3. Administrative License Suspensions Hearings

3.1 Overview

If you test over the legal limit (.08 for most drivers, .02 for drivers under 21), or refuse a breath test, you are subject to a license suspension.

Practice Note: Due to a ruling in place at the DMV, they do not act on breath testsat the legal limit[1]. So, a driver will never get an ALS suspension for .08 for an over-21 driver.

See Chapter 2 for more details on the penalties as well as the implied consent law. This chapter deals specifically with administrative license suspension (ALS) hearings related to refusing or testing over the legal limit.

3.2 Time Frame to Request a Hearing

A hearing must be requested within 30 days of the date of refusal, or 30 days from the date the results of a test over is received[2].

3.3 Scope of the Hearing

Your hearing request must specify what you want to be determined at the hearing. It is best to request the entire scope of the statute to be heard.

The scope of the administrative review or hearing shall be limited to the issues of:
“(a) Whether the officer had reasonable grounds to believe the arrested person had been driving, attempting to drive, or was in actual physical control of a vehicle upon the ways of this state or operating or attempting to operate a boat on the waters of this state or was driving, operating, attempting to operate, or in actual physical control of an OHRV while under the influence of intoxicating liquor, narcotics, or drugs;
(b) The facts upon which the reasonable grounds to believe such are based;
(c) Whether the person had been arrested;
(d) Whether the person has refused to submit to the test upon the request of the law enforcement officer or whether a properly administered test or tests disclosed an alcohol concentration of 0.08 or more, or, in the case of a person under 21 years of age, 0.02 or more;
(e) Whether the officer informed the arrested person of his or her right to have a similar test or tests conducted by a person of his or her own choosing; and
(f) Whether the officer informed the arrested person of the fact that refusal to permit the test would result in suspension of his or her license or driving privilege and that testing above the alcohol concentration level specified in RSA 265-A:2 or RSA 265-A:3 would also result in suspension.”[3]

You must request the presence of the arresting officer and send a copy of the hearing notice to him[4]. See Appendix Afor a sample hearing request.

3.4 The ALS Hearing

The hearing will be held at the Department of Safety, or one of the satellite DMV offices.  It is open to the public, and will be audio recorded. Anyone who testifies will do so under oath. The burden of proof at the hearing is preponderance of the evidence, meaning more likely than not. While it is a much lower standard than the criminal trial, it is still the State’s burden.

3.5 Issues to be Argued at the Hearing

While some of these issues may technically not be within the scope of the hearing, I try to argue them.  Let the hearing examiner make a determination that it is outside the scope of the hearing.

3.5.1. Jurisdiction

The first thing the Hearing Examiner will address is whether there is jurisdiction[5].  If there is a sworn report as defined in Saf-C 2802.08, the department shall have jurisdiction and proceed immediately as specified in Saf-C 2804.06.  If the report does not meet those requirements, the hearings examiner shall immediately dismiss the report for lack of jurisdiction.

3.5.2 Was the Operator under Arrest?

The DSMV 426 form (ALS Rights Form), states the person must have been arrested for a crime alleged to have been committed while driving under the influence of alcohol or drugs. While this is often apparent, there are a few situations that may cause a potential issue. First, is the issue of timing. If the test was requestedprior to arrest (or arguably custody), the DSM 426 form should not have been read in the first place.

Second, the person may not actually have been arrested. This most commonly arises when there is a car accident and the injured driver is transported to the hospital. The driver is usually not handcuffed, and is often not told they are under arrest. An argument can be made, that the DSM 426 form does not apply.

Third, the person may have been arrested for something other than DUI.  Similar charges that one could have been arrested for could include transporting alcohol, unlawful possession of alcohol or drugs, disorderly conduct, conduct after an accident, operating without a license, operating after suspension, and almost any other driving offense.

3.5.3 Public Way

To uphold a suspension, the State must prove the driver was on a public way. Usually this is not an issue. However, once in a while a driver will be driving on road that may be considered distinctly private, such as a driveway, a field, or anywhere else you would not expect the general public to be authorized to drive.

3.5.4 Operation

The State must prove the driver was actually operating the motor vehicle. Again, this is a rare issue, but if the driver is found outside the vehicle, or in a parked vehicle off the roadway, an argument can be made.

Driving is not the same as operating.  A driver can be deemed operating a parked car that is left running, or even not running[6].  The standard is: driving, operating, or to “be in actual physical control” of a motor vehicle[7]. "To have `actual physical control' of a motor vehicle, one must have the capacity bodily to guide or exercise dominion over the vehicle at the present time[8].”

