New Hampshire DUI Implied Consent Laws: Refusing a Blood, Breath, or Urine Test

In New Hampshire, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

New Hampshire law requires you to take a breath or blood test if you are arrested for a DUI. New Hampshire’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving or boating under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken at the time of your arrest. If you decide to take a test, then you have the right to have additional tests taken by a medical professional of your choice.

Additionally, New Hampshire’s implied consent law says that you consent to taking a preliminary breath test, even if you have not been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test, and the officer should say so. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described above.

You can read New Hampshire’s implied consent law and about the preliminary test in the New Hampshire Revised Statutes Annotated 265-A:4, and 265-A:15.

What If I Wasn't Driving the Car?

Note that you could still be arrested for a DUI if you are not driving. If you attempt to drive, or if you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. In New Hampshire, actual, physical control means that the driver is doing more than using the vehicle as a stationary shelter, but it does not take much for an officer to reasonably believe that the driver wanted to move the vehicle.

For example, a driver realizes he is drunk so he pulls over, turns off the engine, but stays in the driver’s seat and keeps the keys in the ignition. An officer finds the parked car, approaches the driver, and on smelling alcohol on the driver’s breath arrests him for a DUI. (You can read about this scenario and how the court upheld the DUI conviction in the case State v. Holloran, 140 N.H. 563 (1995).)

Penalties for Refusing to Take the Test

1st Offense

2d Offense

3rd Offense

Refusal to take test

180 day license suspension

2 year license suspension

2 year license suspension

Once you are arrested, the officer should tell you that the penalties for refusing to take a blood, breath, or urine test begin with a suspension of your license for 180 days. You will lose your license for two years if this is your second refusal or if you already had a DUI conviction. If you refused the preliminary breath test, were arrested, and then refused again, then your two refusals count as only one because you had the right to refuse the preliminary test without penalty.

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, if the incident that caused you to be arrested also caused injury or death to yourself or another person, then an officer can order a test without asking you first. Also, the state may administer the test if you are unconscious or dead, even if you haven’t yet been arrested.

The penalties for refusing to submit to a chemical test are found in the New Hampshire Revised Statutes Annotated 265-A:14.

Should You Refuse to Take a Mandatory DUI Test in New Hampshire?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In New Hampshire, the consequences for a first DUI include $500 fines, an impaired-driver intervention program, and suspension of your license for 9 months. You have to go to jail too if you have had more than one DUI. These consequences are more severe than refusing a chemical test. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over .08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in New Hampshire or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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