions you might get. A test-over will run at the same time, but a refusal will always get tacked on to the end. For example:

  • Persons A, B and C are arrested for DUI on the same night. Person A tests at a .09 and Persons B and C refuse testing. A and B challenge the ALS and the criminal charges and lose. They’re both sentenced the minimum DUI sentence, which equals three months if the treatment requirement is satisfied. Person C pleads guilty to DUI right away and gets the same sentence except the State agrees to withdraw the ALS. Assuming treatment is completed on time:
  • Person A will serve a three-month and a six-month suspension, but they will start on the same day and run together. Total loss: six-months.
  • Person B will serve a three-month and a six-month suspension, but because testing was refused, the suspensions will run one-after-another. Total loss: nine months.
  • Person C will serve a three-month suspension. No other suspension will have existed. Total loss: three months.

As you can see, the threat of ALS is powerful leverage that the police/prosecutor will try to use to get people to plead guilty to DUI. That’s because people get desperate for the return of their license. Therefore, people tend to crack somewhere near the three-month mark once they realize they can get their license back in the near future. This causes them to incur extraordinary costs including: a minimum fine of $500, expensive mandatory treatment, three years of expensive SR-22 insurance, and more. The person will also have a criminal conviction on record for at least one year.

Another risk to giving a sample is that it might return a result that enables the State to bring enhanced charges. A person can be charged with “Aggravated” DUI if a breath or blood test comes back at or above 0.16. This subjects the person to enhanced penalties like mandatory jail time and a requirement to install a breath-testing machine in the car.

The “Right Answer

If you’ve made it this far in the article you’re probably overwhelmed. That’s to be expected. It takes a lawyer years of practice defending DUI cases to master all of the moving parts. You cannot be expected to make the right decision out in the field. That’s why the only right answer is to call a lawyer right away. To get started, call Jared Bedrick at Douglas, Leonard & Garvey, P.C., 1-800-240-1988 or fill out our online contact form.



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