Know Your Rights. Know Your Options.
Former chief prosecutor and experienced New Hampshire attorney Rick St. Hilaire represents DWI / DUI clients in all New Hampshire state courts from office locations in Lebanon NH and Concord NH. Use the contact form at right to set up a free DWI consultation. Click here to view past DWI and criminal case results.
Overview of Driving While Impaired (DWI)
and Driving Under The Influence (DUI)
DWI and DUI are different terms for the same offense. Many people know it as drunk driving. But a driver does not need to be drunk in New Hampshire to be arrested or convicted of DWI / DUI. The standard under NH law is the following: impairment by alcohol and/or drugs to any degree, however slight.
One thing is certain. Being arrested for driving under the influence in NH can be stressful. So the more you know about the law and the police investigation, the easier it is for you to make informed decisions about your legal case.
In New Hampshire, a person arrested for driving under the influence is often stopped by the police for a simple traffic violation. After detecting signs of possible alcohol and/or drug impairment, the police officer typically asks the driver to exit the car and perform field sobriety tests.
Field sobriety tests are designed to measure a person's physical ability and mental attention. A police officer uses these tests, in part, to determine whether a person is under the influence of alcohol or drugs. The tests routinely consist of an eye test called Horizontal Gaze Nystagmus, the Walk and Turn test, and the One Leg Stand. Other tests less frequently given include Vertical Gaze Nystagmus, Finger to Nose, the coin pickup test, and the alphabet test.
The police officer makes an arrest using a standard known as probable cause. Courts can review the officer's decision to arrest by asking whether it was more probable than not that the driver was impaired by alcohol and/or drugs to any degree, however slight, when the officer placed the driver under arrest.
When a driver has been arrested for DWI, that person is read an Administrative License Suspension (ALS) form. It tells the driver that he or she has impliedly consented to submit to further testing to determine the level of alcohol and/or drug concentration in a person’s system. This further testing usually consists of a breath test, performed on an intoxilyzer machine, or a blood test.
Should a driver refuse the breath or blood test, the police officer will mark the ALS form as a “refusal” and send it to the NH Division of Motor Vehicles for an Administrative License Suspension. The driver will also be charged with “under the influence” DWI.
Should a driver test positive for .08 or more blood alcohol concentration (.02 or more for a driver under the age of 21), the police will mark that alcohol level on the form and send it to the NH Division of Motor Vehicles for an Administrative License Suspension. The driver will also be charged with “per se” DWI. In the case of a person testing .16 or more, the driver will be charged with Aggravated DWI.
DWI / DUI “Under the Influence” and Penalties
A driver is usually charged with “under the influence” DWI when he or she refuses to take a breath or blood test after being read the Administrative License Suspension rights form. The charge simply alleges that the driver drove or attempted to drive on a roadway while such person was under the influence of intoxicating liquor or any combination of intoxicating liquor and controlled drugs.
A person found guilty of this DWI offense is subject to a class B misdemeanor conviction, a fine between $500 and $1200, and a revocation of license between 9 months and 2 years (between 1 year and 2 years for drivers under 21). The license loss may be reduced by the court by up to 6 months so long as the driver has entered an Impaired Driver Intervention Program (IDIP) within 45 days of conviction. A driver must enter IDIP before getting his or her license back.
Any conviction involving the transportation of a child under the age of 16 carries the maximum license loss.
The court may reduce the classification of the misdemeanor conviction to a violation (a non-criminal offense) upon a motion filed at least one year after the date of the conviction.
DWI / DUI “Per Se” and Penalties
A driver is usually charged with “per se” DWI when he or she tests between .08 and .15 after taking a breath or blood test. The charge alleges that the driver drove or attempted to drive on a roadway while such person had an alcohol concentration of .08 or more.
A person found guilty of this DWI offense is subject to a class B misdemeanor conviction, a fine between $500 and $1200, and a revocation of license between 9 months and 2 years (between 1 year and 2 years for drivers under 21). The license loss may be reduced by the court by up to 6 months so long as the driver has entered an Impaired Driver Intervention Program (IDIP) within 45 days of conviction. A driver must enter IDIP before getting his or her license back.
Any conviction involving the transportation of a child under the age of 16 carries the maximum license loss.
The court may reduce the classification of the misdemeanor conviction to a violation (a non-criminal offense) upon a motion filed at least one year after the date of the conviction.
Aggravated DWI / DUI and Penalties
A driver is usually charged with Aggravated DWI when he or she tests between .16 or more after taking a breath or blood test. The charge alleges that the driver drove or attempted to drive on a roadway while such person had an alcohol concentration of .16 or more.
Aggravated DWI may also be charged in cases where a driver is under the influence of alcohol and/or drugs or is over the .08 limit (.02 for a driver under age 21) and
• drives more than 30 miles per hour over the speed limit;• tries to elude police pursuit; or• carries a passenger under 16 years old.A person found guilty of Aggravated DWI is subject to a class A misdemeanor conviction, jail time between 10 days and 12 months (at least 3 days served in county jail and 7 days served at the DWI multiple offender program), a fine between $750 and $2000, and a revocation of license between 18 months and 2 years. The license loss may be reduced by the court by up to 6 months so long as the driver has entered the relevant substance abuse driver intervention program as soon as allowed. A driver must enter the appropriate impaired driver intervention program, multiple offender program, or other authorized treatment program before getting his or her license back.
Aggravated DWI may also be charged in cases where the driver causes serious bodily injury while being under the influence or while having a blood alcohol concentration of .08 or more (.02 or more for drivers under 21 years old). A person found guilty of this offense is subject to a class B felony conviction. The maximum prison time is up to 3 1/2 - 7 years. The minimum jail sentence is 21 consecutive days, where at least 14 days are served in the county jail and 7 days are served at the DWI multiple offender program. A fine may be imposed between $1000 and $4000 as well as a revocation of license between 18 months and 2 years. The license loss may be reduced by the court by up to 6 months so long as the driver has entered an Impaired Driver Intervention Program (IDIP) as soon as allowed.
