DWI/DUI Frequently Asked Questions in New Hampshire

1. What Are the Penalties for First Offense DWI in New Hampshire?
A driver who is convicted of DWI (first offense) is subject to the following penalties:

• A minimum ninety (90) day actual loss of license and a maximum two (2) year loss of license.
• A fine between $500 and $1,200, plus a 20% penalty assessment.
• A twenty (20) hour impaired driver intervention program at a cost of approximately $600. If the driver was under twenty-one (21), the minimum period of license loss is one (1) year.

For all drivers, the minimum period of license revocation is actually nine (9) months; but, the court can allow the driver to petition for reinstatement after ninety (90) days (unless he/she was under twenty-one (21) at the time of the offense) if the impaired driver intervention program has been enrolled in within forty-five (45) days of conviction. First offense DWI is a Class B Misdemeanor. However, one (1) year after conviction, the driver may ask the court to reduce the offense level to a Violation.

Also, as explained below, a driver charged with DWI in New Hampshire may be subject to an additional Administrative License Suspension ("ALS") for

• Refusing to submit to a post-arrest sobriety test or alcohol concentration test.
• Submitting to a post-arrest alcohol concentration test that discloses an alcohol concentration of greater than 0.08, or 0.02 if under the age of twenty-one (21).

The ALS is for an automatic six (6) months if the driver has no prior DWI's or post-arrest test refusals. The ALS is for an automatic two (2) years if the driver has a prior DWI or a prior post-arrest test refusal. If the ALS is for a refusal it runs consecutive to (e.g., in addition to) any court imposed suspension or revocation. If the ALS is for an alcohol concentration of 0.08 or greater, it will run concurrent (at the same time) with the court imposed revocation.

Thus, the combined DWI/ALS minimum actual loss of license for First Offense DWI and refusing to submit to a post-arrest alcohol concentration test is a minimum of nine (9) months. If there was a prior refusal or a prior DWI on the driver's record, the combined minimum actual loss of license is twenty-seven (27) months.

The combined DWI/ALS minimum actual loss of license for first offense DWI and taking a post-arrest test that reveals an alcohol concentration of 0.08 or greater is six (6) months. If there was a prior refusal or a prior DWI on the driver's record, the combined minimum actual loss of license is two (2) years.

The ALS will be automatic unless the driver requests an administrative hearing within thirty (30) days of arrest, or from receipt of the blood test results. Therefore, any driver with grounds to challenge the ALS should request a hearing and request the presence of the relevant officers immediately.

New Hampshire law provides for increased penalties for repeat offenders and for DWI’s committed when

• There is a passenger under sixteen (16).
• The driver was going more than thirty (30) miles over the posted speed limit.
• The driver had an alcohol concentration of .16 or greater.
• The driver attempted to elude pursuit by law enforcement.
• The driver caused a motor vehicle collision resulting in death or serious bodily injury.
   

2. What Are the Penalties for Aggravated DWI and DWI, Subsequent Offense?
If the complaint alleges that the driver has been convicted of a previous DWI offense (in any jurisdiction) within the past ten (10) years, there is

• A mandatory jail sentence.
• Mandatory residential treatment at the driver's expense.
• A mandatory loss of license of at least three (3) years.

If the complaint alleges a second offense and the prior conviction is within the last two (2) years, the driver is looking at

• A mandatory minimum thirty (30) days in jail and a maximum sentence of one year in jail.
• 7 days at the New Hampshire DWI Multiple Offender Intervention Detention Program ("MOP") at a cost of approximately $1,200, to commence immediately upon release from jail.
• A mandatory three (3) year loss of license; and (D) a fine between $500 and $2,000 plus a 20% penalty assessment. If the second offense occurred more than two (2) years before the date of the new offense, the mandatory jail sentence is only three (3) days, but other sentencing provisions are identical.

If the complaint alleges a prior DWI offense within the past ten (10) years and a total of two (2) prior DWI offenses altogether, the driver is looking at

• Six (6) months to one (1) year in jail.
• A twenty-eight (28) day residential treatment program to be completed at the driver's expense.
• A mandatory minimum five (5) year loss of license; and (D) a fine between $500 and $2,000 plus a 20% penalty assessment.

A driver with a prior DWI offense within the past ten (10) years and a total of three (3) prior DWI offenses altogether may be prosecuted for a Class B Felony and sent to the New Hampshire State Prison for a maximum of 3 1/2 to 7 years. In addition the driver will need to successfully complete a twenty-eight (28) day residential treatment program at his own expense and cannot have his license or privilege to operate a motor vehicle in New Hampshire restored for seven (7) years.

