Charges for violation of New Hampshire’s DUI (driving under the influence) laws are an extremely serious matter. Often, the initial arrests for these violations, as well as the charges, are based on the results of chemical breath tests. Understanding when and how you have the right to refuse a Breathalyzer test, and what the legal repercussions may be, can help you to make informed choices about your situation. In addition to providing information, a Meredith DUI lawyer with Friedman & Bresaw, PLLC may be able to help you navigate the justice system to deal with the outcomes of a DUI arrest. Our legal team has helped clients with thousands of cases over decades of combined experience, and we are happy to take your call. Reach out to us today by calling 603-707-4800.
What Happens if You Refuse a Breath Test?
The legal consequences of refusing a breath test for DUI in New Hampshire depend primarily on whether the test is ordered in the field, before arrest, vs. at the station, once a suspect is in custody. Drivers often refer to breath tests collectively as “Breathalyzers,” but there are important differences in accuracy and in legal significance between preliminary breath tests administered in the field and evidentiary breath tests administered in custody.
Summary of Breath Testing and Breathalyzer Law in New Hampshire
Refusing a breath test under New Hampshire DUI law RSA 265-A carries different legal consequences depending on whether the refusal occurs during a roadside stop or after a DUI arrest in New Hampshire. Preliminary breath tests (PBTs) authorized under RSA 265-A:15 may be refused without automatic penalties, but officers may still establish probable cause for arrest based on other observations. Post-arrest chemical breath tests required under RSA 265-A:4 trigger license suspension penalties of 180 days to two years if refused, even without a DUI conviction. Implied Consent allows law enforcement to request chemical testing because drivers implicitly agree to such tests by operating a vehicle on public roads. Attorneys at Friedman & Bresaw, PLLC in the Belknap County area assist individuals in understanding DUI charges, breath test refusals, and related legal procedures.
Understanding Your Legal Rights: Police Stops and Breath Tests
Two subtle distinctions under New Hampshire law can leave drivers confused about their legal rights after a DUI traffic stop. The first of these is the distinction between reasonable suspicion vs. probable cause in terms of an individual’s right to freedom from unreasonable search and seizure. The second is the practical difference between a preliminary breath test administered in the field vs. a chemical test performed at the police station after arrest. Helping clients understand how these distinctions affect these rights is one of the most important tasks of a Belknap County DUI defense lawyer.
What Is the New Hampshire DUI Test Law?
RSA 265-A is the chapter of the New Hampshire statutes that covers the state’s prohibitions on driving while under the impairing influence of alcohol or various other chemical substances, as well as the various enforcement mechanisms and legal consequences for violating any of these driving laws. Because any prohibitions made under a state’s laws need some reliable framework for confirming whether the law has in fact been broken in a particular instance, New Hampshire’s motor vehicle laws contain provisions authorizing the use of physical and chemical tests to determine whether an impairing substance covered under RSA § 265-A:2 or 265-A:3 may be detected in a driver’s blood, breath, or urine.
They also contain provisions for in-the-field testing to help law enforcement officers determine whether an arrest is appropriate. The administration of these tests must follow strict requirements to be admissible as evidence under state law. One of the earliest steps a criminal defense attorney with Friedman & Bresaw, PLLC may take in a DUI case is to investigate the circumstances of the traffic stop that led to our client’s arrest, and the conduct of law enforcement from the initial investigative stop through the chemical testing process.
Physical Tests and Police Searches
The physical tests authorized under RSA §§ 265-A:4-5, whether they measure via blood, breath, or urine, all constitute forms of “search” by law enforcement and are therefore subject to the protections for the Fourth Amendment to the United States Constitution (protection against unreasonable search and seizure) and to applicable provisions of New Hampshire law as well. What this means is that the use of such tests by law enforcement requires a legal mechanism for authorization to be valid. This authorization comes in the form of New Hampshire’s “implied consent” law.
What Is Implied Consent?
The notion of “implied consent” is that, by taking a certain action or engaging in a certain activity, an individual implicitly agrees to accept some provision, condition, or consequence, even if the person has never made any statement or signed any release that explicitly grants that consent. You may be familiar with this framework from the “cookie banners” on some websites that, instead of requiring you to check a box or fill a form, provide you with notice that by continuing to browse on that website, you are agreeing to accept the terms of their data collection policy (such data being typically, but not exclusively, collected via browser “cookies”).
