New Hampshire DWI Attorney
DWI Lawyers With Offices in Concord, Dover & Manchester, NH
The criminal defense attorneys at Shaheen & Gordon, P.A. share the goal of aggressively defending DWI cases. Our DWI defense team is comprised of former prosecutors and seasoned defense lawyers who have been trained to understand how the State builds its cases and to apply that knowledge to securing the best available results in drunk and impaired driving cases. Our approach is to actively prepare for trial while exploring opportunities to resolve each case in a manner that avoids long-term license losses and, in certain cases, incarceration.
We defend drunk driving and impaired driving cases in New Hampshire, Maine, and Massachusetts. In New Hampshire, charges for impaired driving are typically referred to as driving while intoxicated (DWI), but other terms are also are also commonly used to describe this offense. These include driving under the influence (DUI) or operating under the influence (OUI).
Our DWI lawyers appear in court week in and week out, as well as in administrative hearings. They understand the draconian impact that a simple license loss may have on employment matters and family obligations. With this understanding as a backdrop, they work to create opportunities to resolve cases reasonably, but stand ready to take cases to trial when necessary. Our DWI attorneys regularly try cases and are proud of their results, regularly securing of "not guilty" verdicts on behalf of our clients.
Defending these cases requires an understanding of the complicated laws that apply to drunk driving cases, the administrative license suspension process, the manner in which the State relies on standard field sobriety testing (SFST) to build its case and the scientific underpinnings of DWI cases. Our work doesn't end when the case is over in court. We educate our clients regarding issues relating to reinstatement of driving privileges thereafter.
DWI Practice Areas
Administrative License Suspension Process
New Hampshire law imposes serious consequences in impaired driving cases. Administrative penalties and court imposed sentences follow DWI convictions. New Hampshire does not offer "hardship" or "Cinderella" licenses. As such, we work to minimize long term license losses for our clients.
A standard first-offense DWI is a crime. The court imposed penalty for a first offense DWI conviction is changing in 2013 and requires completion of an Impaired Driver Intervention Program ("IDIP") as well as submission to an alcohol and drug abuse screening within 14 days of a conviction. If concerns for substance abuse surface from that screening, a full substance use disorder evaluation is required within 30 days of conviction. Recommendations from that evaluation must then be followed. A first offense DWI conviction results in a court imposed license loss from between 9 months to 2 years, but 6 months of that license loss may be suspended upon completion of all programing requirements.
There are additional administrative penalties in DWI cases. Refusing requested breath or blood testing or submitting to a breath or blood test with a breath alcohol content (BAC) exceeding a 0.08%, will result in an administrative license loss of six months for a first offense. There is a 2 year administrative license loss for subsequent offenses.
Understanding this administrative process is important in defending DWI cases in New Hampshire. Within 30 days of an arrest, our lawyers demand an administrative hearing in order to object to the six-month suspension. This is strategically important for several reasons. First, we wish to contest the administrative penalty. Additionally, the administrative hearing provides our attorneys with an important opportunity to negotiate the case with police officers and prosecutors. Where those negotiations don't bear fruit, the administrative hearing permits our defense attorneys a crucial opportunity to confront the arresting officer, cross examine him or her and begin building a record which sets the stage for effective trial preparation.
New Hampshire law permits arresting officers to request a breath, blood or urine test in drunk driving and impaired driving cases. The officer has the discretion regarding which test to request. Law enforcement often rely on breath test evidence in DWI cases.
Hand held breath tests, known as Preliminary Breath Tests ("PBTs") are occasionally administered by law enforcement on the road side. There are evidentiary limitations with PBT testing and suspects are not required to take them. The state's own training materials recognize concerns for the accuracy of PBT tests. Various PBT owners' manuals further call upon officers to inquire about the last time that a suspect had anything to eat or drink prior to administering a PBT test. They further call for a waiting period prior to administering a PBT test.
Officers regularly fail to take these steps prior to PBT testing, resulting in defenses to this type of testing in court. There are other challenges to PBT testing as well. In criminal cases, defendants have rights to independent testing and analysis of scientific evidence. However, PBT tests do not create second breath samples, depriving those charged in DWI cases of conducting additional testing to confirm or dispel PBT breath results. Our DWI attorneys have relied on this defect to challenge and suppress PBT evidence in court.
