2. Implied Consent Statute

2.1 Overview

The implied consent law states that all drivers who operate on the roads of New Hampshire agree to give a chemical test (breath test, blood test, urine test, or physical test), upon the request of an officer if arrested for DWI.

2.2 Text of the Law

N.H. RSA 265-A:4 Implied Consent of Driver or Operator to Submit to Testing to Determine Alcohol Concentration. – Any person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state, or operates or attempts to operate a boat upon the public waters of the state shall be deemed to have given consent to physical tests and examinations for the purpose of determining whether such person is under the influence of intoxicating liquor or controlled drugs, and to a chemical, infrared molecular absorption, or gas chromatograph test or tests of any or all of any combination of the following: blood, urine, or breath, for the purpose of determining the controlled drug content of such person's blood or alcohol concentration if arrested for any offense arising out of acts alleged to have been committed while the person was driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration in excess of the statutory limits contained in RSA 265-A:2 or RSA 265-A:3. The test or tests shall be administered at the direction of a law enforcement officer, peace officer, or authorized agent having reasonable grounds to believe the person to have been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving or in actual physical control of a vehicle, or operating or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration of 0.08 or more, or in the case of a person under the age of 21, 0.02 or more. A copy of the report of any such test shall be furnished by the law enforcement agency to the person tested within 48 hours of receipt of the report by the agency by certified mail directed to the address shown on such person's license or other identification furnished by the person. Results of a test of the breath shall be furnished immediately in writing to the person tested by the certified breath testing operator conducting the test. When the incident involves an accident resulting in death or serious bodily injury to any person as provided in RSA 265-A:16, the prerequisites of N.H. RSA 265-A:8 shall not apply. Properly trained personnel of the United States Coast Guard may arrest and conduct tests on persons who are believed to be under the influence of intoxicating liquor or controlled drugs, or a combination thereof, and who are in physical control of a boat operating upon the public coastal waters of this state.

2.3 Are the Tests Optional?

This depends on what the driver is arrested for. If the arrest is for DWI alleging serious bodily injury as a result of an accident, the test is mandatory. This means the officer can force the driver to give a test. This typically happens at a hospital, and the test is usually of blood. It is often referred to as a “forced draw.”

If the driver has been arrested for DWI that does not involve serious bodily injury, the legislature has given the driver the right to refuse to provide the chemical test. However, there are consequences for this refusal.

2.4 Penalties for a Refusal

For a first time refusal (with no previous DWI convictions or previous ALS suspension for a test above the legal limit) the driver will be subjected to a six month loss of license. For a subsequent refusal, the loss of license will be for two years[1].  Further, this license loss must run in addition to any other license loss, such as a DWI conviction.[2].

If there is a chemical test refusal, the refusal can be used in the criminal case as evidence of guilt[3]. However, not all refusals are given the same weight. Refusals involving admissions of guilt are given more emphasis. For example, a refusal where the driver stated “I know I’m over, and you know I’m over[4]”, or “I’m too drunk, I won’t pass the test[5].” Better refusals, tend to be where the driver states he knows the test isnot accurate, a lawyer told him to refuse, he knows he has a right to refuse, or he does not want to get stuck with a needle (for a blood test).

2.5 Penalties for Testing over the Legal Limit

For a first offense, the penalty is a six month loss of license. There is a two year loss of license if there is a previous refusal, test over the legal limit, or a previous DWI conviction[6].  This license loss can run concurrently (at the same time) as a license loss in the criminal case.

Practice Note: The DMV will automatically give the driver credit for the time under suspension from the ALS so that the driver gets credit for both.

2.6 Right to an Independent Test

Under the implied consent law, the driver has a right to have an independent test done, at his own expense.