Any conviction involving the transportation of a child under the age of 16 carries the maximum license loss.
DWI Subsequent Offenses
Second, third, and subsequent convictions for DWI carry greater penalties. DWI Second Offense and DWI Third Offense are class A misdemeanors. A fourth or more DWI offense is punishable as a felony. Penalties for a subsequent offense DWI include mandatory incarceration, greater loss of license, and a criminal record. Convictions for subsequent offenses require completion of the Multiple Offender Program (MOP), also known as Phase II, and the installation of an ignition interlock device in the driver's automobile from 12 months to 2 years after restoration of the license to drive.
Impaired Driver Intervention Program (IDIP)
The courts may suspend up to 6 months of the license revocation period in many DWI cases provided that the driver enters an Impaired Driver Intervention Program (IDIP) within 45 days after conviction, or as soon thereafter as any extenuating circumstances approved by NH’s Department of Health and Human Services. The approved programs in NH can be found at www.nh.gov/safety/divisions/dmv/financial/linksalcohol.html and cost approximately $500 to $600. Further information about the programs can be found by clicking here. A drivers license cannot be reinstated until all aftercare recommendations are followed. It should be noted that aftercare is required in any case where the driver had a BAC of .16 or more. An IDIP's aftercare decision may be appealed to the Division of Motor Vehicles within 20 days of receipt of notice. These appeals are known as "red flag" hearings.
Administrative License Suspension
The Administrative License Suspension (ALS) process is separate from the court process. When a driver is arrested for DWI, he or she faces charges in court as well as the license suspension that comes through ALS. The license suspension through the Division of Motor Vehicles occurs when a driver either refuses a breath or blood test or when a driver tests over the legal limit. The license loss is 6 months. Should a driver have a prior DWI conviction or a prior refusal on his or her record, the license loss is for 2 years.
The ALS license loss that is imposed when there is a refusal to take the breath or blood test is in addition to any license suspension that may be ordered by a court. Meanwhile, the ALS license loss imposed when there is consent to take the breath or blood test can be run concurrently (at the same time) to any license suspension that may be ordered by a court.
The Administrative License Suspension process may be challenged by a driver on several grounds under NH RSA 265-A:31. They include:
• whether the police had reasonable grounds to believe the arrested person was driving• whether the person had actually been arrested; • whether the person refused to submit to the test upon the request of the police officer• whether the test disclosed an alcohol concentration over the legal limit• whether the officer informed the arrested person of his or her right to have a similar test conducted by a person of his or her own choosing; and• whether the officer informed the arrested person of the fact that a refusal or testing above the legal limit would result in a license suspension.License Restoration Process and the Probationary License
Upon completion of a court ordered license suspension or revocation, and upon completion of any Impaired Driver Intervention Program (IDIP) or Multiple Offender Program (MOP) and any aftercare requirements, a person convicted of DWI is eligible to restore his or her driver’s license or operating privileges. The auto insurer must submit an SR-22 form with the NH Division of Motor Vehicles and a $100 restoration fee must be paid to the NH DMV. The license that is then given is a probationary license valid for five years. A probationary license allows a person to drive just like any other license. However, a driver cannot operate a motor vehicle while having a blood alcohol concentration of .03 or more. Additionally, any refusal to submit to an alcohol test subjects a driver to an administrative license suspension even if the person is not under the influence of an alcoholic beverage.
Annulment / Expungement
A conviction for DWI cannot be annulled (stricken from the record) until at least 10 years after the date of conviction. However, a DWI first offense may be reclassified from a Class B misdemeanor to a non-criminal, violation level offense after one year.
New Hampshire DWI / DUI / Drunk Driving Defense
Lebanon Office (click for directions)
20 West Park St., Suite 207,
Lebanon, NH 03766
43.707173,-72.283098
Concord Office (click for directions)
The Meeting Place
10 Green St., Concord, NH 03301
43.203936,-71.538882
Copyright 2012 Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC
10 Green St., Concord, NH 03301 and 20 West Park St., Lebanon, NH 03766
This web site is designed for general information only. The information presented at this attorney site should not be construed to be formal legal advice nor the formation of an attorney-client relationship. The lawyer is licensed in New Hampshire, and the web site is not intended to solicit clients outside New Hampshire. The law office is not affiliated with St. Hilaire Law. Do not send confidential information through this web site.
Search among the best DWI lawyers and top DUI attorneys in Concord NH, Lebanon NH, serving Hanover NH, Dartmouth College, Claremont NH, and Newport NH and more and contact New Hampshire criminal attorney and drunk driving (DWI / DUI) lawyer Rick St. Hilaire. Areas served in New Hampshire (NH) include: Concord, Lebanon, Hanover, Claremont, Neport, New London Manchester, Enfield, Canaan, Plainfield, Cornish, Lyme, Grantham, Orford, Grafton, Haverhill, Woodsville, Littleton, Lisbon, Piermont, Grantham, Sunapee, Warner, Hopkinton, Henniker, Bow, Hooksett, Penacook, Allenstown, Hampstead, Pembroke, Contoocook, Laconia, Loudon, Belmont, Tilton, Franklin, Plymouth, Lincoln, Conway, Lancaster, Bow, Hooksett, Loudon. Law practice areas include alcohol offenses, drunk driving, DWI / DUI, felony / felonies, misdemeanor, traffic offenses, negligent homicide, manslaughter, and negligent driving.
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