Pending state legislation tackles what police and prosecutors say is a significant problem — motorists who refuse to take a blood alcohol test after being stopped on suspicion of drunk driving.
In New Hampshire, the legal limit for blood alcohol concentration for drivers 21 and above is 0.08 percent. According to the Mayo Clinic, the average man can reach that level with five drinks in two hours; women, four drinks.
This concentration can be determined by a test of breath, urine or a blood sample.
N.H. Senate Bill 620, which the Senate passed on a voice vote in January, would increase the required driver’s license suspension for refusing such a test from 180 days to 12 months.
The House Criminal Justice and Public Safety Committee on Friday unanimously passed and sent to the full House an amended version of the bill that would set the suspension at nine months.
Proponents of the bill say the 180-day penalty is short enough that many people are opting not to take the test, leaving prosecutors without key evidence in court.
Opponents say people have every right not to take the test, and that boosting the penalty to 12 months seems punitive and a possible violation of the Constitution.
A first-offense conviction for driving under the influence carries a nine-month driver’s license suspension, although this can be reduced to three months in some cases if the person enters into a program aimed at preventing reoffending.
There is also a fine of up to $1,200.
State Police, the governor’s office, people who have lost loved ones in a drunk driving accident, and others testified in favor of SB 620.
Some said that the 180-day suspension presents a loophole, or an incentive not to take the test.
Sen. Donovan Fenton, D-Keene, is a co-sponsor of SB 620.
“This closes a gap in our system,” he said Friday. “Refusing a test shouldn’t be a loophole, it should be a red flag.”
Gov. Kelly Ayotte also supports the bill. Similar legislation passed the Senate last year and in 2024, but each time died in the House.
She said in a Wednesday news release that N.H. Department of Safety statistics show that of 658 impaired-driving arrests made statewide Jan. 1-March 11, 494 people, or 75 percent, refused testing.
“Our refusal rate is outrageous,” Ayotte said. “We must close the loophole that makes our roads less safe and hold impaired drivers accountable for putting people at risk. Together, we can save more lives on our roads.”
She also said that since 2018, the Granite State has lost more than 260 lives to alcohol-related crashes.
Defense attorney Robert Moses of Amherst opposes this legislation.
He said in an interview Friday that he has empathy for those impacted by the problem of drunk driving, but doesn’t think that upping the penalty for refusing a blood alcohol test will solve that problem.
“I really don’t think it will make the world safer,” he said. “People are human and they screw up and that includes all walks of life.”
The reason many people don’t take the tests, Moses said, is that Granite State motorists are savvy and realize that this is voluntary, as is taking a field sobriety test, as is answering questions, although you must present your license and registration.
“They also don’t trust instruments used to do these tests, which often have been shown to be inaccurate,” he said. “People have rights and it can’t be held against them if they exercise those rights.”
He added that by taking the test, “you may find yourself giving evidence to the authorities.”
Moses also questioned the constitutionality of the bill, noting that the Senate version calls for suspending a license for three months longer than it would be suspended if one were convicted of a first offense of driving under the influence.
He said this could violate the Constitution’s 8th Amendment guarantees against excessive fines, or cruel and unusual punishments.
“I’ve told legislative committees that if it passes, the first time I get a client who is affected by this, I will make a motion to dismiss as an Eighth Amendment violation,” Moses said.
Rick Green can be reached at 603-352-1234, extension 1435, or rgreen@keenesentinel.com.
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