Implied consent under New Hampshire’s DUI laws works in much the same way. The relevant statute is RSA § 265-A:4, which establishes that driving, operating, or even attempting to drive or operate a motor vehicle on New Hampshire’s roads (or public waterways; boats are included in the motor vehicle classification), is “deemed” to have granted their implicit consent to “physical tests and examinations” administered for the purpose of identifying chemicals present in the individual’s breath, urine, or bloodstream, and for determining the concentrations of those chemicals. Determining concentration is crucial in cases involving alcohol, for which blood alcohol content (BAC) has a legal threshold.
What Drivers Need To Know: Preliminary vs. Post-Arrest Tests
The “Breathalyzer” breath test is a chemical test for the presence of alcohol in an individual’s exhalations (breathing out). The test is manufactured under a few different brand names; the one typically used in New Hampshire police stations as of 2026 is called Intolyzer. Importantly, police stations are in fact the context in which the Breathalyzer test is generally administered. There is also another category of breath test; New Hampshire law calls these “preliminary breath tests,” but you may also see them referenced as “portable breath tests” (both are called PBTs).
These tests are authorized for use by law enforcement in the field, pursuant to RSA 265-A:15. Because both types of test measure the breath, and the person being tested is generally asked to blow into the device similarly, drivers are often confused about the differences between these tests, and many drivers habitually refer to all chemical breath tests as Breathalyzers. This common misunderstanding introduces an additional layer of confusion regarding the consequences of refusing a Breathalyzer in New Hampshire. To understand why, it helps to take a look at how New Hampshire courts handle reasonable suspicion vs. probable cause.
Reasonable Suspicion vs. Probable Cause in DUI Traffic Stops
To perform an arrest without a judicial warrant, law enforcement officers need what is known as “probable cause” to believe that a crime is being committed, has been committed, or is imminently intended. Suspicion of a violation of either RSA 265-A:2 or 265-A:3 is among the most common “trigger” circumstances for a probable cause arrest, owing partly to the fact that suspicion of this violation often arises from driving behavior law enforcement personnel observe in the field. Common scenarios include traffic incidents in which the investigating officer believes impaired driving may have been a contributing factor, observations of erratic behavior at the wheel, or observations made at a planned DUI checkpoint.
There are two points in particular that New Hampshire drivers may find helpful to keep in mind. The first is that the reasonable suspicion standard for performing an investigative stop is much lower than the probable cause standard for placing an individual under arrest. The second is that in many instances, a traffic stop itself yields the evidence that leads to an arrest.
Use of Breathalyzer vs. PBTs Under New Hampshire Law
When a law enforcement officer performs a traffic stop under this lower standard, he or she will still need probable cause to place the driver under arrest. The “probable cause” hearing will be part of the legal proceedings leading up to a driver’s arraignment if New Hampshire prosecutors decide to charge the individual with DUI after their arrest, and a failure by the arresting officer to show evidence sufficient to establish probable cause can lead the whole case to be dismissed. Evidence of driver impairment may be harder to detect once the individual is stopped and no longer actively operating a vehicle, and so New Hampshire law provides for “preliminary” tests in the field to help confirm (or, theoretically, dismiss) an officer’s suspicions.
Some of these tests are the FSTs that purport to assess an individual’s functional impairment through challenging their balance, coordination, or ability to track movement normally (horizontal gaze nystagmus, or HGN). However, the PBTs authorized under RSA 265-A:15 when a properly trained law enforcement officer has “reasonable grounds” to suspect a violation of either 265-A:2 or 265;A:3 are among the most commonly used. Notably, “passing” a preliminary breath test is no guarantee of avoiding DUI charges; both DUI and aggravated DUI in New Hampshire cover impairment by substances other than alcohol, which is the only chemical PBTs are designed to detect. For alcohol specifically, however, one of these tests can provide an early indication of whether the individual tested has a BAC above the legal limit. Law enforcement personnel then use a positive PBT as the basis for a probable cause arrest.
Limitations on PBTs as Evidence
The same portion of New Hampshire’s impaired driving laws that authorizes the use of preliminary breath tests in the field also limits the purposes for which their results may be used. RSA 265-A:15 explicitly allows law enforcement to use the results of a preliminary breath test to establish probable cause before making an arrest. The results of the PBT are therefore also admissible as evidence during the probable cause hearing that follows the arraignment; however, PBT results may only be used to show the reasoning for the probable cause determination that led to the arrest. They may not be used at trial as evidence of actual intoxication to prove a violation of either RSA 265-A:2 or 265-A:3.
What Is New Hampshire Law if You Refuse a Breath Test in the Field?
Not only the legal uses of results from a preliminary breath test administered in the field, but also the consequences of refusing to submit to testing in this situation, differ from those associated with the physical testing carried out at a police station after a DUI arrest. Refusing a chemical test of blood, urine, or breath ordered while the individual is in custody for suspected DUI will result in a driver’s license suspension of up to two years, depending on the circumstances; refusing a preliminary breath test in the field does not carry the same penalties.