There can also be an exception for “temporary shelter.”“What constitutes "actual physical control" will vary depending upon the facts of the case, but "the primary focus of the inquiry is whether the person is merely using the vehicle as a stationary shelter or whether it is reasonable to assume that the person will, while under the influence, jeopardize the public by exercising some measure of control over the vehicle.”[9]

3.5.5 Was the Driver Informed of his ALS Rights?

The police officer must inform the driver of his administrative license suspension rights. The officer typically does this by reading the DSM 426 form line by line.

I believe it is likely an open question of law as to whether the person must understand the form. Obviously, someone incredibly intoxicated would not understand the form, and I do not personally think that issue can be argued with success. However, if the driver does not speak English, I believe there is a good due process argument to be made[10].

Two of the rights that are specifically covered in the scope of the hearing, and on the DSM form,are whether the officer informed the person of his right to an independent test, and of the consequences of testing over or refusing. Again, if the officer read the form line by line, this will likely be a non-issue

3.5.6  Was the Driver Afforded an Independent Test?

Although, it is rare for someone to actually want an independent test, when it does happen it can help the case. Although the scope of the hearing only mentions the officer informing the driver of the right to an independent test, N.H. RSA 265-A:7 states a person shall have a right to a similar test. If the officer is either not accommodating this right, or interfering with someone exercising the right, there is a good argument to be made to rescind the suspension. (Note: some hearing examiners will hold the person must actually submit to a test for this right to apply, and therefore the right to an independent test would not apply to refusal cases).

Even if the officer brings the person to the hospital, and the hospital denies the person the test, a good argument can be made that the statutory mandate has not been followed. If this happens, try to show that the hospital routinely will do the test “at the direction of” the police officer. Then, you can argue the officer should have ordered/directed the hospital to do it.

3.5.7 Did the Officer have Reasonable Grounds to believe the Person was Impaired Due to Alcohol or Drugs?

This is the most argued issue. However, it is one of the most difficult issues to win,  because the burden is so low. However, if you don’t even argue the issue, you are missing out on a valuable opportunity.  This issue makes nearly everything relevant to the ALS hearing. Accordingly, some officers will try and object to a question as outside the scope of the hearing. They will likely be overruled.

See Chapter 2.8 for details related to an actual refusal, and Chapter 2.9  related to recanting a refusal.

3.5.9 Issues Related to a Breath Test

To prove a valid breath test above the legal limit, the State must provide:

a. Testimony from the law enforcement officer that he/she is certified to operate the breath test instrument, or a copy of his/her certification card;

b.  A copy of the preventive maintenance check form filled out by the forensic breath testing supervisor who performed the last preventive maintenance check on the breath test instrument in question prior to the time of the test at issue; and

c.  A copy of the breath test instrument printout which shows that the instrument operated properly and captured the required samples after the waiting period[11].

3.5.9.1 Was the Officer Certified?

Officers must be certified every year[12].

3.5.9.2 Was the Machine Certified?

The Intoxilyzer 5000 must be certified every six months[13].

3.5.9.3 Was there a Valid Test/Printout?

There are numerous things that must be present for a valid breath test.

‘Saf-C 6302.02  Sample Collection.

(a)  All breath samples shall be alveolar air and shall be collected at the direction of the certified operator.

(b)  Immediately prior to testing, the subject shall be observed by a certified operator for a period of 20 minutes to ensure the integrity of the sample. Prior to the observation period, the operator shall inform the subject not to place any material in his/her mouth.  Should vomiting, regurgitation or belching occur or any external material enter the mouth of the person to be examined, an additional 20 minute wait period shall occur before testing.  Should the certified operator determine that the subject is not complying with the requirements of  this paragraph  or (d) below at any point during the testing process, or the subject decides not to complete the sampling requirements in (d), the certified operator shall stop the test and record the test as a refusal pursuant to RSA 265:87.

(c)  The certified operator shall record and shall print out on the test record the identification of the subject, the name of the certified operator, and the date and time of the sample collection. Identification of the approved instrument used to conduct the test shall include the make, model, serial number and field location of the approved instrument.

(d)  A minimum of 2 subject samples shall be collected for each complete breath test.  If the alcohol concentration readings of the first 2 samples do not agree within +/- 0.02 g/210L, a third subject sample shall be collected.