At the police department or State Police barrack, law enforcement typically request a further breath test. In New Hampshire, they rely on an intoxilyzer 5000 machine, a "breathalyzer" machine. When a person consumes alcohol, any alcohol that is not processed by the liver the first time through eventually cycles through the bloodstream and to the lungs, where a portion evaporates and becomes evident on the person's breath. Breathalyzer machines measure the volume of alcohol vapor in a person's lungs to determine their BAC.
Proper administration of this breath test requires a 20 minute waiting period, must be conducted by a certified breath test operator and the machine must be properly maintained and calibrated. Refusal to take the breath test at the station or submitting to this breath tests with a result exceeding a BAC of 0.08 will result in an administrative suspension of 6 months for a first offense and 2 years for a subsequent offense. These administrative penalties are in addition to the penalties for a DWI conviction in court. The legal team at Shaheen & Gordon, P.A. understands the sensitive nature of breath test evidence, examines the details of breath test results and may determine whether or not you are the victim of police misconduct or a mechanical error. We defend DWI cases week in and week out in courts and administrative proceedings and regularly challenge DWI charges based on breath test results.
The impact of a DWI conviction is serious in any case. For those holding a Commercial Driver's License (CDL), a DWI case can result in serious professional consequences, including job loss. Drunk driving standards and penalties are stricter for commercial drivers, such as truck drivers and bus drivers. Unlike the standard 0.08% BAC required for a DWI arrest of a normal motorist, anyone who holds a commercial drivers' license (CDL) and is driving while intoxicated in their line of work can be arrested with a mere 0.04% BAC. Sharper administrative penalties apply to CDL holders. A refusal of a breath test for a CDL holder, results in a 1 year administrative suspension.
A second refusal results in a life time CDL suspension. Any DWI court conviction, even in a non-commercial vehicle, will result in a 1 year CDL license loss. A second offense conviction results in a life time CDL license loss. Based on these penalties, a garden variety DWI can turn into a life altering event for those holding a Commercial Driver's License. Our firm strives to supply its clients the best DWI defense attorneys and our team works to minimize and avoid the impact that a DWI conviction can have on those that rely on driving privileges to maintain employment and support their families.
Our firm can investigate your charges and arrest to determine whether or not there were adequate grounds to arrest you. Breath and blood test results can be faulty due to misconduct or mechanical error, and the results of field sobriety tests can be affected by a medical condition, fatigue or fear. A skilled New Hampshire lawyer can fight your charges and protect you from losing your license and your job.
Drivers' License Restoration
Our representation does not end with the administrative process and the conclusion of a case in court. Our DWI lawyers educate our clients regarding restoring their driving privileges when they are eligible to do so. Following a DWI conviction, restoration of driving privileges typically requires payment of a restoration fee, proof of program completion and an SR-22, which is proof that your privilege to drive is insured even after a DWI conviction. These restoration obligations may differ, however, depending on the case. Drivers under the age of 21 must typically attend a further administrative hearing in order to reinstate driving privileges after a DWI conviction. Our DWI defense team can help in this process.
Requesting an administrative hearing is critical to defending drunk driving and impaired driving cases. Law enforcement typically requests a breath or blood test during impaired driving investigations. Refusal of a breath or blood test or submission to a test with a breath alcohol content exceeding a 0.08 results in an administrative license loss. The administrative suspension for a first offense is 6 months. It is 2 years for a second or subsequent offense. This penalty begins to run within 30 days from the time that the administrative license suspension form is served on the suspect and even before a conviction in court.
Accordingly, an accused driver has only 30 days to operate a motor vehicle in the State of New Hampshire on a temporary privilege to drive. Within these 30 days, our attorneys request an administrative hearing at the Department of Safety in order to contest the administrative license loss. The Department of Safety schedules these hearings quickly and they provide an important strategic opportunity in DWI cases. Our attorneys use the administrative process to begin to negotiate the case, often resulting in offers by the state to drop the administrative penalty. Where these negotiations falter, the administrative hearing gives our DWI lawyers an opportunity to confront and cross examine the arresting officer on the record.
By doing so, we are able to ask the officer about the reason for the stop, performance on Field Sobriety Testing and the administration of any breath or blood tests. Confronting the officer with these questions can lay the groundwork for a more effective defense in court down the road should a trial become necessary. Administrative DMV hearings are held at the Department of Safety, not in a courtroom, and are presided over by administrative hearing examiners and not judges. Our attorneys blend the administrative process into their strategy to fight DWI cases and their assistance is of critical importance in fighting DWI charges.
