Bartis Law Office, PLLC

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Bartis Law Office, PLLC

In New Hampshire, there is a distinction between DWI (driving while intoxicated) charges and DUI (driving while under the influence) charges. If there is evidence of drugs or alcohol in the driver’s system, then you will be charged with DWI. If there is no evidence of blood, breath or urine tests, then you will be charged under the DUI statute. If you consent to a breath, blood, or urine test and the results show that you have alcohol in your system, then you could be convicted of DWI. If, however, you refuse to consent to a test, then a conviction for DUI can be sought based entirely on the officer’s observations, such as slurred speech or the smell of alcohol. The court would have to find that the elements of the offense have been proven. The penalties for DUI and DWI are the same.

What Typically Happens When A Driver Is Pulled Over And Suspected Of Driving Under The Influence? What Determines Whether The Officers Will Make An Arrest?

In New Hampshire, an officer must have articulable suspicion to pull over a driver, which may be based on an observation of weaving, crossing the center line, speeding, driving too slowly, or any other indication that the driver is distracted, having a medical episode, is impaired or is intoxicated.

Once an officer stops a driver, they will approach the driver and confirm their identity and registration of the vehicle. The officer will conduct a factual collection and analysis, which means they will be looking for indicators of impaired driving (e.g. bloodshot and glassy eyes, slurred speech, poor motor skills, the odor of an alcohol beverage, the odor of marijuana, open containers in the cabin compartment, prescription pills in the cab of the car, etc.) and asking a series of questions. When being questioned, the driver might provide explanations which dispel the officer’s suspicion. For example, if the driver is a waiter who works late hours, they might explain that they haven’t slept and spilled alcohol on themselves during the shift, but did not consume any alcohol.

If the officer cannot dispel their suspicions at this point, then they will request that the driver step out of the vehicle, which is completely voluntary in the state of New Hampshire. In addition, consenting to roadside field sobriety tests is voluntary. If the driver chooses to step out of the car and engage in the field sobriety tests, then everything they say and do will be used against them in court. Contrary to popular belief, an officer does not have to read the Miranda rights during this stage in the process.

In many cases, roadside field sobriety tests are conducted amid interference from bright headlights, weather conditions, uneven surfaces, poorly marked lines on the road, etc. Further, the skills required to pass these tests are difficult for many people even under the best circumstances. Based on the driver’s performance on the field sobriety tests and other observations, the officer will make a determination as to whether or not the driver is impaired. If the conclusion is that the driver is not impaired, then the driver will be free to continue on their way; if the conclusion is that the driver is impaired, then they will be arrested.

The standard field sobriety tests are set by New Hampshire police standards and have been approved by the New Hampshire court system. If an officer deviates from the protocol or fails to follow procedure, then the test will be inadmissible and therefore excluded from evidence. Every officer in New Hampshire is trained to conduct three tests: the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-legged-stand. During a standard stop, all three tests are performed.

During the HGN test, the officer will hold a pen a set distance from the driver’s nose while moving it to the left and right. The driver will be asked to follow the pen with their eyes without moving their head. During this test, the officer will be looking for involuntary jerking of the eyes, which is referred to as nystagmus. Nystagmus is commonly observed in people who have alcohol or other intoxicating substances in their system.

During the walk-and-turn test, the driver will be asked to walk from point A to point B on a line. Deleted. The point of the test is to observe the driver walk in heel-to-toe fashion for the desired number of steps before making a U-turn and walking back to the officer. Points are lost for failing to follow directions, stepping off the line, losing balance, or using the arms to help maintain balance.

The final test is the one-legged-stand, which requires the driver to remain on one foot while elevating the other leg a set distance off the ground and keeping their arms at their sides. Points are lost for putting the foot down, using the arms for balance, failing to count properly, and failing to complete the test as described by the officer.

If the driver is determined to have failed a test, then the officer will use that as additional evidence to conduct an arrest. The results of these tests will be added to the police report and are admissible in court.

What Is The Difference Between The Roadside Breath Test And A Breathalyzer At The Police Station?

The Intoxilyzer at the police station is calibrated and can only be operated in accordance with a set protocol. The majority of police departments in New Hampshire do not use what’s known as a portable breath test (PBT) machine, but some do. PBT machines are about the size of a pager and have a straw-like feature through which the subject breathes in order to provide a breath sample. This allows officers to obtain a roadside determination of the alcohol content in the driver’s system.

Defense attorneys must always question the reliability of these machines, which depends on when they were last cleaned, whether they were properly calibrated, and how they were used. The PBT machine result is only one piece of evidence to determine intoxication. If a police department has a policy which dictates that enough information can be obtained through observations of the driver while in their car and/or during the field sobriety tests, then the portable breath test will not be used.

If arrested roadside, the individual will be transported to the station or appropriate department to undergo the Intoxilyzer test. A sample breath tube is provided through the system to “cleanse the system” before the arrested individual provides two breath samples. The machine prints the report of the subject’s blood alcohol content. The individual will be given copies of the result or test tubes that contain samples of their breath so that they can have those samples independently evaluated at a lab of their own choosing, so long as they pay the cost.

For more information on DUI Cases, a personalized case evaluation is your next best step. Get the information and legal answers you are seeking by calling (603) 267-4436 today.

Robert Bartis, Esq.

Contact For A Personalized Case Evaluation
(603) 267-4436