(e)  A reported value shall be printed on the test record upon completion of the following:

(1)  A 20 minute observation period before the initial sample is taken;

(2)  The identification of the subject, operator and instrument;

(3)  An ambient or room air check performed by the approved instrument;

(4)  An internal standard reference check performed by the approved instrument;

(5)  The satisfactory collection of a minimum 2 subject samples which agree within +/- 0.02 g/210L;

(6)  The collection of a captured sample for each satisfactory subject sample collected in accordance with (a), (b) and (d);

(7)  An external standard reference check performed by the approved instrument in accordance with (h) below; and

(8)  The printout of test results and required information.

(f)  During the testing process there shall be 2 reference checks on the approved instrument.

(g)  Prior to collection of the first subject sample, the approved instrument shall be programmed to perform an internal standard reference check at separate set points.  If any one of the set points gives a reading greater than +/-5% of the assigned value, the approved instrument shall be so designed that it shall not allow a subject sample to be taken.

(h)  Prior to collection of the second subject sample an external standard reference check shall be conducted via the external reference port on the approved instrument.  The external standard reference check shall consist of a known alcohol/water solution held at a constant temperature of 34oC +/- 0.2oC, whose vapor shall give an alcohol concentration reading on the approved instrument of no less than 0.09 g/210L nor greater than 0.10 g/210L.  The approved instrument shall be so designed that a test cannot be completed if the external standard reference result is not within the acceptable range.

Saf-C 6302.03  Reporting of Findings.

(a)  All completed test results shall be printed on the breath test record and shall be reported to the second decimal place without rounding.

(b)  A reported value shall be printed when a breath test is completed in accordance with Saf-C 6302.02(e) above;

(c)  The reported value shall be the lower of the 2 values which are within +/- 0.02 g/210L agreement.

(d)  Breath test results shall be expressed as grams of alcohol per 210 liters of breath (g/210L) pursuant to RSA 259:3-b.

3.5.9.4 20 Minute Observation period

Check to see if the test was started at the correct time by looking at the bottom left of the printout ticket to see the starting time. Then look at when the test was started. It must be at least 20 minutes later. Sometimes, the officer does some bad math, and for whatever reason starts the test too early.

Further, the subject “shall be observed” during the 20 minute observation period.  If the officer is doing other things, such as fingerprints, or other booking, leaves the room, or turns his back to the subject, is he really observing the subject? The purpose for this rule is to ensure the person does not burp or put anything in his mouth. If the officer’s vision is obstructed, or he cannot hear the driver, he arguably did not observe the driver as required.

3.5.9.5 Burp, Regurgitate, or Putting anything in the Mouth

If the person burps, regurgitates, or puts anything in his mouth, the Intoxilyzer operator must start the 20 minutes all over again. Any time a driver puts hands to the mouth, or touches his face, there is an argument that something could have gone in his mouth.

3.5.9.6 Did the Subject get Copies of the Breath Sample?

Saf-C 6304.01  Preservation of Breath Alcohol Sample.

(a)  When a subject submits to a breath test on an approved instrument to determine his/her alcohol concentration, pursuant to RSA 265:84, RSA215-A:11-a or  RSA270:49, a captured sample of their breath shall be collected by the certified breath test instrument operator.

(b)  The certified operator shall identify each captured sample of breath collected in accordance with Saf-C 6302.02 by the following:

(1)  The lot number of the tube;

(2)  The name of the individual tested;

(3)  The date of collection; and

(4)  The number in the sequence of samples collected.

(c)  The captured samples of breath shall be placed in a captured sample bagalong with a copy of the subject's test record.

(d)  The certified operator shall record on theoutside of the captured sample bag:

(1)  The subject's name; and

(2)  The date the capturedsamples were collected.

(e)  Each subject who submits to a breath test and successfully completes the requirements of Saf-C 6302.02(e) shall be given the captured samples of his/her breath at the completion of the test.

3.5.9.7 If the Test Sample was Independently Analyzed, was the result Confirmed?

Once the driver has received his breath sample, the results can be analyzed. It is important that the driver does NOT OPEN THE BAG. It is fairly cheap to get the tubes tested, at around $150. I recommend using CG Labs[14].

Depending on the results, or other issues in the case, you may want to retain an expert witness.

3.5.10. Issues Related to Blood

3.5.10.1  Overview

In a blood test case, the State must produce evidence of the following:

a.  A  copy of the blood specimen collection form filled out and signed by the person who took the sample for the test in question, pursuant to Saf-C 6402.02; and

b.  A copy of the transmittal slip for the person’s blood specimen; and

c.  A copy of the certifying scientist’s report of the test result.[15]

Again, you must request the presence of the certifying scientist, otherwise their presence is waived[16].

3.5.10.2. Blood Collection Sample

Saf-C 6402.02  Blood Sample Collection.