Our defense attorneys regularly represent clients in a wide range of administrative hearings relating to driving privileges. In DWI and other motor vehicle contexts, the Department of Safety regularly conducts hearings relating to habitual offenders, youth operators, points suspensions, commercial driver's license holders and possession of alcohol.
New Hampshire has a strict habitual offender law. Three major motor vehicle violations within five years; two major and four minor motor vehicle violations within five years; one major and eight minor motor vehicle violations within five years or twelve minor motor vehicle violations within 5 years typically results in certification as a habitual offender. The New Hampshire Department of Safety will hold a certification hearing and a decertification hearing in order to determine habitual offender status and assess a period of license loss. Habitual Offenders suffer a license loss from between one to four years. Operation after certification as a Habitual Offender is a Felony and is punishable by a minimum mandatory sentence of one to five years of imprisonment.
Commercial Driver's License holders are held to higher standards and convictions for motor vehicle offenses may result in suspension of commercial driver's license privileges. However, NH RSA 263:95 states that "[p]rior to disqualifying a driver under this section, the commissioner shall provide the driver with notice and an opportunity for a hearing." Our lawyers regularly appear at Department of Safety hearings to contests suspensions of CDL privileges.
Youth operators or drivers under the age of 21 years old suffer license losses for simple motor vehicle violations. A first offense results in a 20 day license loss, a second offense results in a 45 day license loss and a third offense results in a 90 day license loss. However, a youth operator may request a hearing prior to the imposition of such a license loss and our lawyers can help. By regulation, the Department of Safety considers a number of factors when determining if such a license loss should apply, including the length of time that an operator has held his or her license, the seriousness of the offense and other extenuating circumstances such as the impact on a commute to school or work. We regularly work with young drivers to avoid or minimize these license losses in administrative hearings.
New Hampshire has a demerit point system resulting in suspension of driving privileges based on the accumulation of points for motor vehicle offenses. Our lawyers regularly evaluate motor vehicle records, understand the law that relates to points and assist clients to avoid and minimize license losses based on points.
Convictions for underage possession of alcohol may result in an administrative license loss in New Hampshire even where the conviction had nothing to do with driving. Effective representation in such cases can avoid this administrative license loss. Our defense attorneys regularly avoid this conviction altogether through negotiation or trial and where there is a conviction, they regularly succeed in convincing the prosecutor and court to stamp the back of the complaint to avoid this administrative suspension.
Even after you have been convicted of driving under the influence of alcohol or drugs, you may be able to file an appeal to have your case reconsidered. In New Hampshire, first offense DWI cases are tried before the circuit court and decided by a judge, not a jury. Our DWI attorneys pursue appeals from first offense cases for legal error and insufficient evidence to the New Hampshire Supreme Court. Aggravated and subsequent DWI convictions have exposure to mandatory jail sentences. These cases are tried in the first instance before a circuit court judge.
Convictions may be appealed, however, for a jury trial before the Superior Court. From there, any legal errors may form the basis of an appeal to the New Hampshire Supreme Court. Our DWI defense team can advise you of your appellate rights, identify legal errors and pursue appeals where possible. We understand that effective DWI defense includes both exceptional trial work and appellate advocacy. Our criminal lawyers have pursued appeals at all levels of the criminal justice system and stand ready to defend your case at all stages of the process..
Law enforcement aggressively investigates and prosecutes DWI cases in New Hampshire. DWI investigations typically begin with officer observations of a vehicle in motion, continue through an officer's first contact with a suspect and then field sobriety testing. Arrests for DWI must be made based on probable cause or some proof that a person has committed the offense of driving under the influence of drugs or alcohol or both. Our attorneys are regularly confronted with close calls, cases where law enforcement escalate what should be considered a simple motor vehicle stop to a DWI arrest and prosecution. Our DWI team regularly calls into question whether probable cause really existed to ground an arrest. Effective DWI defense requires consideration of all phases of a DWI investigation and where there is insufficient basis to ground an arrest, our DWI lawyers are ready to pursue the issue through negotiations and in court.