In one sense, there are no specified consequences for refusing a preliminary breath test at a traffic stop: That is, there is no state-mandated penalty that automatically applies to the refusal itself. However, the officer who requested the test may still decide to arrest you if he or she believes that the other factors they have been able to observe in the situation are sufficient to establish probable cause without the results of a breath test. If you are arrested on suspicion of DUI after refusing to take a breath test in the field, then you will still be subject to all the usual penalties of failing to abide by the terms of New Hampshire’s implied consent law if you also refuse the post-arrest physical test at the station.
Consequences of Refusing a Breathalyzer at the Station
The consequences for refusing a chemical breath test ordered at the police station pursuant to RSA 265-A:4, on the other hand, are quite serious. Refusing a Breathalyzer at the police station while you are in custody can lead to significant, life-disrupting penalties even if you are never convicted of DUI. These penalties vary depending on whether you have a prior refusal on your record; drivers who have no prior history of refusing a Breathalyzer face suspension of license and driving privileges for 180 days, while those whose records show a previous refusal can expect the same restriction to last for two years.
Speak With a Meredith DUI Lawyer
Refusing a breath test at a traffic stop does not carry penalties in New Hampshire. However, declining a preliminary breath test in the field does not necessarily prevent you from being arrested for DUI. Refusing a Breathalyzer after arrest, at the police station, carries a penalty of up to two years’ suspension of your driver’s license or driving privileges. In either case, there are specific requirements and standards that law enforcement personnel must meet to be authorized to administer the test in question, and they are legally obligated to inform you of your rights under New Hampshire law. To learn more or to discuss your options, whether you have refused a Breathalyzer or failed a chemical breath test, call Friedman & Bresaw, PLLC at our Belknap County office to schedule a private consultation. Reach out today at 603-707-4800.
Essential Frequently Asked Questions About Breathalyzer Refusal And DUI Law In New Hampshire
The following FAQs address common legal questions related to Breathalyzer refusal, DUI enforcement, and implied consent laws in New Hampshire.
Can You Refuse A Preliminary Breath Test During A Traffic Stop In New Hampshire?
Drivers may refuse a preliminary breath test under RSA 265-A:15 during a traffic stop in New Hampshire without automatic penalties, although law enforcement may still pursue an arrest based on observed impairment. Officers may rely on driving behavior, field sobriety tests, and other indicators to establish probable cause for a DUI arrest.
What Is The Difference Between A Preliminary Breath Test And A Breathalyzer In New Hampshire?
A preliminary breath test in New Hampshire is a roadside screening tool under RSA 265-A:15, while a Breathalyzer is an evidentiary chemical test administered after arrest under RSA 265-A:4. Preliminary breath test results help establish probable cause but are not admissible at trial to prove intoxication, unlike post-arrest chemical test results.
What Is Implied Consent Under New Hampshire DUI Law?
Implied consent under New Hampshire DUI law means that individuals operating vehicles on public roads are deemed to have agreed to chemical testing under RSA 265-A:4 for alcohol or drug detection. This legal doctrine allows law enforcement to request breath, blood, or urine tests and imposes administrative penalties for refusal.
What Are The Penalties For Refusing A Breathalyzer After Arrest In New Hampshire?
Refusing a post-arrest Breathalyzer test in New Hampshire results in administrative license suspension ranging from 180 days to two years under RSA 265-A:4, depending on prior refusals. These penalties apply regardless of whether a DUI conviction occurs.
Can Police Arrest You For DUI Without A Breath Test In New Hampshire?
Law enforcement officers in New Hampshire may arrest an individual for DUI without a breath test if probable cause exists based on observations, field sobriety tests, or other evidence. Probable cause may arise from erratic driving, physical signs of impairment, or results of standardized field sobriety testing.
Are Preliminary Breath Test Results Used In Court In New Hampshire?
Preliminary breath test results in New Hampshire are limited in court use and may only support probable cause determinations under RSA 265-A:15, not prove intoxication at trial. Courts restrict their evidentiary role to explaining the basis for arrest rather than establishing blood alcohol concentration.
How Can A Law Firm Help With A Breathalyzer Refusal Case In New Hampshire?
Individuals facing Breathalyzer refusal issues in New Hampshire may consider visiting with an experienced attorney at Friedman & Bresaw, PLLC to learn more about legal rights and possible defense strategies. Attorneys at Friedman & Bresaw, PLLC could help evaluate probable cause, implied consent compliance, and procedural issues in DUI cases.
