different breathalizer results

New Hampshire

I was arrested after blowing a .102 in a breathalizer test. Then back at the station i was given the "real" breathalier, and blew a .08, .08, .07. (.08 being the legal limit in this state) Since I was told they take the average of the three, do i have a case i plead not guilty?

[CdwJava]

You really haven't provided any information to demonstrate a defense. A breathalyzer test is still valid so long as the difference between the tests is within .02 BAC. So a blow of .08, .08, .07 is not going to be grounds for a dismissal.

You will need to come up with another defense.

- Carl

[cmorris]

CdwJava, can you clarify something?

I thought that even if someone was under the legal limit, s/he could be cited for DUI if it appeared that s/he was impaired (e.g., weaving)?

[CdwJava]

Originally Posted by cmorris

CdwJava, can you clarify something?

I thought that even if someone was under the legal limit, s/he could be cited for DUI if it appeared that s/he was impaired (e.g., weaving)?

It depends on the laws in that state, but I believe every state has laws that cover driving while impaired even if it is below the per se limit.

In CA driving with a BAC of greater than .08 would be a seperate violation from driving under the influence at a level LESS than .08.

When beneath the per se limit, the state would have to demonstrate some manner of impairment. At greater than the limit, it is pretty much a given that the subject was legally DUI.

- Carl

[cmorris]

Thank you!

While I am not familiar with New Hampshire law, I assume with such low readings, you have an excellent chance of beating this. Call an attorney in YOUR area. He/she can give you some great information regarding machine calibration and such. Did they take blood?

[CdwJava]

.08 is "low"? I don't know the laws in NH either, but in CA if there is a sufficiently poor performance on the FSTs or impaired driving, it is sufficient to convict for DUI.

NH may have another term for an under .08 DUI, but it is not "low". It only means that the 'per se' charge is iffy.

- Carl

If the law says you are dui at .08, and you are hovering around that, then, YES..it is low. You must have been lucky as an officer to not know what I am talking about. Most offenders are above the .14 mark, statistically speaking.

Back to the questioner, if it is true that your state takes an average of the 3 tests, you ARE under .08. It's a .07666, which is under the legal limit for your state. CHECK with a local lawyer. You have a good chance at beating this.

[CdwJava]

I guess its all in your experience, then. While the average may be .14, saying that they have a great chance of beating the charge without knowing the driving or FST performance is a little premature, don't ya think?

I've never lost one - above OR below .08.

Certainly, consult an attorney ... but let us not assume that being at or below .08 is a good win for the defendant.
- Carl

[BelizeBreeze]

In order to be convicted for DWI the prosecution must prove that you were impaired at the time of driving. To do this, you will most likely be asked to submit to a intoxilizer or field sobriety test, and answer questions about your drinking. The refusal to submit to the intoxilizer will result in a 6 month suspension.

TITLE 21 Motor Vehicles CHAPTER 265 Rules Of The Road Serious Traffic Offenses SECTION 265:82

§ 265:82 Driving Under Influence of Drugs or Liquor; Driving with Excess Alcohol Concentration. * I. No person shall drive or attempt to drive a vehicle upon any way:

(a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or

(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.




1st DUI
JAIL TIME REQUIRED N/A on first offense, Only an "Aggravated DWI" (BAC of .16 or more, or other "aggravating factors" can trigger jail time of up to one year.
MONETARY FINES Minimum $350.00+ $70 Penalty assessment to maximum $2000 plus $400 penalty assessment ; Aggravated offense (BAC of .16 or other aggravating factor) Minimum $500 + $100 penalty assessment
LICENSE SUSPENSION 21 & over drivers: 90 days to 2 years; no early "work permits/hardship/Cinderella licenses"; Under-21 drivers with BAC .02 or more: 180 days
"Aggravated"DWI (BAC of .16 or other aggravating factor): 1 to 2 year loss of license

DRIVING SCHOOL (RISK REDUCTION) Mandated for all drivers before a new license to drive (or permission for a non-resident to operate a car in New Hampshire) can ever be re-established. If client had BAC at .15 or over aftercare is likely before the program issues completion to the DMV
COMMUNITY SERVICE N/A
PROBATION N/A

2nd DUI
JAIL TIME REQUIRED Up to one year; minimum 3 days plus 7 day inpatient 2nd offender treatment program
MONETARY FINES Minimum $500 + $100 penalty assessment/Maximum $2000 plus $400 penalty assessment
LICENSE SUSPENSION 3 years
DRIVING SCHOOL (RISK REDUCTION) 7 day inpatient program required
COMMUNITY SERVICE N/A
PROBATION N/A

3rd DUI
JAIL TIME REQUIRED Up to 1 year
MONETARY FINES Range between $500 and $2000 plus penalty assessments of 20% of fine
LICENSE SUSPENSION 7 years
DRIVING SCHOOL (RISK REDUCTION) 30 day in patient treatment program
COMMUNITY SERVICE N/A
PROBATION N/A

[AHA]

When it comes to alcohol and driving, anything above 0.00 is too much, so saying 0.08 is LOW is just plain idiotic!!!!!

[cmorris]

Originally Posted by Johnny_Bingo

Back to the questioner, if it is true that your state takes an average of the 3 tests, you ARE under .08. It's a .07666

Depends on if you take the mean, median or mode.

You stated the mean, which is under .08. However, the median AND mode are both .08.

Call a local lawyer...you have an INCREDIBLE shot. It might be worth the $3500 to get this squared. DO NOT get drawn into this horse-**** "you're up a creek mentality" on this bogus website. And one more thing..as a VERY successful attorney, I tell you, "NEVER..NEVER EVER trust the legal advice of a cop", i.e. Carl. CALL A LAWYER..YOU ARE NOT GULITY. Good luck.

[AHA]

Originally Posted by Johnny_Bingo

Call a local lawyer...you have an INCREDIBLE shot. It might be worth the $3500 to get this squared. DO NOT get drawn into this horse-**** "you're up a creek mentality" on this bogus website. And one more thing..as a VERY successful attorney, I tell you, "NEVER..NEVER EVER trust the legal advice of a cop", i.e. Carl. CALL A LAWYER..YOU ARE NOT GULITY. Good luck.

Amazing how someone who wasn't even there can claim the OP is innocent. Must be a world record, congrats.

[CdwJava]

To be clear - I did suggest he call a lawyer, AND I do not provide "legal advice" ... in fact, nobody here CAN do that - lawyer or not.

In CA it wouldn't be an "incredible shot" ... maybe NH has no prob. with DUI drivers roaming wild and free - I don't know. And, Johnny, I'll bet you don't either.

And to say he is NOT guilty? You base that on ... what? He might not be guilty of a violation of the 'per se' statute, but he could very well be guilty of driving under the influence.

- Carl