DUI charge in NH. Need help!

[sd1976]

What is the name of your state? NH

Scenario:

Day July 14th.

Had a wedding to attend in Humarock MA for a friend.
My wife's 19 yr old cousin agreed to watch our
two children while we attended.

We traded vehicles as our SUV was easier to transport
children in.

The wedding was at 2:30 with a reception at 4:00PM.

On the way to the wedding, we picked up a friend
in Somersworth and drove to the wedding.
After the wedding, we drove about 20 miles south to a
restaurant where the reception function was being
held. While eating dinner, Both my wife and I each
ordered two drinks starting at 4:30 (her, two captain
Morgan and diet coke, me, two bloody Mary's made with
Vodka). We were finished with our drinks by 6:00 and
ate dessert / drank coffee until 9:00PM. Our friend
consumed about 6 drinks while at the reception.

My wife, our friend and myself left the wedding to head
back in the direction of home (Rochester NH). We got
hungry and stopped for dinner outside of Boston at a
Chinese food restaurant. We arrived at 10:30PM,
ordered dinner, ate, watched people perform Karaoke
and left at about 12:30 PM. During this time, my wife
and I each ordered one drink (captain Morgan and diet
coke), although we did not drink them due to the soda
being flat. Our friend ordered and consumed 5 or
6 mixed drinks during our two hour stay at the
restaurant.

We left the restaurant at 12:30 AM and although I was
exhausted from the long day, I was absolutely clear
headed and not at all intoxicated. It was a long drive and we
arrived in Somersworth NH at about 2:15 AM. Our friend
was heavily intoxicated during the car ride home.

Just dropped off our friend at her house in Somersworth
NH at approximately 2:15 AM, went back up High street,
was going to take a left onto 236 but my wife
mentioned that it would be faster to go an alternate route.
I did not come to a complete stop, the light was
green, there were no other cars behind or in front of
me, so I turned off my directional and safely
continued through the intersection.

The police pulled me over, I stopped. He came up to
the car and ask for the license and registration, went
back to his car. came back and asked if we were lost
and where we were coming from, we told him that we
were at a wedding in MA and had just dropped off our
friend. I mentioned that this car was not ours, and
was my wife's cousin's, who was at home babysitting
our two children. He mentioned that he smelled alcohol
in the car and asked if we had been drinking. I
replied that I had 2 drinks at around 4:30 but none
since. (as I did not consume my drink at the Chinese
food restaurant). I did mention that moments ago, we dropped off a friend who was heavily intoxicated and that the alcohol smell was likely from her being in the car for the last few hours.

He asked me to get out of the car and submitted me to
a field sobriety test.

He asked me to put my hands to my side, lift my left
leg toes out in front of me and hold it there while
counting to 30 using thousands in between. I mentioned
that I was nervous, as I've never been given such a
test, and therefore was shaking uncontrollably. He
said that he understood and that it would be taken
into consideration. I performed the procedure without
losing my balance or putting my foot down. I counted
to 30 using the "thousands" method without having any
issues or incident.

He then instructed me to remove my eyeglasses. I
thought this was strange. He then took out a pen and
told me to keep my eyes focused on the pen and when he
instructed, place my right index finger pad on the top
of the pen. He then moved the pen left to right and
asked me to place my finger on it, which I did without
any issue. He repeated the process and I again under
request was able to place my finger on the very tip of
the pen with no issue. He then instructed me to keep
focused on the tip of the pen while moving it left to
right 7 or 8 times (approx).

It is important to note that I have terrible vision
without my glasses, and since I wear them at all times
(other than sleeping). Although I am short-sited, it
takes some considerable time for my eyes to adjust to
not being corrected to where I can see object clearly
enough up close and focus correctly as I have an
astigmatism in both eyes.


He then walked me over to a slightly up-sloping
driveway (he mentioned that it was a flat surface) and
asked me to walk nine steps forward, toe to heel with
my hands to my side, when reaching the ninth step,
keep the front foot planted, taking small steps with
the other, pivot 180 degrees and take nine steps back.
He demonstrated this for me and while he did so, he
stumbled slightly due to the surface of the driveway.
I performed the exercise with no trouble walking up
the driveway, taking all nine steps without issue
(although I was still shaking uncontrollably). While
turning back, the driveway surface was sloped slightly
downward. While it did not make me fall, or take a
foot out of line, I did have to make an extra effort
to take all nine steps back without taking a foot out
of line, going slightly off-balance (not falling out
of line or removing my hands from my side).