(a)  Blood samples shall be collected pursuant to RSA 265:85, I, RSA 270:52, I, or RSA 215-A:11-d, I.

(b)  A cleanser shall be used to clean the area of skin where the blood specimen will be drawn. The cleanser shall contain no ingredients that would interfere with an analysis for alcohol or drugs

(c)  The person who collects the blood sample pursuant to RSA 265:85, I, RSA 270:52, I or RSA 215-A:11-d, I shall complete a blood sample collection form.

(d)  The completed blood sample collection form shall include:

(1)  The name and title of the person withdrawing the sample;

(2)  The name of his/her employer;

(3)  The name of the suspect;

(4)  The date and time the sample was drawn in accordance with Saf-C 6402.02;

(5)  The type of cleanser used to prepare the site; and

(6)  The signature of the person who took the sample.

(e)  The original copy of the blood sample collection form shall be retained by the submitting agency and a copy shall be given to the person who withdrew the sample.  The form shall be admissible evidence of proper sample collection pursuant to RSA 265:90, IV.

Typically, if the blood was taken at a hospital at the request of law enforcement, a specific form will be used. See Appendix B. This form, if filled out properly, will include all of the information required in Saf-C 6403.02.

3.5.10.3. Who Collected the Sample?

Only a duly licensed physician, registered nurse, certified physician's assistant, or qualified medical technician or medical technologist acting at the request of a law enforcement officer, authorized agent, or peace officer may withdraw blood for the purpose of a test required by RSA 265-A:4.[17]

This information will be on the blood collection form,but, it is often abbreviated as initials on the form. Because the person who drew the blood does not have to be present, accordingly, there will be no testimony from that person. I often argue the initials make it unclear as to whether the person was qualified as required.

3.5.10.4 What type of Cleanser was Used?

The area must be cleansed with a cleanser that contains no ingredients which can interfere with the analysis. Typically, povidone-iodine is used. Chemicals that should not be used, obviously, include alcohol, or things that may contain alcohol, such as certain soaps.

3.5.10.5. Blood Collection Tubes

Saf-C 6402.03  Blood Sample Collection Container.

(a)  The container used for collection of a blood sample shall meet the following criteria:

(1)  Be a commercially available evacuation tube, or a glass bottle; and

(2)  Contain a preservative such as sodium fluoride and an anticoagulant such as potassium oxalate sufficient for the volume of sample collected.

It can be difficult to show what preservative, if any, was in the container.  The State lab does not check for it, and often the police officer or phlebotomist have no idea.  One way you can determine what preservative is present is to check the top of the tube.Gray top tubes are the ones that are supposed to be used for legal blood draws to determine BAC. The grey top indicates a preservative is in the container.

Usually, the officer gives the phlebotomist a “blood kit.” The blood kit should have the correct container/tubes, and will often contain the correct swabbing cleanser.

3.5.10.6. Was the Blood Properly Shipped?

Saf-C 6402.07Sample Handling and Transport.

(a)  The law enforcement officer shall submit the secured container to the forensic laboratory in accordance with RSA 265:85, II, as soon as feasible.

(b)  If mailed, the sample shall be mailed by registered or certified mail to enable tracking of the sample.

(c)  The mailing container shall conform with postal regulations in effect at the time of shipment.

3.5.10.7 Was the Blood Properly Analyzed?

Saf-C 6402.08  Sample Receipt and Identification.

(a)  The forensic laboratory shall record on the DSSP 20 form the following information for each sample received  pursuant to RSA 265:84, RSA 270:49 or RSA 215-A:11-a, II:

(1)  The forensic laboratory number assigned to the sample; and

(2)  The record of evidence information.

(b)  Any problem encountered with the sample from the time of receipt to the date of destruction shall be noted in the case file.

(c)  A sample submitted in accordance with Saf-C 6402.08 shall be placed in a secure refrigerator until the time of testing or destruction.

(d)  Forensic laboratory personnel shall maintain a record of evidence on the DSSP 20 to document all handling of the sample until the sample is released or destroyed.

Saf-C 6402.09  Alcohol Method.

(a) A blood or urine sample submitted for determination of alcohol concentration shall be tested by gas chromatography.

(b) An internal standard shall be used in the testing of all samples to determine the concentration of analyte.

(c)  Prior to each day’s testing, the forensic laboratory shall calibrate a method or verify a previously calibrated method.

(d)  A blank standard shall be tested at the beginning of each day. Sample test results shall not be reported if the blank standard result is greater than 0.004g/100ml for blood or 0.004g/67ml for urine.

