Should I have taken the test?
People often get to the DUI lawyer’s office with a question still unresolved: “Should I have submitted to the breath test at the police department?” It is important to note that, if we had the opportunity to go back in time and adjust our decisions, there are clearly some other decisions that obviously would have been adjusted if you are at the DWI lawyer’s office for consultation.
Disclaimer: All cases are fact specific. Nobody should make important decisions about their future based on a review of any materials generally available on the internet. Consult with your attorney before making legal decisions. DIY is not appropriate for legal decisions. Get a no cost phone consultation with an experience NH DUI attorney at (603) 589-8015.
YOU HAVE A RIGHT TO REFUSE ALL TESTS
If a person under arrest for any violation DUI laws, refuses to submit to physical tests or tests of blood, urine, or breath requested by a law enforcement officer, then the law enforcement officer must respect that refusal. Keep in mind that it is best to be polite and respectful even when insisting that your rights be honored.
PENALTIES FOR REFUSAL OF ANY TESTING ARE SEVERE
However, if you refuse ANY of the tests, the Department of Safety will suspend your license to drive in New Hampshire for 6 months. That is for the first refusal with no prior DUI convictions. If there is a prior DUI conviction or refusal, that 6 month suspension grows to 2 years. This ALS suspension is often referred to as an “automatic” license suspension, but your attorney has some ways to challenge the ALS.
If you delay the request for a hearing, your license will be suspended. The Bureau of Hearings interprets deadlines strictly for drivers. Although you have 30 days to request an ALS hearing, the Bureau of Hearings has 20 days to schedule the hearing. That means you have 10 days to request a hearing to avoid a temporary license loss even if you prevail at the ALS hearing. If you go beyond 30 days, it may become very difficult or impossible to get a hearing on the ALS suspension. Your New Hampshire DWI attorney should get the ALS request filed quickly.
The 6 month or 2 year Administrative License Suspension (ALS) is separate from and consecutive to any other license suspension. So, the ALS suspension gets tacked on to the end of any suspension that the court may impose for the underlying NH DUI conviction. The stakes for refusal of any drug/alcohol test related to motor vehicle operation (including boat/OHRV) are high. You should have a very good reason for refusing any test.
WHEN TO DECIDE WHETHER TO REFUSE TESTING
From the moment that you first come to the attention of a law enforcement officer who suspects that you are operating under the influence of drugs or alcohol, the officer is gathering evidence against you. S/he will note every single motion, word, or indication, however slight, that may support a conclusion that your ability to drive perfectly may be impaired to some degree. Every word and action an officer sees, hears, or smells will be colored by his/her conclusion that the driver is impaired.
If an officer begins field sobriety testing, you are probably going to be arrested. Few officers will waste time conducting field sobriety testing if they have not already concluded that you are under the influence of something. No matter how well you think you can do on field sobriety tests, you are wrong. Most people do not know how the tests work and they are almost entirely subjective.
That means that the officer, who has already concluded that you are intoxicated, will be the one who judges how badly you perform the field sobriety tests. You cannot pass these tests. Countless people come into my office and say: “I did really well on the roadside tests. Then the officer arrested me anyway.” These tests are often referred to by DUI attorneys as “roadside gymnastics”. You may have forgotten about the injuries that you have gotten used to over the years, but they will show up in the field sobriety tests. Head injuries, vision issues, knee injuries, ankle injuries, hip injuries, cramps, high heels, stiff neck, allergies, and a long day at the office will all be interpreted as indicators of intoxication.
The officer is gathering evidence against you from the moment s/he notices your vehicle. The moment you notice the officer is the best time to decide whether to submit to ANY tests. If you submit to some tests, but refuse others, you have defeated the advantage of refusal while still incurring the penalties. It’s an all-or-nothing decision. So, you should decide whether to take any tests the moment you notice that you have come to the attention of law enforcement.
SHOULD I REFUSE TESTING?
This is a good time to re-read the disclaimer.
Refusing testing is denying evidence. Once you have refused testing, there will be no evidence of your blood alcohol level or the presence or level of drugs. Therefore, it is only sensible to refuse testing under circumstances where the evidence of drug/alcohol level will exceed the minimum levels.
If your blood alcohol level is below the legal limit and no drugs will show in a blood screen, then the testing will provide evidence that the matter should go no further. This decision requires an HONEST self-assessment. Your blood alcohol level depends on several factors including body weight, what/when you have eaten, and when/how much alcohol you have consumed. People often underestimate these factors when thinking back over the past several hours. Tolerance to drugs or alcohol may make you feel sober, but it will not make the numbers lower.
In this analysis, people often discount their prescriptions. Many prescription drugs impact your ability to operate a motor vehicle. There may be a strong argument that a low blood alcohol level combined with some prescription drugs will impair your ability to safely operate a motor vehicle.
If your blood alcohol level is well below the legal limit and you have not used any drugs recently, then you should submit to all of the testing. Not only will you avoid the penalties for refusal, you will preserve the evidence that you were not impaired. That result often brings the whole matter to a close.
Call for a free consultation with Attorney Sweeney. There is no substitute for an experienced DUI attorney. Call (603) 589-8015.