He then told me that portion of the test was complete.
I asked how I performed and he mentioned that my
performance wasn't stellar. I then asked if I failed
and he said no, and again repeated that my performance
was not stellar.

He then informed me that he had a final test that was
optional. He told me that it was a field Breathalyzer
test and that the test was completely optional. I
asked him why the test was optional and he informed me
that it could be used to make a final determination as
to whether I was driving under the influence. He again
stressed that the test was optional. I asked him then
why he was even asking me to take the test if it was
in fact optional, and given that I did not fail the
physical motor function tests. He informed me that
given all of the circumstances, the fact that my eyes
were red, the fact that he had smelled alcohol in the
vehicle, that it would be an important factor.

I then asked, "So, if I take the Breathalyzer test,
and I pass, I get to go home right?". He said no, that
it was only a part of the tests, and that I may still
be charged with driving under the influence. It was at
this point that I realized and was informed by the
officer that even though I had performed adequately on
my other tests, that I was going to be arrested even
if I blew in the Breathalyzer and passed. I made the
decision not to take the test, given that I did not
feel that the officer had the grounds to pull me over
and submit me to the tests in the first place, and
that I had followed all instruction and had performed
the tests correctly thus far. I felt and communicated
to the officer that I felt I had submitted enough
evidence that I was in fact NOT intoxicated and
informed him that since he posed the test as optional,
I would defer taking the field Breathalyzer test and
opt for other testing at the station.

The officer noted my decision and repeated it back to
me and then informed me that I was being arrested and
charged with operating under the influence. I told him
I understood and he put the cuffs on me, checked my
pockets, removed my phone and cigarettes and placed me
in the rear of his vehicle. I asked him to please
remove my wallet from the vehicle and he told me that
he would do so (he did).

Proceed to part two...

[sd1976]

Once at the station, the officer explained a form and
my rights to me, administrative license suspension
rights form. He told me that there was a line to sign
noting that I had been informed of these rights.

The officer stated explicitly that if I refused to take the
station Breathalyzer test, that my license would be
suspended for 120 days, beginning 30 days from now. I
asked many questions. One question I asked was whether
this was the only test available to me (as I read in
the form that I had the right to a similar test, such
as blood or urine) and I was interested in taking one
of those tests as I didn't know how the machine
worked, how reliable it or it's results were. I stated
that I wanted to take a blood test. He informed me
that a blood test was not an option. When I asked
about the line item #3 that states that I have the
right to a similar test of blood taking by a person at
my own expense, he responded that what that line
actually meant was that I could take a sample (air
tubes) from the station Breathalyzer test and at my
own expense and have it tested independently. I again
asked "so my only option is to take the station
Breathalyzer test, no other tests?" He responded that
the labcorp places were not open. I stated "so this
station test is my only option", he replied with
"yes". This confused me as it completely conflicted
with the rights as they were explained on the form.

I then asked him "so if I take this test, and I pass, I go home and everything
is back to normal and I keep my license?". He told me
no, that I was and would still be charged with
operating under the influence and would need to go to
court. He also stated that I would still be issued a
license suspension of 120 days and could plead not
guilty in court. This all confused me further.

I repeated back to him and asked if I understood
correctly, and he said yes.

At this point, I was under the impression, confirmed
by the officer that whether or not I took the
Breathalyzer and passed, that my license would still
be suspended and that I was to be still charged with
operating under the influence. I was being denied
access to an optional test that seemed to be my right
to take (blood or urine).

