Can New Hampshire Police Require Me To Take A Breath Test?

Getting pulled over for a traffic stop can set your heart pounding. Nobody wants to end up spending the night in jail or dealing with the legal nightmare of a driving under the influence (DUI) charge. Given that a conviction for DUI could cost you your freedom and your license, among other harsh consequences, it’s important to know your rights – and exercise them.

Specifically, it’s important to understand your rights and options with regard to breath tests.

What Exactly Is A Breath Test?

There is a lot of confusion around what exactly a breath test is. Police rely on preliminary breath tests (PBTs) during traffic stops to establish the probable cause that they need to make an arrest. They use a small battery-operated portable device to get a reading on your blood alcohol content (BAC). However, these devices are notoriously inaccurate – so much so that the results can’t be used in court to prove that you were intoxicated.

An Intoxilyzer is a more reliable breath test conducted with a larger machine at the police station. The results are admissible in court.

Do You Have To Take A Preliminary Breath Test?

No. Under New Hampshire law, you aren’t required to submit to a PBT or field sobriety tests on the roadside. You have the right to refuse without any consequences. 

If you submit to the PBT or field sobriety testing, you may be voluntarily giving the police the grounds they need to arrest you. The best course of action, if you’ve had anything to drink at all, is to politely decline.

What About A Breathalyzer (Intoxilyzer) Test?

If the police have probable cause to suspect that you’re intoxicated, they can arrest you and bring you to the police station for chemical testing. At this point – once they have arrested you – you will face automatic license suspension for refusing the Intoxilyzer or blood test at the police station. The suspension will be six months for an initial refusal or two years for a repeat refusal. 

If you refuse the test, you may still face criminal DUI charges if the police have enough evidence against you. Your refusal can also be used as evidence against you. 

Keep in mind that if you do take the Intoxilyzer test and register above .08% BAC, you will have given the prosecutors powerful evidence to use against you in a DUI case. You will still face a driver’s license suspension along with the other penalties of a DUI conviction. 

The takeaway is that, if there is a reasonable chance that you might fail the Intoxilyzer test, submitting to it could result in harsher consequences than if you refuse to take it.

You Have Other Rights, Too

Many people end up incriminating themselves by giving away too much information during an encounter with law enforcement. They try to talk themselves out of trouble and, in doing so, often land themselves in greater trouble. It’s wise to say as little as possible, especially about whether or how much you’ve been drinking.

If you are facing an administrative license suspension for refusal to submit to breath/blood testing, you have the right to challenge the suspension. However, you only have 30 days to do so. An attorney can defend you against the suspension and potentially help you get a restricted license.

Likewise, if you are facing DUI charges, enlisting the help of a skilled defense attorney is critical.