Frequently Asked Questions
A driver who is convicted of DWI (first offense) is subject to the following penalties:
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
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
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
If the complaint alleges a second offense and the prior conviction is within the last two (2) years, the driver is looking at
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
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.
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 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.
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.
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.
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
Additional information about breath testing technology is provided below.
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:
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.
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.
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.
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.
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.
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.
MOP is the State's seven day residential Multiple Offender Program. Persons convicted of
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.
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.
New Hampshire can only revoke or suspend your privilege to drive in New Hampshire. However, all states are parties to an interstate compact that requires them to suspend the license of any person who has lost their privilege to drive in another state. Therefore, your home state will likely suspend your license and you will not be eligible for reinstatement until your privilege to drive in New Hampshire is restored. Your home state may also choose to impose an additional period of suspension or revocation for a New Hampshire DWI conviction or ALS suspension. You should consult with an attorney from your home state.
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