I informed the officer that I was not going to take
the test, as not only did I feel that I was wrongly
pulled over, and had adequately passed his field
tests. I also felt that succumbing to the test would do nothing to better my
position, as I felt the police were just fishing for
justification. In my understanding of the officers
statements (even after repeating them back to him)
that submitting to the test and passing would still
keep me charged with DUI. I felt that submitting to the second test at the station
would only help validate and complete his procedure
for arresting me without proper grounds. I felt that
if I took the test, I was giving in and agreeing that
I should have been there in the first place. Most
importantly, I stated my desire to take another form
of test and was told that it was not an option. I felt
I had the right to another type of test that I felt
was more reliable. It was this reason why I really opted out of the station breath test.

It is important to note that my wife submitted to a
test (even though she was not driving) and had
consumed her alcohol during the same time frame and in the same quantity as I did, blew
a 0.0 At no time was I informed of my Miranda rights throughout the entire procedure. The only rights explained to me was that I could refuse
the test. It's also important to note that I asked if
the police car had a camera so that I could request a
visual account of my field sobriety test for my
defense and was informed that their police cars do not
have cameras.

Any input or advice would be greatly appreciated. I've contacted at least on lawyer's office and they are reviewing my case. All of them want to charge money to even consult with me. I'd like to attempt to defend myself, as I feel I'm a decent researcher and have a stong case, although I don't know much about the process and have two issues to deal with (the administrative suspension and then the actual charges)

Thank you,
SD

[xylene]

Please edit your post.

This forum is fully parsing, there is no need to depress the enter key for line breaks.

I actually read your story.

Here is how it boils down:

You failed the field soberity tests. Whatever the officer told doesn't matter. Police lie.
By 'failed' I mean you displayed indica of alcohol intoxication. That is probable cause for arrest.

You then refused the roadside breath test. OK. Officer then arrested you. He had probable cause to arrest you.

You were then given the option to take the station breath test. You refused. Refusal is a crime seperate from the DWI. Had this incident occured in Arizona for example, you would have goten the refusal charge and in all likelyhood been held down by several officesr and had a blood sample forcibly taken for use as evidence against you in your DWI case.

Bottom line - You were confident you were not impaired, therefore refusing the breath test at the station was a big mistake.

You could haven taken the test, and then cited the test issues you were talking about in your defense. Your logic in refusing the breath test is completely ironious and has been rebutted in legal statute and numerous cases of suspected DWI, even when the police conduct was genuinely egregious (it was not in your case)

You do not have the expertise to beat a DWI rap without counsel.

[sjmjuly]

Refusing a breath test is just as good as admitting guilt. You should have taken the test. First and foremost, the penalties for refusing are much harsher (license wise) than taking the test. Secondly, had you taken the test and blew well below a .08, chance are the DA would dismiss the charges. You still would have your license suspended for an adminstrative period, but now you are facing a conviction. If you felt you were not intoxicated or impaired, taking the test would have been a better decision.
Get a lawyer - Right away.

[seven53]

Your reasoning for not submitting a breath sample at the station floors me. If you were indeed completely sober, why not submit a sample and prove it. You have absolutely NO experience with the reliability of a BAC testing machine. It is used thousands of times in this country each day, It is self checked prior to the test and professionally checked by a trained officer weekly to insure is accuracy and reliability. These checks are then recorded and held for years as evidence.

As for the other tests available to you, this means you can, at your own expense, have a blood draw or urine test at a local hospital, after you are released. This does not mean you can choose which test to take at the station, this is up to the police department and was explained to you.

The officer's report will be very detailed on the clues he received from your field sobriety tests. Removing your glasses for HGN (when he moved the pen left to right 7-8 times) is standard procedure. Every poster on these forums and every drunk that I arrest claims they passed the field sobriety tests, when in fact the don't, or as the officer told you, "your performance was not stellar", meaning you failed certain portions of the tests.

Miranda is required only when you are questioned about the incident.

You really put yourself in the jackpot by not blowing. That would be the only evidence you could present that you were not intoxicated. You have no chance defending yourself, IMHO.

[sd1976]

Yes, I refused the breath test at the station but that was because I understood that I had the right to request a blood test (which I felt was more definative and I trusted the method and results over a machine operated by police in a dirty exam room at the station) and was not only refused access to the test, but was also told that I didn't have that right, I only had the right to take a sample of the breathalizer test for my own testing.

