Daniel Hynes

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Breath test refusal in New Hampshire

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Many people ask me what happens if they refuse a breath test after being arrested for DWI in New Hampshire. There are a couple major consequences of refusing a chemical test (breath, blood, urine, or physical tests). The first is that you will lose your license. The license loss is for 6 months for a first offense. If you have a previous DWI conviction, or previously refused the breath test, the license loss will be for 2 years. This license loss runs in addition (consecutively) to every other license loss, such as habitual offender, or a DWI conviction, or a plea to a lesser offense. The DMV has zero discretion to change the license loss. You can not explain to them how it will create a hardship for you or that you need your license to drive. In fact, New Hampshire does not even have any hardship license provisions, or work permits, or any other temporary permits to let you drive while under suspension for refusing.

If you do nothing, this license loss is automatic. However, you are entitled to an administrative license suspension (ALS) hearing regarding the refusal. You must request this hearing within 30 days of the date of refusal. You cannot request the hearing after 30 days. Also, the hearing is not just automatically given to you after you are arrested, you do have to request it in writing, and otherwise comply with the rules. Once you hire a DWI lawyer, have him or her request the hearing. Some people put too little information in their hearing request, and some people put too much information into it. Also, it is a mistake to not require the officer's presence at the hearing.

Once you request the hearing, the DMV will schedule you a hearing in roughly a couple of weeks. Because it takes a few weeks to get the hearing, you should not wait until the last possible day to request the hearing. Just by requesting the hearing, you do not get to extend your temporary license, or otherwise not lose your license. The only way to not go under suspension 30 days after the date of arrest for refusing is to win at an ALS hearing.

There are many different things the State may have to show at the hearing.

However, the burden of proof is low . It is a civil hearing, not a criminal hearing. The State only needs to prove their case by a preponderance of evidence, or that it was more likely or not. They do not have to prove you were impaired, just that a reasonable officer could have believed you were impaired.

The second major consequence of refusing in New Hampshire is that it can be used against you in the criminal case. The prosecutor is going to show the judge you refused a test and then claim the reason you refused was because you didn't want to give the state evidence of your guilt because you knew you were above the legal limit. However, not all refusals are given the same weight in the criminal case. The worst refusal is if you told the cop you were drunk and would fail. Better refusals can be where someone refused the test because a lawyer told them to do so.

You are not entitled to a lawyer at the time you have to make a decision as to whether to give the breath test or not. However, some police officers will accommodate a request to ask to speak to a lawyer. It is probably in your best interest to ask to call a lawyer prior to deciding whether you should give a breath test or not. If you did not have anything to drink, you should ALWAYS give the breath test. While it is not 100%, it should not be that inaccurate. If you did have nothing to drink, and do manage to give a breath test that is above 0, you should insist on your right to an independent blood test. The officer may transport you to the hospital to get your blood drawn. If not, tell the police you want a blood test, and immediately go to the hospital after being released from the police station/ jail.

A breath test refusal is just some of the evidence the prosecutor will use against you in the criminal case. It is important to show the rest of the case does not show you are impaired, as the New Hampshire Supreme Court has held that the weight of a refusal is less in cases where the person might not be impaired.

If you refused a breath test give our DUI lawyers a call as soon as possible to protect your rights regarding a hearing and making the state prove their case.If you do nothing, you will lose your New Hampshire Driver's license/ privilege to drive in the State.

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Guest Saturday, 24 October 2020