The first step in the DUI process is a police stop. Local officers and state troopers may stop a vehicle where there is reasonable suspicion that the operator has committed a motor vehicle violation or other criminal offense. Police officers are trained to make observations of potential driver impairment while observing a vehicle in motion. There are series of clues for driver impairment that officers are trained to observe, including drifting and weaving to erratic speed and disregard for traffic signs and signals. Once an officer makes a DUI stop, he or she makes contact with the driver, noting odor of alcohol, slurred or deliberate speech and glassy or blood shot eyes.
Police tend to ask questions regarding the consumption of alcohol or drugs. Where suspicion of impaired driving exists, officers will request that the driver exit the vehicle in order to submit to Field Sobriety Testing (FSTs). Certain of these tests are standardized and include the Horizontal Gaze Nystagmus Test (HGN), a nine step walk and turn test and one leg stand test. Police officers are trained to observe clues for impairment during each of these tests. They collect these clues to establish probable cause to make an arrest and request that a suspect submit to a breath or blood test. Refusing this test or submitting to a test yielding an alcohol content exceeding a 0.08 will result in an administrative license loss. Additionally, police will likely pursue criminal charges for Driving While Intoxicated, which must be defended in court.
Our criminal defense attorneys defend DWI cases throughout New Hampshire, southern Maine and Northern Massachusetts, regularly delivering victories after trial to our clients. Our DWI lawyers have been trained in the administration of field sobriety testing and use that training to challenge DWI charges. Our team includes former prosecutors, they understand how the state builds its DWI case and rely on that experience to pick those cases apart. There are a number of defenses and no case is the same. Physical limitations, mental health concerns, age, clothing, weight and officer intimidation all may play a role in the contesting field sobriety testing and defending DWI cases. Our DWI lawyers understand the impact of a criminal conviction and the consequence of a license loss on our client's professional and family obligations and work with our impaired driving clients both to build an effective defense and plan for the future.
DWI Penalties - First Offense
Driving under the influence of drugs or liquor is a crime in New Hampshire. RSA 265-A:2 prohibits driving or attempted driving a vehicle on a way in the State of New Hampshire while under the influence of intoxicating liquor or any controlled drug or a combination of intoxicating liquor and controlled drugs. A breath or blood result is not required for the State to make its case. However, this statute states that a person is considered impaired where they have an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.
DWI cases result in both a court case and an administrative case before New Hampshire's Department of Safety. DWI penalties are defined in RSA 265-A:18 and make clear that a first offense conviction in court is a crime, a Class B Misdemeanor. However, the statute permits that the criminal offense may be reduced to a Violation, which is a non-criminal event, after one year from the conviction date. The penalties for a DWI conviction are changing in 2013 and our DWI defense team has stayed on top of these changes. A first DWI conviction calls for a minimum license loss of 9 months and a maximum license loss of 2 years.
However, 6 months of this penalty may be reduced based on completion of required alcohol programing, leaving a 90 day minimum license loss for cases with the minimum sentence. Following a DWI first offense conviction, the court makes a referral to an IDCMP for an alcohol and drug abuse screening within 14 days of conviction and, if testing demonstrates the likelihood of a substance use disorder, a further full substance use disorder evaluation is required within 30 days of conviction. Recommendations for treatment from these evaluations must be followed. Additionally, a person convicted of a first offense DWI must complete the Impaired Driving Intervention program, which is a 20 hour alcohol education program plus any recommended follow up. There is also a fine of $500. Where the court thinks it appropriate, it may also require an ignition interlock device and random urinalysis.
Separate from the court penalties, a DWI arrest also triggers the Administrative License Suspension process through the New Hampshire Department of Safety. There is a 6 month administrative license loss for a first time refusal of a breath or blood test or where such a test is taken and results in an alcohol content exceeding 0.08. In the case of a refusal, the administrative suspension is added to the court imposed license loss. In a case where a client submits to the requested testing, the administrative penalty runs at the same time as the court imposed license loss.
After an arresting officer or trooper serves administrative license suspension paperwork on a client, he or she may continue to operate on a temporary basis for 30 days. Within this same 30 day period, our attorneys request an administrative hearing to object to this license loss. This hearing occurs at the New Hampshire Department of Safety and is strategically important in defending DWI cases. The hearing often provides our attorneys a valuable opportunity to negotiate. It also allows our lawyers to question the arresting officer or Trooper on the record, developing important theories for defense should the case proceed to a trial in court.
