It’s a Saturday night in NH and you are driving home. You’ve had a few drinks, but you feel fine to drive. Of course, you are keeping your speed five miles under the speed limit so as to not attract any unwanted attention. Maybe you are coming from an after work party, a friend’s house, or as Garth Brooks sings, “a place you never should have been.” You see the police lights up ahead. And the thunder rolls.
As you get closer you realize that you are not coming upon some accident or a random speed stop. You see that there are cars stopping and being pulled over left and right. You see the road cones and the barricades. You raise your hand to your mouth to try to smell your breath – but all you can smell is the scent of the leather steering wheel.
You realize that you have stumbled upon a sobriety checkpoint trap in New Hampshire. As you slow your car down, you ponder for a moment how much money the local municipality is paying for police overtime. You ask yourself if this checkpoint is really necessary. Aren’t there cold forensic case files these guys could be working on?
Before your thoughts get too far from the moment at hand, an officer walks up to your window. You put the window down. The officer asks where you are heading – not that you asked him for his help – and you are quite certain that you were not lost. He then asks what you have been up to tonight. He asks if you have had anything to drink tonight.
You realize that he can probably smell that you’ve had a drink or two. You don’t want to lie and say you haven’t had anything to drink – but at the same time you aren’t too excited about getting out of the car and standing on one leg as your neighbors, colleagues, and fellow PTA members drive on by.
Depending upon what the officer sees, hears and/or smells, this may end up being a lousy night. Officers are trained to look for certain clues consistent with impairment, such as an admission to “having had a beer” or the observation of “red and glassy eyes” and the ever popular sound of “slurred speech.”
ARE SOBRIETY CHECKPOINTS LEGAL IN NEW HAMPSHIRE?
Sadly yes. At some point the New Hampshire courts decided that your freedom from a baseless seizure could properly be eroded so as to allow random roadside stops. Keep in mind that sobriety checkpoints are a wonderful source for police overtime and commonly a basis to keep state and federal highway monetary grants rolling into your local police departments.
New Hampshire Sobriety checkpoints are often conducted in high traffic areas oftentimes near popular bars and restaurants. While not legal in every state, sobriety checkpoints are often criticized as they amount to seizure without any reasonable suspicion to justify the State action. Usually police cannot stop your car unless they have a reasonable suspicion to believe that a crime is occurring (to include a motor vehicle infraction such as speeding or having a taillight out).
Such is not the case here. Any criticism that sobriety checkpoints constitute an infringement upon your constitutional right to remain free of unreasonable seizures is outweighed by the rationale justifying sobriety checkpoints, namely, that the general deterrent effect of the sobriety checkpoint outweighs your right to remain free of warrantless seizures.
WHAT IS THE STATE REQUIRED TO PROVE TO JUSTIFY THE CHECKPOINT?
Legally, the police must 1) provide advance notice of the roadblock/checkpoint; 2) obtain a Judge’s approval to operate the checkpoint and 3) administer the checkpoint according to guidelines established by the court.
DO I NEED TO PERFORM THE FIELD SOBRIETY TESTS
No. Never. Never. Not at all. Are you getting the hint? Police cannot make you take the field sobriety tests. Field sobriety tests are nearly impossible to pass, even when you are sober. Unless you’re a skilled acrobat (or a mime – mimes deserve whatever fate befalls them) we strongly suggest that you politely, but firmly, tell the officer NO – you are not taking any pre-arrest field sobriety testing. This includes blowing into the preliminary hand held breath test machine. This also includes standing on one leg, touching his pen, touching your nose, tapping your feet, counting backwards, singing songs, doing math, picking up coins, doing choppy turns, watching his pen, recalling the names of your children or former spouses. Nothing. No tests – is the way to go.
WHAT DO I DO IF I AM ARRESTED FOR DWI?
Driving While Intoxicated cases are complex. You need to contact an experienced New Hampshire DUI attorney. Attorneys Justin Shepherd and Mark Osborne are happy to sit down with you and review all your options at no cost whatsoever.