What Happens If You Refuse a Breathalyzer in New Hampshire? Implied Consent Laws

When pulled over for suspected drunk driving in Nashua, Manchester, or Portsmouth, the decision to blow into a breathalyzer is one of the most critical choices a driver will make. Many drivers believe that by refusing the test, they are depriving the police of evidence and avoiding a DWI conviction. While refusing a test does remove precise Blood Alcohol Concentration (BAC) data from the equation, New Hampshire law imposes strict penalties for doing so. Understanding the state's Implied Consent framework is vital. To effectively navigate the fallout of a refusal, we strongly recommend searching our directory to hire an experienced local lawyer.

Refusal Consequences: Administrative License Suspension (ALS)

By simply holding a New Hampshire driver's license and driving on public roads, you have already agreed to submit to chemical testing if an officer has reasonable grounds to suspect you are impaired. This is codified in N.H. Rev. Stat. Ann. § 265-A:4, the state's Implied Consent Law.

If you refuse to take a post-arrest breath, blood, or urine test, you will face immediate administrative consequences under N.H. Rev. Stat. Ann. § 265-A:14. For a first-time refusal with no prior DWI convictions on your record, your license will be automatically suspended for 180 days. If you have a prior DWI or a prior refusal on your record, the suspension jumps to 2 years. This administrative suspension takes effect entirely independently of your criminal court case. Even if the criminal DWI charges are eventually dropped or you are found not guilty, the 180-day ALS suspension for the refusal will still be enforced unless you win an administrative appeal.

Can the State Use Your Refusal Against You in Criminal Court?

Yes. Refusing the test does not guarantee you will avoid a DWI conviction. In fact, prosecutors frequently use a driver's refusal to submit to testing as 'consciousness of guilt.' The legal precedent set in State v. Cormier, 127 N.H. 253 (NH Supreme Court 1985) firmly established that admitting evidence of a driver's refusal to take a breathalyzer test does not violate the constitutional privilege against self-incrimination.

At trial, the prosecutor will argue to the judge or jury that you refused the test because you knew you would fail. Furthermore, the State can still secure a DWI conviction based solely on the officer's observations-such as slurred speech, the smell of alcohol, erratic driving, and your performance on the roadside Standardized Field Sobriety Tests (SFSTs).

How to Appeal an ALS Hearing Within 30 Days

You have a very narrow window to protect your driving privileges. From the date of your arrest, you have exactly 30 days to request an Administrative License Suspension hearing. If you miss this deadline, your right to appeal is permanently waived, and the suspension takes full effect.

Step-by-Step Process in New Hampshire

Here is exactly how the process unfolds if you refuse a chemical test in New Hampshire.

Step 1: Submit the Hearing Request

Following a refusal, the officer will serve you with Form DSMV 426, New Hampshire, Division of Motor Vehicles, Administrative License Suspension Rights, which functions as a notice of suspension and a 30-day temporary driving permit. Your defense lawyer must then submit a formal written hearing request pursuant to N.H. Admin. Code Saf-C 2804.01 to the New Hampshire Department of Safety Bureau of Hearings, Concord.

Step 2: The Administrative Hearing

At the ALS hearing, an examiner from the DMV will determine if the suspension should stand. Your lawyer will cross-examine the arresting officer. The defense will typically focus on whether the officer had a valid, constitutional reason to pull you over, and whether you were properly advised of your Implied Consent rights before you refused.

Step 3: Criminal Court Arraignment

Separate from the DMV, you must appear at a local court, such as the 10th Circuit District Division, Portsmouth or the 9th Circuit District Division, Manchester, for your criminal arraignment. You will enter a plea regarding the underlying DWI charge.

Step 4: Negotiations and Trial Preparation

Because there is no BAC number, your attorney will scrutinize the dashcam footage to challenge the officer's visual claims of impairment. If a plea agreement cannot be reached, the case will proceed to a trial where your lawyer will argue that the State cannot prove impairment beyond a reasonable doubt.

How Much Does it Cost in New Hampshire?

The costs associated with a refusal and a subsequent DWI charge accumulate rapidly.

How Long Does the Process Take?

The DMV must hold your ALS hearing within a few weeks of receiving your request. The actual administrative suspension lasts for 180 days. However, the criminal DWI case can take 3 to 6 months to resolve. If you are convicted of the DWI in criminal court, under N.H. Rev. Stat. Ann. § 265-A:14, II and N.H. Rev. Stat. Ann. § 265-A:32, the court-ordered license suspension cannot run concurrently with the ALS refusal suspension and must run consecutively, giving the judge no discretion to combine them.

Frequently Asked Questions (FAQ)