I am a DUI lawyer. I defend people accused of driving drunk. Whether you are guilty or innocent, if they want to lock you up, it is up to the State to prove their case BEYOND A REASONABLE DOUBT! If you follow the advice in this post, and contact us in the event of an incident, your chances of preserving your driving rights and freedoms will improve. With that said, the BEST way to avoid trouble is to call a cab, order an UBER, or set a designated driver.
We all have that friend who has a “fool proof” way to avoid being charged with a DUI. Not surprisingly that friend is usually ill informed. We can look at the interplay between New Hampshire Laws, and determine what to do, in the following steps:
- Ask the police (politely) why you were stopped This step may seem obvious, but in order to pull you over the officer has to catch you breaking the law, or be able to invoke a relevant exception. Part I, Article 19 of the New Hampshire Constitution reads as follows: “Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.” https://www.nh.gov/constitution/billofrights.htmlIt is important to not confuse the New Hampshire Constitution with the Federal Constitution. Our State Bill of Rights actually provides for more rights than the Federal Constitution when it comes to illegal search and seizure Stopping and detaining an automobile is considered a seizure within the meaning of Article 19 of the New Hampshire Constitution. See State v. Landry. Full case available here.
“To justify the search or seizure of a motor vehicle, if there is no probable cause or reasonable suspicion that a criminal offense is being committed, the State must prove that its conduct significantly advances the public interest in a manner that outweighs the accompanying intrusion on individual rights. It must further prove that no less intrusive means are available to accomplish the State’s goal.” See. State v. Koppel. Full case available here.
So to recap under the New Hampshire Constitution, pulling over a vehicle is a seizure, and can only legally happen under certain circumstances. Unfortunately, traffic laws prohibit a large amount of conduct, so finding a reason for a stop is not too difficult for an officer. If you are pulled over, it is important to determine specifically why you are being pulled over for the stop. If there was no legitimate reason to pull you over in the first place you may be able to keep evidence out of the Court.
It is important to note that this in no way means you should be rude to the officer! Keep your questions courteous and treat the officer with respect throughout the stop.
- Whether to take a Breathalyzer or Other Test – If the officer pulls you over and determines that you may be impaired she may request that you take a Breathalyzer test. It is important to know your rights regarding administrative license suspension before agreeing to do so.Under RSA 265-A, If you refuse to take a breathalyzer, physical test, or test of blood or urine you will lose your license for 180 days. This suspension takes place without court involvement, and is called an administrative license suspension.
Your refusal to take a breathalyzer or other test will result in an automatic loss of license for 180 days whether you are driving impaired or not. There is an administrative process for opposing such a loss, but this is a subject for a different blog post.
The most important thing to know about choosing not to take a test is that the 180 day automatic suspension will run before any suspension imposed by the court. If you take the test and fail (by testing positive for over the legal limit) then the time you have lost your license for the automatic license suspension will count towards any court ordered suspension.
If you are not impaired you should almost always take the tests offered by the officer in order to avoid an unnecessary automatic license suspension.
If you are impaired, you should balance the evidence of that impairment (are you slurring words, were you in an accident or driving erratically, is there open alcohol in the car etc.) with the consequences of failing to take the test.
If there is no evidence of impairment except the officer’s claim that she smells alcohol then it is less likely that you would be convicted of DUI without the breathalyzer evidence.
But; if the evidence of your impairment is clear, then taking the breathalyzer could save you additional time with a lost license. If the conviction on your record, and not the time frame that you lose your license is important to you, then refusal to participate in the test could aid in your defense.
- Ask for the advice of counsel– The law in this area can get complicated. You need to have a DUI lawyer on your side. If you have any questions about what you should do, call an attorney. I am available at 603-DUI-DUI-9 if you have any questions about your rights.