Honestly, I was completely clueless. I have never been in this situation (nor arrested before). I did not know what to do or expect, although I distinctively felt that my rights as explained to me (and noted in the form) were not being given consideration.

I wanted the blood test! (or even urine). Honestly, any test done by someone else on equipment that is in a controlled environment by professionals would have done. I almost gave in and took the breath test, but opted not to when I was informed that my license would be suspended anyway, and that I was still going to be charged whether I passed the breathalizer test in the station or not.

Why should I have had to submit to their test when it's been clearly communicated to me in a form explaining my rights within the state of NH that I have the right to a different test?

Here is, word for word, the line in the administrative suspension form.

#3. You have the right to a similiar test or tests of blood, urine or breath taken by a person of your own choosing at your own expense. Upon your request, you will be given the opportunity for such additional test(s). You also have the right to obtain a portion of our sample of your breath, blood or urine for testing at your own expense.

Now, the way that I understood that line when reading the form, was that I had the right to request a blood or urine test. I was informed by the officer that I did not have that option.

That's the only reason I did not submit to the breath test, as I felt that the officer did not want to allow me access to any additional testing within a timeframe in which it could be used as evidence.

I'm so frinkin` confused.

[BigMistakeFl]

The option of having independant blood work was unavailable in the middle of the night as the labs were closed. The evidence would be lost if they were expected to wait until 9am when the labs opened. You refused the tests, even though your argument may appear sound.

[elmuchoprez]

Unfortunately, you took a bad situation and made it worse.

By refusing the breath test, you've essentially limited the only relevant evidence in the case to the officer's testimony, and obviously he's going to say you were impaired. Had you submitted to the breath test and blew a .01 or .02 or something, you'd at least have that in your corner. By refusing, you just look guilty to the court.

As to them not allowing another form of test, you really need to talk to a lawyer about that. There might be something procedurally wrong about that, although I certainly don't for sure.

As a side note, the role of the officer involved is essentially to bring any one before a court whom they believe has violated the law. Whether or not a law has actually been broken is then decided in a court. Basically, this means that arguing with the cop, trying to explain to him why you think you're not drunk, trying to explain why you think you shouldn't have been pulled over, telling him you feel like any rights of yours have been violated... it's all pretty much pointless. The arguing about any of that stuff should come in the court room, not in the police station.

[sd1976]

Originally Posted by BigMistakeFl

The option of having independant blood work was unavailable in the middle of the night as the labs were closed. The evidence would be lost if they were expected to wait until 9am when the labs opened. You refused the tests, even though your argument may appear sound.

I was completely stressed, while I had all of my senses, I read that form (and obviously misunderstood) and thought that I had the right to another form of testing at that time.

I am now freaking out! I really did NOT know that I didn't have the option of another test. I thought the officer was trying to strong-arm me into taking his test right there.

I had heard stories of people requesting blood tests at the station as they are more reliable that breath tests.

I feel like such a moron.

What can I do now? How can I explain to a judge that I thought that the line on the form meant that I had that right to another test without him thinking that I refused the test because I thought I wouldn't pass?

My motor skills were fine, I was articulate and cooperative and I'm sure that I did not come across as being "drunk", although the smell of alcohol in the vehicle, my red eyes and the fact that my legs where shaking like a jackhammer (due to being scared ****less) would be what he puts in his report.

[sd1976]

Originally Posted by elmuchoprez

Unfortunately, you took a bad situation and made it worse.

By refusing the breath test, you've essentially limited the only relevant evidence in the case to the officer's testimony, and obviously he's going to say you were impaired. Had you submitted to the breath test and blew a .01 or .02 or something, you'd at least have that in your corner. By refusing, you just look guilty to the court.

As to them not allowing another form of test, you really need to talk to a lawyer about that. There might be something procedurally wrong about that, although I certainly don't for sure.

As a side note, the role of the officer involved is essentially to bring any one before a court whom they believe has violated the law. Whether or not a law has actually been broken is then decided in a court. Basically, this means that arguing with the cop, trying to explain to him why you think you're not drunk, trying to explain why you think you shouldn't have been pulled over, telling him you feel like any rights of yours have been violated... it's all pretty much pointless. The arguing about any of that stuff should come in the court room, not in the police station.