DWI Consequences - Subsequent Offense Convictions
The penalties for subsequent DWI convictions are set out in RSA 265-A:18 and include required jail sentences. The penalties relating to Subsequent Offense DWI convictions are changing in 2013, calling for increased jail sentences, making the aggressive defense of these cases all the more critical to defending our clients.
A second offense DWI conviction within two years of the first conviction is a Class A Misdemeanor and calls for a minimum 60 day jail term, fine of $750 plus Penalty Assessment and alcohol and/or drug assessment and treatment. Thirty days of this 60 day jail term may be suspended, however, based on scheduling of a substance use disorder evaluation within 30 days of release, completion of the required substance use disorder evaluation within 60 days of release and compliance with the service plan.
Failure to comply with the program developed from this evaluation will result in the imposition of the suspended portion of this sentence. In addition to these penalties, subsequent offense DWI convictions require installation of an ignition interlock device for one to two years following reinstatement of driving privileges. In sum, this means that persons convicted of a second offense within two years of the first must serve 30 days in jail with the risk for an additional 30 days in jail based on failure to meet program obligations. Subsequent offense convictions also typically result in a two-year administrative suspension.
A second offense DWI conviction within 10 years of the first offense, but outside of two years from the first conviction is a Class A Misdemeanor, calls for a minimum sentence of 17 days in the House of Corrections, a 3 year license loss, a fine of $750 plus Penalty Assessment and alcohol and/or drug assessment and treatment. Twelve days of this jail sentence may be suspended, however, based on scheduling of a substance abuse disorder evaluation within 30 days of release, completion of the required substance use disorder evaluation within 60 days of release and compliance with the plan for treatment developed during this evaluation.
Failure to comply with the treatment plan, may result in the imposition of the suspended 12 days in jail. In addition to these penalties, subsequent offense DWI convictions require installation of an ignition interlock device for one to two years following reinstatement of driving privileges. In sum, this means that those convicted of a second offense DWI within 10 years of a first conviction, but out outside of 2 years from the first conviction, must serve a minimum of 5 days in jail and risk an additional 12 days in jail based on non-compliance with treatment obligations. Subsequent offense convictions also typically result in a two-year administrative suspension.
Third Offense DWI Convictions are treated as a Class A Misdemeanor, require indefinite revocation of driving privileges, a fine of $750 plus Penalty Assessment, 180 days at the House of Corrections and alcohol and/or drug evaluation and treatment. Of this 180 day jail sentence, 150 days may be suspended based on scheduling a substance use disorder evaluation within 30 days of release, completion of the required substance use disorder evaluation within 60 days of release and compliance with the plan developed. The license loss is indefinite, however, a person may petition the court to reapply for a driver's license within 5 years. Where the person shows good cause for restoration, the court may grant eligibility. After a court grants eligibility, the person may apply to the Department of Safety for restoration of driving privileges where the person must demonstrate compliance and completion of program obligations and that all fees have been paid. Fourth Offense DWI convictions are felonies and discussed under the section entitled "Felony DWIs."
There are several collateral consequences to consider in DWI cases as well. The accumulation of multiple major motor vehicle driving convictions inside a five-year period may result in habitual offender consequences including long-term license losses and jail. Further, DWI convictions result in six points against a New Hampshire privilege to drive. Accordingly, the defense of DWI cases requires a careful examination of our clients' motor vehicle record to guard against these difficult consequences.
Aggravated DWI penalties are likewise harsh. Certain Aggravated DWIs are treated as felonies calling for substantial jail and prison terms and are addressed in the section of our site relating to Felony DWIs. However, the typical charge for Aggravated Driving While Intoxicated arises because of a breath or blood result of twice the per se limit or a 0.16, an allegation of impairment coupled with speed in excess of 30 miles per hour over the limit or where the person attempts to elude the police officer or trooper. The court imposed penalties for an Aggravated DWI are changing substantially in 2013. Most Aggravated DWIs are a Class A Misdemeanor, resulting in a minimum 17 day sentence at the House of Corrections, an 18 month license loss, a fine of $750 plus Penalty Assessment and alcohol and/or drug abuse evaluation and treatment.
