Much ado has recently been made about the number of New Hampshire drivers arrested for DWI who choose not to blow into breath testing gadgets after their DWI arrests. It has been noted that 81% of drivers arrested for New Hampshire DWIs refuse to blow into the police breath gadgets. New Hampshire easily outdistanced second place Massachusetts, where only a little over 40% of citizens refused to blow into the gadgets after DWI arrests last year. As the powers that be scratch their heads and ask why, consider a few possible explanations:
1. RSA 265-A:3, New Hampshire's "Aggravated DWI" statute. In January 2007 this weird law went into effect. The "aggravated DWI" statute requires a mandatory jail sentence for up to a year based entirely on the alleged "results" of a breath test. Therefore the citizen who cooperates and blows goes to jail based entirely on his cooperation. Make sense? Apparently not to all or some of the 81% who said "no" to the breath test gadgets last year. If a driver blows into the breath hose at the police station, and if the breath box says that the driver's "result" is a .16 or higher, the driver gets packed off to jail; if the same driver refuses to blow into the hose, the driver cannot go to jail on a first DWI offense. Therefore, if a citizen opts to blow into the breath gadet, he or she is risking a mandatory jail sentence, period. It doesn't matter whether the driver has a prior record, what the driver does for work, or how cooperative he was on the night of his arrest. Due to the mandatory minimum sentencing requirements of this wooden law, drivers risk incarceration based on their cooperation.
2. Distrust of the breath testing gadgets. Many drivers simply do not want to trust their freedom or their driving license to an old breath testing gadget in a police station. The machines are based on Sputnik-era technology and have a margin of error. In New Hampshire, the citizen who agrees to blow will have to blow twice. As long as the machine says the two "results" agree within .02 of each other, the test is considered a "good test". So if the gadget says the citizen blows a .08 and then a .10, the machine will print out a "result" of .08. Would you accept that range of potential error from a brain surgeon or an airline pilot? That 25%/.02 range of "precision" is close enough for government work, but likely concerns most drivers enough to cause them to refuse.
3. Scepticism about why they were arrested at all. Many citizens arrested for DWI are simply not drunk. After they are required to perform a series of sidewalk gymnastics they are arrested. Refusal to submit to a breath test does not necessarily mean that the driver is "conscious of his guilt", as the governemnt usually argues. Rather, the refusal to blow into an old breath testing box is just as likely caused by consciousness of the fallibility of the government. Most DWI arrests in New Hampshire are not videotaped, which heightens the arrested citizen's concern about getting a fair shake. Video players are truth boxes. They cannot change, add or subtract from the truth. Yet the Truth Boxes are rarely employed in New Hampshire DWI cases.
4. Denial of access to a lawyer when making the decision whether to blow or not. During the recitation of the implied consent rights required by New Hampshire law, the citizen is usually denied access to counsel even upon request. So if the driver asks the police at the end of the reading of his implied consent rights whether he can speak to a lawyer about his decision, he is usually denied access to calling a lawyer. Few things will make a sober citizen less likely to cooperate than denying them the opportunity to speak to a lawyer before making such an important decision.
So there is a law that mandates incarceration based on cooperation, usually denial of access to counsel during the decision making process, a margin of error in the breath testing gadgets, and understandable scepticism among drivers with the entire DWI arrest process due to the refusal of most police departments to videotape DWI arrests. Does the high number of drivers who make the rational choice not to blow into the breath gadgets really come as any surprise at all?
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Have a good weekend,
Mark Stevens
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Barrister Stevens:
ReplyDeleteI am curious as to just how it is that New Hampshire manages to hold the title as Champion of Refusals by such a wide margin. Why do you think that is? It's not simply a matter of people choosing to exercise their right against blowing into the Sputnik era technology I(to use the phrase you've so finely coined). What separates New Hampshire in the fact that its refusal rates are so high? I wonder what would happen if New Hampshire's ALS hearings did not require testimony or the admission of evidence.
- The White Hat
Thank you for your comments Ocean Parker. In addition to the large number of people who simply do not trust the breath gizmos, don't trust the government, and who generally don't believe that they should have ever been arrested at all, when the legislature came up with their "aggravated dwi" sentencing scheme, under which cooperative people who march up to the breath gadet and blow go to jail for up to a year, they criminalized cooperation. In New Hampshire DWI cases, cooperation can lead to incarceration under the "mandatory minimum aggravated DWI law".
ReplyDeleteFeel free to posit any other questions you may have.
Cheers,
Mark Stevens