What To Do If You're Pulled Over For Drunk Driving In NH - Podcast

Being pulled over for a DUI


John Maher: Hi, I'm John Maher. Today I'm here with Ted Lothstein of the law office of Lothstein Guerriero with offices in Concord, and Keene, New Hampshire.

Lothstein Guerriero represents people who are charged with crimes throughout the state of New Hampshire in both state and federal court, in trial courts, and on appeal.

Ted in particular focuses on cases involving drunk driving, also known as DUI or DWI.

Today we're talking about what to do if you're pulled over for drunk driving in New Hampshire. Welcome, Ted.

Ted Lothstein: Good morning, John.

John: Ted, if you're pulled over by police, should the driver answer questions that the officer asks before they're arrested?

Ted: New Hampshire drivers are, John, subject to some obligations. If a police officer comes up and asks for your license and registration, you have to display those. You have to provide those documents. It could be a crime of disobeying a police officer, if you refuse to provide them.

Most people are going to want to be relatively cooperative with the police in terms of answering the basic questions. What's your name? Where are you headed? Where are you coming from? I think that if you refuse to answer those questions, you're going to invite suspicion.

Of course, every driver, if a person has had too much to drink, they may want to say as little as possible, understandably. I think that most people are going to want to answer those basic questions at the outset.

I do want to quickly put out there that it's not appropriate, obviously, for an attorney to give advice to people in the general community about how to avoid criminal liability and that's certainly not what I'm talking about here.

What I'm talking about is, based on my practice, my experience with handling over 1,000 DWI cases over the course of my career, what things work. Honestly, when people just refuse to talk to the police officer at all, if they just clam up, it really is not effective in terms of trying to avoid an arrest.

John: Right. Should the driver take the field sobriety tests if the officer requests that they do so?

Ted: First of all, I'll tell you that in New Hampshire, until you're arrested, there's no obligation to submit to field sobriety tests. Until you're arrested, there's no obligation to submit to a preliminary or portable breath test. There's no obligation to submit to any test at roadside.

If a person were to refuse," I'm not going to take any field sobriety tests" or I guess a better way to put it would be, "No, thank you." Then there's no penalty for that. That doesn't constitute any kind of violation of any law in New Hampshire.

The reality is that most people do submit to field sobriety tests. What I'll say to you is that, strangely enough, in cases where the driver refuses altogether to do field sobriety tests, I've sometimes found those cases more difficult to defend.

We're going to talk more about field sobriety tests, I think, in this interview.

When people do field sobriety tests, we get to focus the defense on what the officer did wrong, because these are standardized tests, on whether the officer made some mistakes in instructing the tests, whether the officer made mistakes in administering the test.

We also get to focus on all the things that the person did right, which in many cases, people may technically, quote unquote, "fail" the field sobriety test according to some government standard, but in reality, they did quite well according to a common sense view of the situation.

It's almost one of those abstract academic questions. Should the person take them? The fact is, just about everybody submits to them and I have found that when people refuse, it almost can make the case more difficult because then, all you have is an officer's unadorned opinion. I thought this driver was drunk.

It becomes difficult to defend, because there are no facts that we can point to to contradict that.

Woman taking field sobriety test

John: Right. In a way, it's better to take the test and have a chance that maybe the officer didn't administer it properly, you have some leeway there.

Ted: I think in many cases, it is better. Now, for a person who has a legitimate reason not to take the test, absolutely, the best course of action is to explain that reason to the officer and politely decline them.

If the person has any kind of injury, really, to any part of their body, because you use muscles throughout the entire body to do some of these tests.

If you have a recent or still aggravating injury to any part of the body, maybe you should just politely refuse and say, officer, I have an ankle injury, so I can't do tests like that.

If the person is obese, it would make to sense to say, officer, unfortunately, I'm overweight and I don't think that I can perform those tests. It wouldn't be fair to ask me to do that.