“Any person to whom RSA 265-A:4 is applicable shall have the right at his or her own expense to have similar tests made by a person of his or her own choosing who is competent to conduct the tests, as determined by the commissioner of the department of safety under RSA 265-A:5, and shall be so informed by the law enforcement officer at the same time as the person is requested to permit a test under the provisions of RSA 265-A:4. The failure or inability of an arrested person to obtain an additional test shall not preclude the admission of any test taken at the direction of a law enforcement officer, authorized agent, or peace officer. Nothing herein shall require the release from custody of the arrested person for the purpose of having such additional test made.”[7]

Most police officers will transport someone to the local hospital to have a blood test drawn, if requested[8]. However, many hospitals are reluctant to draw the blood for the driver (Except when ordered by the police, in which case they are more than willing to cooperate). If the hospital staff refuses to draw blood, or otherwise frustrates the driver’s right to an independent test, there is a good argument that the driver’s rights were deprived, and accordingly, the original test might be kept out of evidence, and/or any administrative license loss avoided.

2.7 The Officer Chooses which Type of Test

Under the implied consent law, the driver agrees to submit to a breath, blood, urine, physical test, or a combination thereof. It is up to the officer to choose which type of test. Sometimes, the officer will ask for multiple tests. This most commonly occurs where the officer first asks for a breath test, followed by a subsequent blood test. An officer is likely to do this when he thinks a driver is impaired by drugs after a breath test comes back low.

However, as later discussed in the Chapter related to Administrative License Suspensions, the officer must have reasonable grounds to ask for the test.

2.8 Was there an actual Refusal?

A driver is not required to give a verbal or written refusal. Courts look at "[a] driver's entire conduct, not merely words expressing consent or refusal, indicate whether he has actually refused the test," [9]

This is often referred to as an implicit refusal, or constructive refusal.  Being uncooperative, is a factor to consider[10], as well as whether someone is interfering with the test[11].  “A refusal should not be inferred unless an arrestee manifests a decision not to cooperate.”[12]

One unfortunate scenario, that can occur, is where a driver agrees to give a breath test, but is not able to complete the test. When this happens, the officer usually states the driver was frustrating the test by being uncooperative by intentionally burping, blowing around the mouth-piece, or not blowing for a long enough period.

However, there are circumstances where it is not the driver’s fault. For example. the machine could have been broken that day, the officer may have given bad instructions, or the driver may have a medical condition, such as lung problems, or a stroke, or any other condition that interferes with their mouth or breathing ability.

2.9Cured Refusal

In certain circumstances, if the person refuses once, but then agrees to give the test a short time later, the driver can “cure” a refusal.  However, this must be done almost immediately after the original refusal.[13]

2.10 Right to Counsel at Time of Providing a Chemical Test

The right to counsel does not apply at the time the driver must choose whether to give a test, or to refuse[14]. However, some police officers will accommodate this right, even though they have no legal duty to do so. Further, an officer should not be giving legal advice, and if the advice is wrong, an ALS suspension may be vacated as a result[15].

[1] N.H. RSA 265-A:30(II). Note, however, that if it is a refusal, and the first ALS was for a test above the legal limit, but did not result in a DWI conviction, the refusal results in only a 6 month loss of license. See N.H. RSA 265-A:14(I)(b)

[2] N.H. RSA 265-A:32

[3]N.H. RSA 265-A:10; State v. Cormier, 127 N.H. 253 (1985)

[4]State v. Parmenter, 149 N.H. 40, 43 (2002)

[5]South Dakota v. Neville, 459 U.S. 553, 555 (1983)

[6] N.H. RSA 265-A:30(II)(b)

[7] N.H. RSA 265-A:7

[8] But see State v. Winslow 140 NH 31 (1995), holding the officer does not have to, but the officer must make a meaningful opportunity. See also State v. Messner, 481 N.W.2d 236, 240 (N.D. 1992). , besides a phone call, “police may have a duty to further accommodate an accused's reasonable request for an independent test by a person of his own choosing."

[9]Jordan v. State, 132 N.H. 34, 561 (1989)

[10]Wensley v. Director, NH Div. of Motor Vehicles, 140 NH 560 (1995)

[11]Jordan v. State, 132 N.H. at 36-37.

[12]Wensley v. Director, NH Div. of Motor Vehicles, 140 NH 560,563 (1995)

[13]Harlan v. State, 113 NH 194, 198 (1973)

[14]State v. Greene, 128 NH 317, 319 (1986)

[15]Leavy v. Turner, 92-E-93, (Strafford, Nadeau, 9/1/92) – Officer stated driver “did not need a lawyer”. Superior Court vacated suspension.