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carpdog112 t1_j6fhfu4 wrote

Reply to comment by [deleted] in NH DUI Lawyer Recommendations? by Individual_Moose602

I believe you can refuse the preliminary breath test (and field sobriety test in general) without penalty (other than winning a free ride down to the station or hospital for official testing).

See- https://www.gencourt.state.nh.us/rsa/html/xxi/265-a/265-A-15.htm

"Failure to submit to the test shall not constitute a violation of this chapter"

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beagletronic61 t1_j6fjggn wrote

Good catch.

But the second test is always waiting for you so if you have been drinking, you are just buying yourself 20 more minutes of delusion.

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carpdog112 t1_j6fp4ym wrote

The PBT can NEVER help you. If the officer wants to bring you down to the station for further physical testing they absolutely will. You can blow under 0.08 or even a 0.0 and still be brought in if you fail the officer's "subjective tests".

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beagletronic61 t1_j6fqnyd wrote

The subjective tests WHEN ADMINISTERED PROPERLY are remarkably accurate…a veteran officer can usually get pretty close to your BAC with the visual acuity test (follow the pen with just your eyes, officer notes the frequency with which your twitches as it tracks laterally).

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[deleted] t1_j6gwv5v wrote

[deleted]

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beagletronic61 t1_j6ido61 wrote

The accuracy of the subjective tests is more/less binary; above or below legal limit. The visual acuity test adds nuance to the extent to which the subject is intoxicated in excess of the legal limit. I’m not suggesting “some beat cop” can beat you or any physician at a physical exam. I’m also not suggesting anyone rely on this test alone…when a police officer pulls someone over after 12:30 AM, detects an odor of alcohol and slurred speech, and puts the driver through the visual acuity test (which also requires them to stand in front of the officer and allows them to observe the subjects balance, respiration, as well as their response to the test itself) they’ve got a pretty good justification to make an arrest for suspicion of OUI.

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carpdog112 t1_j6frbnc wrote

The subjective tests can say whatever the officer wants them to say and given that they hold just as much weight as the PBT for hauling you in for further testing is my point. Passing the PBT doesn't win you anything.

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beagletronic61 t1_j6fsdwg wrote

Your point is well taken;

“Yeah, you failed…you have the right to remain silent.”

“How did I fail?

“You’re eye…or something…also the alphabet thing…and now you are talking back to me…OFFICER DOWN!”

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GreatGrandaddyPurp t1_j6iaizy wrote

The only remarkable thing about making someone do circus tricks on the side of the road to see if they're drunk is that it's still a legal standard.

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[deleted] t1_j6fjifb wrote

[deleted]

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carpdog112 t1_j6fleqd wrote

Implied consent and refusal are both covered under RSA 265-A4 and RSA 265-A14. Given that RSA 265-A15 says:

"Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 265-A:4. The police officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 265-A:4."

Unless something to the contrary explicitly indicates that refusal of the preliminary breather causes a license suspension I would have to believe that RSA 265-A15 protects against administrative punishments for refusal of the PBT.

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[deleted] t1_j6foyfg wrote

[deleted]

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carpdog112 t1_j6fplgp wrote

By all means, if you can find something specific that states refusal of the PBT can result in a suspension of your license - as opposed to refusal of the desktop breathalyzer, urine, or blood let me know. But as it stands, the RSA makes a clear distinction between the PBT and the physical tests prescribed under implied consent.

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