3. What Are the Penalties for Causing Death or Serious Bodily Injury by DWI?
A driver who causes a motor vehicle accident while impaired by alcohol or drugs which results in serious bodily injury to any person, including the driver, may be prosecuted for Class B Felony Aggravated DWI. This charge carries

• A mandatory minimum fourteen (14) day jail sentence and a maximum sentence of 3 1/2 to 7 years in the New Hampshire State Prison.
• Seven (7) days of residential treatment at the Multiple Offender Program (“MOP”) at the driver's expense.
• Loss of license.

A driver who causes another person's death by DWI may be prosecuted for Class A Felony Negligent Homicide. That charge carries a maximum sentence of 7 1/2 to 15 years in the New Hampshire State Prison. If the driver has prior DWI convictions the prosecutor may file a charge of Reckless Manslaughter rather than Negligent Homicide. The New Hampshire Supreme Court has held that a driver's prior convictions--and prior experience with court mandated treatment--can provide the driver with sufficient knowledge of the dangers of DWI to support a finding of criminal recklessness. The maximum penalty for Manslaughter is 15 to 30 years in State Prison.

4. What Are the Penalties if I Refuse a Post-arrest Breath Test?
If the police officer followed the correct procedure, you will be subject to an Administrative License Suspension ("ALS"). The ALS will be for six (6) months if you have no previous DWI's or test refusals on your record. It will be for two (2) years if you have either a prior DWI or a prior post-arrest test refusal. The suspension for refusing a post-arrest test is always consecutive (e.g., in addition to) any period of revocation imposed by the court.

Note that this is an administrative suspension which is imposed by the Department of Safety. The ALS is automatic unless you file a request for a hearing with the Department of Safety within thirty (30) days of your arrest (or within thirty (30) days of receiving notice of the ALS).

Additionally, the failure to submit to a post-arrest breath test may be admitted in court in a DWI case to prove consciousness of guilt.

5. What Happens if I Refuse a Post-arrest Blood Test, Urine Test or Physical Field Sobriety Test?
Post-arrest blood tests, urine tests and physical field sobriety tests are treated the same as post-arrest breath tests. A refusal to take these tests will trigger an ALS and may be used as evidence in the underlying DWI case. For more information about ALS, please see Question 4, above.

6. What Are the Penalties if I Take a Post-arrest Breath Test Which Reveals an Alcohol Concentration of 0.08 or Greater?
If the police officer followed the proper procedure, you will be subject to an ALS that will be concurrent (e.g., simultaneous) with any period of revocation imposed by the court. The length of the ALS will be six (6) months if you have no prior DWI’s or test refusals. It will be two (2) years if you have either a prior DWI or a prior post-arrest test refusal.

The ALS will be vacated (if you request a hearing) if the police officer failed to follow the procedure described in response to Question 4, above. Additionally, the ALS should be vacated if:

• The intoxilyzer was not certified;
• There were maintenance or reliability problems with the intoxilyzer;
• The intoxilyzer operator was not certified; or
• The test result was 0.08 (because a result of less than 0.08 would be within the machine's margin of error).

For more information about ALS, please see Question 4, above.

Additionally, New Hampshire law allows the prosecutor to charge a driver with "per se DWI" for driving with an alcohol concentration of 0.08 or greater. Since most intoxilyzer tests are taken about an hour after the initial stop, in close cases it is necessary to consider

• The machine's margin of error.
• The likely rate of alcohol absorption and elimination to determine whether there is a good defense to a per se complaint.

Additional information about breath testing technology is provided below.

7. What Are the Penalties if I Take a Pre-arrest Breath Test Which Reveals an Alcohol Concentration of 0.08 or Greater?
There is a statute which says that the Preliminary Breath Test (“PBT”) results are admissible if certain procedural pre-requisites are met. These procedural pre-requisites are as follows:

• The officer must be certified to use the PBT device.
• The PBT device must be certified by the Department of Health and Human Services.
• The officer must have reasonable grounds to believe that the driver was operating a motor vehicle while under the influence of alcohol or drugs.
• The officer must advise the driver that refusing or taking a PBT will neither prevent nor require a subsequent post-arrest test.

Because PBT devices are less reliable than desktop intoxilyzers, many lawyers have argued that--notwithstanding the statute--PBT test results should be excluded under the N.H. Rules of Evidence. The conflict between the PBT statute and the Rules of Evidence involves important questions relating to separation of powers. Those questions have not yet been answered by the courts.

8. What Is the “Legal Limit” in New Hampshire?
New Hampshire defines legal impairment in two alternative ways. Under one definition, a driver is per se impaired if he has an alcohol concentration of 0.08 or greater at the time he was driving. A driver who is under 21 is per se impaired if he has an alcohol concentration of .02 or greater. A driver with a CDL license who is driving a commercial vehicle is per se impaired if he has an alcohol concentration of 0.04.