If the person is older, it would be appropriate to say to the officer, "Officer, maybe when I was a young person, I could do those tests, but I'm not going to try to stand up on one leg at my age on the side of a road."

If you're going to refuse them, it's very important to... I tell all my clients, if you're going to talk to the police at all, and often it's a good idea not to talk.

If you're going to talk, you have to be honest. If you have an honest reason why you probably shouldn't do the tests, tell the officer that.

John: Right. Does that go for the portable breath test or the breathalyzer as well? Is that something that somebody should take if the officer asks that they do so?

Ted: I have a different answer for the portable breath test. I certainly feel that there's no reason why any person should submit to that test. First of all, the law of New Hampshire says that there is absolutely no consequence for refusing the portable breath test.

Remember, we're only talking about tests that occur before you're arrested and handcuffed. OK? There's absolutely no penalty for saying, "No, thank you" and refusing the portable breath test.

If you take it, then you're putting your future in a device the size of a garage door opener that's not admitted in most courts because it's not felt to be sufficiently reliable to be admissible, but will sway the future course of the case.

If a prosecutor sees that your portable breath test result was way over the legal limit, even if the prosecutor can't necessarily use that number in court to prove your guilt, it's going to make the prosecutor much less willing to negotiate to some other charge.

Because they're going to feel strongly about your guilt because of that high number. It's also going to give the police officer probable cause to arrest you. Let's say that you did really well on the field sobriety tests, which happens a lot, surprisingly, for a number of reasons that we can discuss.

Let's say that the driver did really well on the field sobriety tests. If the driver is arrested, I'm going to have an issue to litigate about whether there was even probable cause to arrest and that could beat the case.

If that driver then goes and submits to an unreliable portable breath test and blows a number at or over the legal limit, now we have no claim.

Because, unfortunately, while these portable breath tests are usually not admissible to prove guilt, they usually are admissible to prove that the officer had probable cause to arrest. I think that that answer's pretty straightforward.

I guess I'll put it this way. Maybe if you've had absolutely nothing to drink at all, maybe you should submit to that test. If you have alcohol on board, I think that you should decline.

John: OK. Up until now, we've been talking about tests and questions before you're arrested. Say you do get arrested and the officer then continues to ask you questions. Should you answer questions that the officer is asking after the point where you're arrested?

Ted: Now we bring up the subject of Miranda rights. That word Miranda refers to a famous 1960s US Supreme Court decision, Miranda vs. Arizona. That's the decision, probably the most well‑known US Supreme Court decision among the American public.

It's, of course, a decision that says that if police are going to interrogate a person in custody, they have to read them their rights.

I would say that probably more than several times a month, clients or prospective clients say to me, the officer never read me my Miranda rights. Does that mean that I win? Or what does that mean?

Here's what police do. When New Hampshire police officers arrest people for DWI, they usually do not immediately read Miranda rights, because they don't want people to shut down and decide that they just want an attorney.

What the officers do instead is they go straight to the administrative license and suspension rights. Basically, it's a required list of warnings that the officer has to give a person before the officer can ask them whether to submit to a breath test or a blood test or some other test at the police station. A person should cooperate with that procedure.

This is a very complicated question, should you answer questions while at the police station.

If you're being asked if you understand your rights with respect to taking or not taking a breath test, that is certainly a procedure you should cooperate with, at least to the extent that you are respectful to the officer and you say, yes or no. Yes, I understand that, or no, I don't understand that.

If the officer asks you questions along the lines of "How much have you had to drink tonight? Where have you been?" Things like that, then I think it's a judgment call. If the truthful answer is I've had two drinks or two beers, then I think it's probably helpful to provide that.

I don't think it's necessarily true that the best course of action is to answer no questions whatsoever.

If your answers are going to incriminate you, then common sense would suggest that it would be better to decline to answer. You have the right to not answer any question asked by the police that goes to your guilt or innocence.

If the officer asks you, "How much have you had to drink tonight?" I actually had a real life client who answered quote unquote, "Six to nine beers." I don't think that that was the best course of action.

