Guilty if You Cooperate? Blowing Into the Breath Test Hose Can Get You Convicted, Whether You're Drunk or Sober by Mark Stevens 603-893-0074

New Hampshire has a DWI law that prohibits you from driving while intoxicated. No one encourages any one to drive drunk, so a law that prohibits drunk driving makes logical sense. But that's only half of the law. The law also includes a "per se" provision that prohibits people from driving with a breath or blood alcohol concentration of .08 or higher, or a .02 or higher of the driver is under age 21. The .08 and the .02 numbers have absolutely nothing to do with whether the driver is drunk or not; in fact that's why the numbers were created, to make it easy for the state to prosecute people whether they're drunk or not. Few drivers under the age of 21 are drunk at a .02 level, not even close. It's just an arbitrary number with origins in politics, not science.

Upon arrest for DWI, the driver is faced with a difficult decision: whether to blow into an old box, placing his faith, freedom and right to drive in the precision and accuracy of an old box with a rubber hose attached to it. Or the driver could refuse and face a potential license suspension. If the driver asks the police officer any questions about the choice, the police are trained to say that they can't help them, or they refer the driver to a single-spaced, 8 point font explanation that doesn't really tell the driver what to do even if they manage to read it. Here is the law:

RSA 265-A:2 (2008)

265-A:2 Driving or Operating Under Influence of Drugs or Liquor; Driving or Operating With Excess Alcohol Concentration.

I. No person shall drive or attempt to drive a vehicle upon any way or operate or attempt to operate an OHRV:

(a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or

(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.

II. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug or drugs, or while such person has an alcohol concentration of 0.08 or more or in the case of persons under the age of 21, 0.02 or more.

So, if you get arrested for DWI in New Hampshire the state can prove your guilt one of two ways: either that you're drunk or that the old gray box said your breath alcohol concentration was over the legal number, whether you're drunk or not. If you blow, the state gets two chances to prove you guilty. If you refuse, they get only one chance, and they have to prove beyond a reasonable doubt that you were actually intoxicated. If you blow, you're guilty if you cooperate under this legislative scheme. The state will throw both charges against the wall and see if one can stick.

Once the driver makes the ill-fated decision to blow, the police will add a second DWI charge against the driver: the DWI "per se charge". This is Latin for "by itself". Choose wisely whether you will make it easier for the state to convict you when you decided whether to blow into the breath testing hose.

Have a safe weekend,

Mark Stevens
5 Manor Parkway
Salem, NH 03079


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