What Happens If I Refuse To Blow, Or If I Blow Over?

One of the most common questions people ask us is, “what happens if I refuse to blow when a police officer who is investigating a possible DWI asks me?” The short answer is, you will likely lose your privilege to drive regardless of the outcome of the DWI charge in Court.

Every State has some version of an implied consent law. In New Hampshire the law is codified in RSA 265-A:4. This statute essentially says that if you drive a vehicle on a way (or OHRV or boat) within the State you have impliedly consented to taking physical tests, breath tests and blood tests if a police officer, who has reason to believe you might have been under the influence when you were operating, asks you to take one.

If an officer asks you to take one of these tests and you refuse you will be subject to a loss of driving privileges. This is called an “administrative license suspension,” or “ALS.” You will also be subject to an ALS if you take a test that demonstrates a blood alcohol content (“BAC”) of over a .08 if you are an adult (.02 if you are a minor). In the first instance the period of the ALS will be 6 months and if you have a prior within 10 years it will be 2 years. This is in addition to what the Court might impose if you are convicted of the DWI or DUI offense.

When you get to trial on your DWI or DUI the Court may draw an inference that if you refused to take one or more of the tests, you likely refused because you wanted to hide how intoxicated you were at the time you were operating. This is a rebuttable presumption, but it is evidence of impairment.

You have a right to a hearing to challenge the ALS, but the request must be made in writing to the Department of Motor Vehicles within 30 days of the day of your arrest. If you fail to make this request the ALS will be imposed summarily and you will not be able to challenge it. Also, the burden of proof for an ALS is lower than the burden of proof required at trial. The hearings are generally held at the DMV in front of a hearings examiner rather than in court before a judge. Finally, if you have an ALS imposed based on a refusal the ALS will run consecutively to any loss of driving privileges imposed by the Court.

Cohen & Winters frequently represent people accused of DWI and DUI. We always file a request for an ALS hearing on behalf of our clients. Given the importance of your driving privileges it pays to have competent representation from start to finish for one of these cases.

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