John: Right.

Ted: I think that particular person clearly would have been better off saying that they'd like to wait until they have a lawyer before they answer questions. That's a hard one. That's not an easy one to answer.

John: What is the Intoxilyzer test, and is that something that the driver should take when they're at the police station?

Ted: New Hampshire continues to use a machine called the Intoxilyzer 5000EN. This is a machine based on technology that dates back to the late '70s and early 1980s.

The reason that New Hampshire continues to use such an antiquated machine is that it's the only machine available on the market that can capture two separate breath samples, which are actually captured in tubes, put in a packaging, and given to the driver.

Given to the, I guess, defendant at the end of the arrest procedure.

We have a series of decisions decided on the New Hampshire Constitution that hold that under the due process clause of the state Constitution, as opposed to the United States Constitution.

If police are going to use a breath test machine ‑‑ we're only talking about the one at the station, the Intoxilyzer ‑‑ they have to use a technology capable of capturing samples for the driver to be able to retest them later and see if the result corroborates or contradicts what the result was of the police department.

The most recent of those court decisions is only from two or three years ago. Interestingly, by virtue of court decisions, which I by the way completely agree with, and in fact worked as one of the appellate lawyers in the most recent decision, which was called "opinion of the justices with respect to captured breath samples."

As a result of these court decisions, the state of New Hampshire has been limited to using this machine, which is based on fairly obsolete technology as breath testing technology goes.

The Intoxilyzer 5000EN is a machine that you blow into a tube, the machine goes through a series of steps to attempt to preserve the integrity of the sample that you blow.

For example, if a person hearing this interview actually has a DWI case, they can look at their own test ticket, which is provided to them, and see that the first test is a test of room air.

The machine fires room air into a chamber and tests that for alcohol content, and will only work if that number is a 0.00. If you think about it, the purpose of this is to rule out arguments by defense lawyers that maybe they just painted that room that day.

Or there's an open can of industrial chemicals in the police booking room, which is affecting the test.

John: Right.

Ted: There's a room air blank and then there's a series of internal tests, and then the driver provides a breath test, and then another breath test three minutes later.

Then there's a test of a known sample, which is actually a jar of liquid with a gas that's been measured in a laboratory to be exactly 0.10 percent alcohol.

Then the machine does another room air blank and actually captures those two breath samples that were taken three minutes apart into the tubes, which are given to the driver, or have to be given to the driver under the law at the end of the procedure.

What this test does, first of all it's not really testing like I said before, for alcohol. It doesn't have that level of precision. It's testing for part of a molecule where ethanol would test positive but a variety of other things would also test positive. There's a danger of false positives with the Intoxilyzer.

In fact, that's the primary reason why we have the captured samples. I have clients come in and they tell me that another lawyer told them that their breath test may be corrupted because they're working with chemicals that day.

What I tell them is, "Look, you know, we're going to send in your captured samples to a laboratory called CG Labs", in central New Hampshire, "and we're going to find out if the contents of your breath sample were actually ethanol or other compounds that can fool the machine into thinking it's seeing ethanol."

I can't remember if you asked me more than just what is the machine, but I think you went on to ask should the person submit to a breath test. Is that correct?

John: Right, yes.

Ted: Again, it's very important to me to give a disclaimer, that it would be irresponsible for me to give advice to someone about how to handle themselves in a specific hypothetical future case.

It would be irresponsible because the breath test machine is often accurate, and if a person's innocent, then it would be in their best interest to take the breath test, if they were lucky enough to be dealing with a machine that was accurate on that given day.

I wouldn't want to give advice, I think it would be wrong to just tell the whole world never take a breath test.

That would be irresponsible, because it could deprive somebody out there of evidence of their innocence. That being said, I think having handled many of these cases, it's more difficult to avoid a DWI if you provide a breath sample that's at or over the legal limit.

