Sample DWI Case Evaluation

In order to help you better understand the legal process surrounding DWI in New Hampshire, below is a sample fact pattern and case evaluation.

This is a hypothetical case and not based on a specific client.


John Doe, a 20 year-old male, drove to a friend’s house around 7:00 p.m. on a Saturday night. He reportedly consumed 2-3 beers between the 7:00 p.m. and 9:30 p.m. when he left to drive some of his friends to a local store to get cigarettes. When he arrived at the store, his friends get out of the car and John waits in the vehicle. It just so happens that the local police were conducting an underage drinking “sting” to make sure the store is not selling to minors.

An officer in plain clothes approached John’s vehicle and engages John in conversation through the partially opened window. In response, John rolled his window all the way down and starts to talk to the police officer. The officer had not yet identified himself.

The police officer reportedly detected an odor of alcohol coming from John’s breath. At this point he identified himself as a police officer and asks John to get out of the car to perform some field sobriety tests. The officer conducted three tests and John thinks he does okay, but at the conclusion of the tests the officer arrested John.

He took John to the police department where John agreed to take a breath test. The officer sets up the machine while he is supposed to be observing John for 20 minutes to make sure nothing enters John’s mouth which could throw off the test results. By the time John actually blows into the machine it is after midnight. John blew over the legal limit – a .10.


Because John blew over the legal limit of .08, the NH Department of Safety sought to suspend his license for 6 months. Because John is under 21, the district court also sought to revoke John’s license for a minimum of 12 months and fine him $500 plus penalty assessment. Because John agreed to the breath test, the 6 months imposed by DOS and the 12 months imposed by the court would run concurrently.


When John rolled his window down in response to the officer, an unlawful seizure may have occurred. At the time of the seizure, the officer may not have had a reasonable and articulable reason to believe John had committed a crime or motor vehicle offense. Therefore, any evidence obtained thereafter was suppressed, and the charge dismissed.

Even if the officer was justified when he initially seized John, the officer was only entitled to ask a limited number of questions to either confirm or dispel his suspicion for the initial stop. Because this officer did not observe any problems with the operation of the vehicle or observe any other of the common signs of impairment the officer may not have been justified in expanding the scope of his investigation to include field sobriety tests. Because John had no problem driving, did not initially exhibit blood shot eyes or slurred speech, and because he did relatively well on the field sobriety tests, there may not have been probable cause to arrest.

According to dispatch logs obtained in discovery, John was stopped at approximately 9:30 p.m. but did not take a breathalyzer test until after 1:00 a.m. The State needed to prove that John was either impaired at the time of the incident or had a blood alcohol content of .08 or greater at the time of operation. The passage of approximately 3.5 hours between the time of operation and the breath test creates a serious problem for the State. It takes up to 90 minutes for alcohol to be absorbed into the blood stream, and blood alcohol content can continue to rise for quite some time after consumption. Therefore, John’s blood alcohol content could have been much lower than the legal limit at the time John was driving and on its way up at the time John took the test (a proposition more consistent with the other evidence in the case).

In addition to the passage of time between operation and breath test, the State had a problem with the required 20-minute observation period. In order for a valid test, the breath machine operator must observe the individual for 20 minutes before the individual actually blows into the machine. During the hearing, the Trooper admits that he did not observe John while he was setting the breath machine up for the test. The .10 blood alcohol result might be inadmissible, making the State’s case that much more difficult to prove.


In conclusion, in any DWI case there many issues that can be explored which may result in penalties and/or charges being reduced or in an outright acquittal. We hope this hypothetical has bettered your understanding of the legal process surrounding DWI in New Hampshire. We encourage you to contact a qualified DWI attorney now. Do not delay or you may lose certain important rights. Call now.