But I've never even been to court before... I've never been accused of a crime or arrested. I have zero knowledge of how this works. All I knew is that I was being accused of something. My first instinct was to try to defend myself, second was to protect myself. I obviously screwed in my interpretation of my rights and instead of protecting myself, I completely hosed my position.

The entire ordeal was pretty much done under a panic attack.

Anything think a laywer can help my situation?

[BigMistakeFl]

I know exactly what you mean. I went through this too. When I was arrested, I was so sure that I had Miranda rights. I was so sure that I could refuse to do or say anything until I could speak with my attorney. I was wrong on all counts. Unfortunately, very few drivers today have an understanding of DUI laws and powers of arrest until after they've been through it.

As for the question of whether or not to get a lawyer, I would probably not face the court without one. It will cost, and you may get do no better with one than without. You will probably face minimum first offense penalties.

[elmuchoprez]

Originally Posted by sd1976

But I've never even been to court before... I've never been accused of a crime or arrested. I have zero knowledge of how this works. All I knew is that I was being accused of something. My first instinct was to try to defend myself, second was to protect myself. I obviously screwed in my interpretation of my rights and instead of protecting myself, I completely hosed my position.

The entire ordeal was pretty much done under a panic attack.

Anything think a laywer can help my situation?

I understand what you're saying; the whole process is overwhelming (and it's only going to get more overwhelming). While it is your responsibility to know what is and isn't against the law and have an understanding of how it all works, most people find themselves in a similar situation of having a poor comprehension of what's going on at the time and what the right move is. I'd be lieing if I told you I was any different when it happened to me.

You really do need a lawyer, if for no other reason that he/she will understand the circus you're about to go through and be able to guide you through it. Think about it this way: Because you didn't fully understand the situation the night of the DUI, you really stepped in it and made things worse. There are similar pitfalls in the court room process and you're going to be just as blind going into it as you were that night. Get someone who knows what they're doing.

[numbopaige]

I am not an attorney, but was convicted of a DWI in TX after a nightmare process (i'm from NH). You were v. smart not to take the test. Without it they have only the officer's opinion which is not enough to convict. They need to be able to prove intoxication, and I think probable cause for the traffic stop as well (but, this may vary state to state).

Here's all you can do:

-get a good attorney, one with a DWI background is crucial. This is serious and you need help to get the right outcome.

-keep on top of any related paperwork, suspension notices, etc. and/ or any action you need to take per your attorney.

-try to relax; this situation is largely out of your control and may take longer and be more involved than you could've imagined. just take it step by step.


good luck

[elmuchoprez]

Originally Posted by numbopaige

You were v. smart not to take the test. Without it they have only the officer's opinion which is not enough to convict. They need to be able to prove intoxication, and I think probable cause for the traffic stop as well (but, this may vary state to state).

This is a good example of why you should be careful about any advice you get from an Internet message board.

The officer's opinion (which will be considered expert testimony by the way, since he is officially trained to identify impairment and all the tests he used are sanctioned tests), is all they need to convict you. Also, whether you were "drunk" or not doesn't really matter either, since all he needs to say is that your driving ability was in some way "impaired".

And yes, it is true that you can challenge the legitimacy of the stop, and if by some chance you can prove that there was no reason for him to pull you over, then I believe the DUI charge becomes invalid. A DUI lawyer will be able to help you understand this type of challenge, but in my opinion, it's a long shot that you'll be able to win that fight.

[numbopaige]

You did not make a mistake by refusing the breath test. Okay, if you really were sober then it may not have been a bad idea. You could've blown even a .6 or .7, you'd be suprised, a .08 is a lower threshold than you might think. Again, I'm not an attorney, but I work for one. Refusal is not a separate crime in NH as someone else indicated; it's an administrative thing and yes, it makes your license suspension longer. You need to get off this forum, stop listening to half-baked legal advice (including mine) and proceed directly to an attorney, do not pass go! NH may have an administrative license hearing which usually occurs quickly after the arrest and which will give your lawyer the opportunity to cross-examine the police officer who arrested which is really important. You should not delay. Get an attorney. You're not screwed at all, this is just not something you should try to fix yourself