Drunk Driving in NH – Over the Limit. Under Arrest. Don’t Drink and Drive.

The television commercials, newspaper articles, radio spots and even highway signs are everywhere reminding motorists not to drink and drive. Over the limit. Under arrest.  It’s pretty clear. There are other slogans as well: How about, Drink. Drive. Go to Jail.  These slogans make a good point-drinking and driving will not be tolerated in NH and will get you arrested.

Frankly, I give the same advice to everyone I know; don’t drink and drive. You are putting yourself and others at risk if you are driving impaired. But as a NH DWI defense attorney, it’s important to me that arrests stem from probable cause and convictions are based upon proof beyond a reasonable doubt.  Quippy slogans aside, the State must prove its allegations of impairment before a conviction can result. And in NH, despite the slogan-Over the limit, Under arrest, you are usually arrested BEFORE the police determine if you are over the legal limit. Let me try to explain…

The typical DWI stop and arrest scenario goes like this:  You are pulled over for speeding, crossing the white fog line, for swerving or some other minor traffic infraction.  The officer says he smells alcohol on your breath, and asks you to get out of your car to make certain that you are fit to drive.  He says something like: “I would like you to do some tests to make sure you are O.K. to drive.”  At this point, you will be given rapid fire instruction on how to perform Standardized Field Sobriety tests.  There is no chance to take a practice test or study up on the subject, like there was in school. It’s pass or fail, on the spot.  And if the officer believes that you failed, you are immediately placed under arrest.

So where does this over the limit, under arrest slogan that we hear so much about, come in?  You are already in handcuffs and haven’t taken any breath tests.  After you are arrested, you will be placed into the back of the cramped police cruiser and transported to the police department or county jail for processing. You will be booked and taken into the “intoxilyzer room” and asked to give a breath sample.  It is usually only at this point that you are given the opportunity to provide a sample of your breath or blood… So how does Over the limit, Under arrest even come into play?? I’d say, it doesn’t.  It’s just a catchy slogan designed to make the point, don’t drink and drive. But, it is not an accurate depiction of the DWI arrest process.

And if you decide to submit to the breath test and blow, even under the legal limit—well you are already under arrest. And guess what, now you must be under the influence of drugs as well as alcohol, and that’s why the breath test wasn’t over the legal limit. Don’t count on: Under the Limit—Allowed to go Free. It isn’t a slogan or practice I have seen.

If you are arrested for DWI, we are here to help.

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