The question which often arises when people talk about DWI arrests or police roadside encounters is: Should I take a breath test? The safest and most common answer most defense attorneys will utter is a resounding, No! However, it is important to understand that if you refuse to take a chemical test, your privilege to drive in New Hampshire will automatically be suspended for six months thirty days after your arrest for an ALS violation.
Furthermore, taking a breath test requires the officer who supervises the test to comply with various administrative procedures before the test can be considered admissible evidence during a trial. During my experience as a criminal defense attorney, I have seen a multitude of tests excluded from trial. Quite often, the State is unable to lay a proper foundation that the officer complied with his/her training while administering the breath test. Also, there are various physical conditions which may interfere with the accuracy of the instrument. Further, at times the instrument is not properly certified or calibrated.
In January of 2017, New Hampshire law dramatically changed. Prior to 2017, every time a person submitted to a breath test, the arresting agency was obligated to provide a sample of breath contained in independent capture tubes. These tubes were sealed in a gray tamper proof bag which could be analyzed at an independent laboratory. The purpose of the independent analysis was to verify the accuracy of the initial test. Now, the State is no longer required to provide an independent breath sample. Instead, the arresting agency is required to allow the defendant to obtain an independent blood sample by offering transportation to a local emergency room. The constitutionality of this new procedure has not been tested, and at some point in the not too distant future, I am sure a case will reach the New Hampshire Supreme Court.
In the unfortunate event that you find yourself in this situation, when considering your options about whether to submit to a breath test or other chemical test, ask the officer if you can call a lawyer. Some departments will provide you with that courtesy. We are available twenty four hours a day, and I have answered many calls during the early morning hours. You will need objective and focused advice during a time which you will likely be very emotional and afraid. Do not hesitate to contact us at 603-880-6100.