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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 90956
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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In the state of NH , The implied consent form says"for violations/misdemeanors"

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In the state of NH , The implied consent form says"for violations/misdemeanors" I was arrested for felony Dui and refused the test. I was suspended for 2 years on top of my DUI conviction. As the form clearly states, "violations/midemeanors"can the refusal be used againstme?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
I am afraid that under the implied consent laws, any refusal, whether it is on a misdemeanor or a felony, the refusal can indeed be used against you. I am afraid any refusal, no matter what the charge, can and will be used against you, even if the implied consent form specifies violations/misdemeanors, since a felony is much more serious that either of those. The form is not legally what matters, but N.H. RSA 265-A:4, relative to XXXXX of Driver or Operator to Submit to Testing to Determine Alcohol Concentration, which matters and it states:

Any person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state, or operates or attempts to operate a boat upon the public waters of the state shall be deemed to have given consent to physical tests and examinations for the purpose of determining whether such person is under the influence of intoxicating liquor or controlled drugs, and to a chemical, infrared molecular absorption, or gas chromatograph test or tests of any or all of any combination of the following: blood, urine, or breath, for the purpose of determining the controlled drug content of such person's blood or alcohol concentration if arrested for any offense arising out of acts alleged to have been committed while the person was driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration in excess of the statutory limits contained in RSA 265-A:2 or RSA 265-A:3. The test or tests shall be administered at the direction of a law enforcement officer, peace officer, or authorized agent having reasonable grounds to believe the person to have been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving or in actual physical control of a vehicle, or operating or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration of 0.08 or more, or in the case of a person under the age of 21, 0.02 or more. A copy of the report of any such test shall be furnished by the law enforcement agency to the person tested within 48 hours of receipt of the report by the agency by certified mail directed to the address shown on such person's license or other identification furnished by the person. Results of a test of the breath shall be furnished immediately in writing to the person tested by the certified breath testing operator conducting the test. When the incident involves an accident resulting in death or serious bodily injury to any person as provided in RSA 265-A:16, the prerequisites of N.H. RSA 265-A:8 shall not apply.


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Customer: replied 1 year ago.

All that was done was wrote what is on the form, and I don't think the answer is correct.

Expert:  Law Educator, Esq. replied 1 year ago.

I am sorry that you feel this way, as the law I posted above is not something I wrote, but was written by the state of NH. You are saying that violation/misdemeanor was written on the form, the law above was given to you to show that the law DOES NOT specify only misdemeanors and while you may believe the answer is wrong, I assure you that as you proceed through the process you will find out that it is you who is wrongly interpreting the form and you are ignoring the law itself because you want to benefit your situation.

However, there are some means to fight this implied consent statute, which is not what you asked other than you want to fight it over the wording on the form about violations/misdemeanors, which is not the proper dispute. You can fight the implied consent statute if you can prove that the officer never had any reasonable suspicion/probable cause to make you take the test in the first place. This means that you have to show that based on the officer's observations prior to him ordering you to take the test that there was no evidence to give a reasonable person grounds to believe you were intoxicated. This means things like you refused to take the field sobriety test, you were not falling down drunk or slurring your speech and you simply were not observed by the officer doing anything that would allow him to testify you were acting in an intoxicated manner. This is how you legally challenge the implied consent law, not by arguing words on the form that are NOT in the actual law, since the words on the form are not what matters to the court, it is the actual wording of the statute that matters.

Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 90956
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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