What is an ALS Suspension?
ALS is an acronym for administrative license suspension.
A driver charged with DWI in New Hampshire may be subject to an ALS suspension for:
- Refusing to submit to a post-arrest sobriety test or alcohol concentration test.
- Submitting to a post-arrest alcohol concentration test that discloses an alcohol concentration of greater than 0.08, or 0.02 if under the age of twenty-one (21).
The ALS is for an automatic six (6) months if the driver has no prior DWI's or post-arrest test refusals. The ALS is for an automatic two (2) years if the driver has a prior DWI or a prior post-arrest test refusal. If the ALS is for a refusal it runs consecutive to (e.g., in addition to) any court imposed suspension or revocation. If the ALS is for an alcohol concentration of 0.08 or greater, it will run concurrent (at the same time) with the court imposed revocation. Thus, the combined DWI/ALS minimum actual loss of license for First Offense DWI and refusing to submit to a post-arrest alcohol concentration test is a minimum of nine (9) months. If there was a prior refusal or a prior DWI on the driver's record, the combined minimum actual loss of license is twenty-seven (27) months.
The combined DWI/ALS minimum actual loss of license for first offense DWI and taking a post-arrest test that reveals an alcohol concentration of 0.08 or greater is six (6) months. If there was a prior refusal or a prior DWI on the driver's record, the combined minimum actual loss of license is two (2) years.
The ALS will be automatic unless the driver requests an administrative hearing within thirty (30) days of arrest, or from receipt of the blood test results. Therefore, any driver with grounds to challenge the ALS should request a hearing and request the presence of the relevant officers immediately.
What are the penalties if I take a post-arrest breath test which reveals an alcohol concentration of 0.08 or greater?
If the police officer followed the proper procedure, you will be subject to an ALS suspension that will be concurrent (e.g., simultaneous) with any period of revocation imposed by the court. The length of the ALS will be six (6) months if you have no prior DWI's or test refusals. It will be two (2) years if you have either a prior DWI or a prior post-arrest test refusal.
The ALS will be vacated (if you request a hearing) if the police officer failed to follow proper procedure which is consistent with his/her training. Additionally, the ALS should be vacated if:
- The intoxilyzer was not certified;
- There were maintenance or reliability problems with the intoxilyzer;
- The intoxilyzer operator was not certified; or
- The test result was 0.08 (because a result of less than 0.08 would be within the machine's margin of error).
Additionally, New Hampshire law allows the prosecutor to charge a driver with “per se DWI” for driving with an alcohol concentration of 0.08 or greater. Since most intoxilyzer tests are taken about an hour after the initial stop, in close cases it is necessary to consider:
- The machine's margin of error.
- The likely rate of alcohol absorption and elimination to determine whether there is a good defense to a per se complaint.