(e)  A minimum of 2 standards of different concentrations shall be tested at the beginning and end of each day that samples are tested as well as after every tenth sample.

(f)  A minimum of one control shall be tested in duplicate each day that samples are tested.

(g) Sample test results shall not be reported if either of the standard or control test results do not fall within the predetermined range of accuracy and precision for the procedure employed.

(h)  Each sample shall be tested in duplicate.

(i)  Results of duplicate testing shall fall within the predetermined limit of precision for the procedure employed.  Test results which exceed the precision limit shall not be reported.

Saf-C 6402.10Recording of Analytical Data.

(a)  All analytical data shall be recorded daily to include:

(1)  The date of testing;

(2)  The target values, ranges and test results of all blanks, standards and controls;

(3)  The lot numbers and expiration dates of solutions used;

(4)  The type of equipment used;

(5)  The results of the testing;

(6)  The reported value determined in accordance with Saf-C 6402.11;

(7)  A notation of any problems with the testing; and

(8)  The name of the person who conducted the test.

3.5.10.8 What was the Actual BAC Resultof the Test?

Unlike breath test results, which are always chopped and then rounded down[18], blood test results are rounded to the nearest second decimal place according to Saf-C 6402.12[19]. Accordingly, if the driver’s blood was .076 and .077, the reported value will be .08[20].

Practice Tip: Again, get the full data files from the Crime Lab. The replicate results of the testing is included in the analysis.

3.5.10.9. Chain of Custody

How did the blood travel from the driver’s arm to the crime lab to be analyzed? Usually this issue goes to weight of the evidence, as opposed to admissibility[21].  You should obtain the chain of custody log from both the police department, as well as the chain of custody while the blood is at the Crime Lab.

3.5.11. Issues Related to Urine Tests

Although it is rare, in the event you have a case involving a BAC based upon a urine test, the following administrative rules apply.

Saf-C 6402.04  Urine Sample Collection.

(a)  Urine samples shall be collected pursuant to RSA 265:85, I, RSA 270:52, I or RSA 215-A:11-d,

(b)  For alcohol concentration, a total of 2 urine samples shall be collected. The second sample shall be collected no sooner than one hour after the first.

(c)  Urine samples shall be collected in a commercially prepared container.

(d)  The sample shall be collected in the presence of a person authorized by the submitting

agency to ensure the integrity of the sample.

(e)  The person observing the sample collection shall complete a urine sample collection form.

(f)  The completed urine sample collection form shall include:

(1)  The name of the person observing the sample collection;

(2)  The name of his/her employer;

(3)  The name of the suspect;

(4)  Thedate and time the sample was collected in accordance with Saf-C 6402.04; and

(5)  The signature of the person observing the sample collection.

(g)  The submitting agency shall retain the original copy of the urine sample collection form and a copy shall be given to the person observing the sample collection.

Similar to blood tests, urine tests results are roundedoff, not dropped[22].

[1] Due to a holding by the Superior Court in Hamilton v. Turner, 93-E-213, (Merrimack, Manias, 7/30/93), the DMV will not act on test over exactly at the legal limit (.08 or .02 for under 21 drivers).

[2] N.H. RSA 265-A:31(I)(a)

[3] N.H. RSA 265-A:31(II)

[4] N.H. RSA 265-A:31(I)(c)

[5]Saf-C 2804.05

[6]Archibald v. Beecher, 00-E-337, (Rockingham, Abramson, 4/26/01) – Keys in ignition, motor not running, but radio was on.

[7] N.H. RSA 265-A:31(I)(b)

[8]State v. Willard, 139 N.H. 568, 571 (1995)

[9]State v. Holloran, 140 N.H. 563, 565 (1995).

[10] See State of NJ v German Marquez, decided July 12, 2010 - Held: New Jersey Supreme Court held that ALS rights must be explained in the driver's native language

[11]Saf-C 2804.07(b)(1)

[12]Saf-C 6301.14

[13]Saf-C 6302.04(a)

[14]www.cglabs.com(603) 485-4154

[15]Saf-C 2804.07 (b)(2)

[16]Saf-C 2804.01(g)

[17] N.H. RSA 265-A:5

[18]Saf-C 6302.03(a)

[19]Saf-C 6402.11

[20] However, see Carignan v. Beecher, 02-E-229, (Strafford, Mohl, 4/22/03), holding that rounding up was permissible.

[21]Seluk v. Beecher, 00-E-641, (Rockingham, Abramson, 3/19/01)

[22]Saf-C 6402.11(c)