It just becomes more difficult. Doesn't become impossible, but it does become more difficult. You're supplying evidence of guilt in many cases, and when I say guilt, you've got to keep in mind the legal limit is set very low. The legal limit is set at 0.08 percent alcohol concentration in the blood.

Let me give you an example. For a woman who weighs 120 pounds, that woman can reach the legal limit of 0.08 after having two glasses of wine. I don't mean the glasses that you pour for yourself quite generously, I mean a standard six ounce glass of wine that a bar or restaurant is supposed to pour.

John: Right.

Ted: The legal limit is set extremely low and lots of people are going to exceed the limit who don't feel impaired. Who feel like, "Gee, I think I'll pass the test. I don't think that I'll be over the legal limit."

That's a dangerous way of thinking. Sometimes I think that I should just tell people, "If you've had more than one, don't take the test." Again, you just can't make any simplistic rule.

All I can say is in my experience, I usually have a somewhat better chance of success if there's no breath or blood test than if there is a breath or blood test that's at or over the legal limit.

John: You mentioned the blood test as well, that's a little bit different than the Intoxilyzer. Is that something that you should take then, if the officer asks you to do that, or should you refuse to do that?

Ted: First of all, you can get your own blood test. New Hampshire law states that every person under arrest for DWI has the right at the end of the arrest procedure to get their own independent testing of their blood.

There's really two ways to do it. Obviously, if you can get bailed out, you could just go to a hospital or a physician. Although sometimes, it's hard to get them to agree to do a blood draw for a non‑medical reason.

Alternatively, every once in a while a police department will comply with this law by actually bringing a person to a hospital for a blood test. This is a person who's already given a breath test. This is a person who's already go through, essentially, the whole procedure including being bailed, being released.

The police officer takes them to the hospital for that blood test. You have the right to do that, to get your own independent sample, but what happens more often is that the police just ask a person to do a blood test at the outset.

In other words, often what will happen in the cruiser as soon as the handcuffs go on, the driver will be sitting on the back seat of the cruiser handcuffed, and the office will read those administrative license and suspension of rights, and say, "I'm asking you to take a blood test." Are you willing to take a blood test?"

Now of course, this is post‑arrest, so refusal is a six‑month suspension of your license for a first time offender. It's a two‑year suspension of your license for a second time offender, if the prior conviction is within 10 years.

This could be a hard decision, but here's what you're dealing with. Blood testing is the most accurate means available to obtaining information about the alcohol concentration of a person's blood.

Because it's the most accurate information available, that means two things. One is for the person who actually is innocent, who hasn't had enough alcohol to reach the legal limit or to be anywhere near it, it's clearly in their interests to take a blood test.

Unfortunately, like we said before, pretty hard to know whether you're there or not because the legal limit's set so low.

If you only had one beer, I think it's obvious that it's in your interest to take the blood test. If you really only had one beer, no matter what you weigh or what size you are, science dictates that the overwhelming likelihood is you'll be way below the legal limit.

If you've had too much, then I'll be candid and say that cases where there's a blood test that's at or over the legal limit, these are the cases that are hardest to defend, not impossible.

I have won blood test cases, but if the blood test comes into evidence, it becomes very difficult because of what we just said, that it's the most reliable means of testing for alcohol concentration available. Judges know that.

Many judges have questions about breath tests. I've seen a readiness on behalf of many New Hampshire judges to acquit, even if there's a breath test over the legal limit, if the rest of the evidence just doesn't fit with that, if the rest of the evidence looks like an innocent person.

With a blood test, it's definitely more difficult to win a trial in front of a New Hampshire judge. Or a jury, for that matter.

John: Ted Lothstein, thank you very much for speaking with me.

Ted: Hey, it's been great talking to you, John.

John: For more information, please visit the law firm's website, at lothsteinlaw.com. That's L‑O‑T‑H‑S‑T‑E‑I‑N law.com, or call Ted at 603‑513‑1919.

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Categories: DWI/DUI Defense