Under the second definition, a driver is DWI if he is actually impaired by alcohol and/or drugs to any perceptible degree. Under this definition, the driver's alcohol concentration is merely circumstantial evidence of actual impairment. An alcohol concentration of 0.08 or greater is prima facie evidence of impairment. This means that if the State proves that the driver had an alcohol concentration of 0.08 or greater at the time he was driving, that is sufficient to prove impairment. However, it is not conclusive evidence of impairment. An alcohol concentration of 0.03 or less is prima facie evidence that the driver was not impaired.

9. Is There a Difference Between a Hospital Blood Test and a State Blood Test?
A State blood test is performed on whole blood and the result is reported in terms of grams of alcohol per unit of whole blood. Most hospital tests are performed on blood plasma and the result is reported in terms of grams of alcohol per unit of blood plasma. Because alcohol has a greater affinity for blood plasma than for whole blood, a hospital test will almost always state a higher alcohol concentration than a whole blood test.

The State's experts typically say that a hospital test overstates whole blood alcohol concentration by 15% to 20%. This, however, is gross oversimplification. The difference between whole blood and blood plasma alcohol concentration varies greatly among people and varies within a given individual over time.

10. What Should I Do With the “Second Sample” of My Breath?
Please do not open the container. Place the sealed bag in a safe place and give it to your NH drunk driving defense lawyer at your earliest opportunity. This is very important because you are entitled to have the second sample tested by an independent laboratory (at a cost of around $110). If the test reports are inconsistent with the intoxilyzer result, you may be able to suppress the intoxilyzer result at your DWI trial and your ALS hearing.

11. Am I Entitled to Receive a Copy of the Police Reports in My Case?
Your New Hampshire drunk driving defense lawyer will request "discovery" from the prosecutors office and all of the relevant police reports should be provided. Your lawyer should also obtain copies of any cruiser and booking videos if they were made as well as the maintenance records for the intoxilyzer if there was a breath test in your case. If you are representing yourself in court (which is not advisable), you should write to the prosecutor to obtain this information.

12. What Is IDIP?
It is the Impaired Driver Intervention Program. This is a twenty (20) hour course which persons convicted of DWI, first offense must take prior to restoration of their driving privileges. An intensive weekend course is available. The N.H. Division of Motor Vehicles maintains a statewide list of approved IDIP programs. If you reside in another state you can attend an IDIP program in New Hampshire or a state approved IDIP program in the state in which you reside. You should make sure that an out of state program is acceptable to the New Hampshire DMV before you enroll.

At the conclusion of the IDIP program you will be evaluated for follow up treatment. Your license or privilege to drive in New Hampshire will not be restored until you have successfully completed all follow up treatment. This may include participation in individual alcohol counseling or in a self-help program such as, for example, alcoholics anonymous. If you object to the IDIP's recommendation for follow up treatment, you may obtain a second opinion from a licensed alcohol and drug abuse prevention counselor (LADAC) at your own expense. You can appeal a recommendation of follow up treatment to the Department of Safety. The Department of Safety provides a downloadable appeal form. The Department of Health and Human Services ("DHHS") maintains an information sheet on IDIP programs.

Note that under the DHHS regulations, follow up treatment should be automatically recommended if the driver's alcohol concentration was .16 (or .08 if the driver was under 21). Follow up treatment should also be automatically recommended if the driver had multiple alcohol or drug related motor vehicle arrests. The regulations set forth fairly detailed criteria to determine whether follow up treatment should be ordered on other grounds.

13. What Is MOP?
MOP is the State's seven day residential Multiple Offender Program. Persons convicted of

• Aggravated DWI.
• DWI, Subsequent Offense must complete MOP at a cost of approximately $1,200.

Persons who plead guilty to DWI, first offense, but who have a prior DWI conviction on their record, must complete MOP or an equivalent "Phase II" program. The Department of Health and Human Services maintains an information sheet on MOP and other Phase II programs.

At the conclusion of MOP or a Phase II program, you will be evaluated for follow up treatment. Your license or privilege to drive in New Hampshire will not be restored until you have successfully completed all follow up treatment. For more information about follow up treatment, and your right to contest a recommendation for follow up treatment, please see Question 12 above.

14. Am I Supposed to Receive My Miranda Warnings?
The police only need to give Miranda warnings prior to post-arrest custodial interrogation. Generally, there is no need to give Miranda warnings in connection with roadside questioning during an investigative detention. As a practical matter this means that Miranda warnings are not required in DWI cases until the driver is arrested.

Your New Hampshire criminal defense lawyer should carefully review the police reports and interview you to determine whether you may have a valid motion to suppress any statements that you made to the police.

15. Does New Hampshire Have a Hardship or Cinderella License for Persons Who Need to Drive to Work After Their License or Privilege to Drive in New Hampshire Is Suspended or Revoked?
No.