However, 12 days of this House of Correction sentence may be suspended based upon scheduling of a substance use disorder evaluation within 60 days of release and compliance with the service plan developed. Failure to meet program recommendations may result in the imposition of the suspended 12 days in jail. Six months of the court imposed license loss may also be suspended based on compliance with the service plan and installation of an ignition interlock device for the period of the suspension and/or one to two years. In sum, this means that a person convicted of a standard Aggravated DWI must serve a minimum of 5 days in jail and a one year license loss and risk the further imposition of the suspended 12 days in jail and 6 months of a license loss based on failure to meet program obligations. Aggravated DWI cases also typically involve an administrative license loss of 6 months for a first offense.
There are several collateral consequences to consider as well. The accumulation of multiple major motor vehicle driving convictions inside a five-year period and may result in habitual offender consequences including long-term license losses and jail. Further, DWI convictions result in six points against a New Hampshire privilege to drive. Accordingly, the defense of DWI cases requires a careful examination of our clients' motor vehicle record to guard against these difficult consequences.
DWI Felony Cases
Felony DUI charges occur when a person commits a fourth DWI, or is charged with Aggravated DWI based on a collision resulting in serious bodily injury. A fourth DUI conviction is a Felony in New Hampshire, punishable by a lengthy jail or prison sentence, a fine of up to $4,000 plus Penalty Assessment, an indefinite license loss and substance abuse evaluation and treatment. While a sentencing court may impose a substantial stand committed prison sentence in the case of any Felony, a fourth offense DWI calls for a mandatory minimum jail sentence of 180 days at the House of Corrections.
Of this 180 day jail sentence, 150 days may be suspended based on scheduling a substance use disorder evaluation within 30 days of release, completion of the required substance use disorder evaluation within 60 days of release and compliance with the plan developed. The license loss is indefinite; however, a person may petition the court to reapply for a driver's license within 7 years. Where the person shows good cause for restoration, the court may grant eligibility. After a court grants eligibility, the person may apply to the Department of Safety for restoration of driving privileges where the person must demonstrate compliance and completion of program obligations and that all fees have been paid.
Aggravated DWIs become Class B Felony offense where there is a collision resulting in serious bodily injury to the person driving or another person. A Class B Felony is punishable by a sentence of up to 3 ½ to 7 years in prison and a $4,000 fine, however, there are some minimum mandatory penalties in the case of a Felony Aggravated DWI. There is a minimum 35 day jail sentence in the House of Corrections. Twenty one days of this sentence shall be suspended upon scheduling a substance use disorder evaluation within 30 days of release, completion of the substance use disorder evaluation within 60 days of release and compliance with the service plan developed. There is also a minimum 18 month license loss, which may be reduced to 12 months based upon compliance with these treatment requirements and installation of an ignition interlock device for the period of the suspended sentence and/or 1 to 2 years. There is a minimum fine of $1,000 plus Penalty Assessment. The court may require random urine screening. There is also a 6 month administrative suspension imposed for a first offense.
Felony convictions must be taken seriously. There are several collateral consequences which flow from a Felony conviction. Employment applications, loan applications and firearm ownership may all be impacted by Felony level convictions. The impacts of being a "felon" may be lifelong, substantially redefining a person's liberty, family and employment circumstances. Where the consequences are so grave, our attorneys can help. We work with clients and prosecutors to develop a plan and a path to mitigate against these consequences where possible. In other instances, we try our cases, applying our decades of trial experience to your charge.
Expungements - DWI
New Hampshire state law allows for expungement or "annulment" of certain criminal convictions, however, those laws apply differently to DWI convictions. RSA 265-A:21 describes when a person may seek to annul a DWI conviction. Unlike an average Misdemeanor offense, a person may not seek annulment of a DWI conviction for 10 years after the date of conviction. Like any offense, a DWI can be stigmatizing and strain professional and personal relationships. We regularly assist clients seeking to "clean up" their criminal record and this includes clients wishing to expunge the record of a DWI conviction.
Field Sobriety Tests
New Hampshire police officers and state troopers have been trained to conduct a series of standardized field sobriety tests or FSTs on the roadside. In turn, our defense attorneys have also been trained on these tests and rely on that training to highlight the imperfections in such testing and create reasonable doubt in our cases. There are three standardized Field Sobriety Tests which officers rely upon to establish Probable Cause to make a DWI arrest and then use to prove operator impairment. There are several additional tests that our defense attorneys also see from time to time.
The standardized tests include the Horizontal Gaze Nystagmus (HGN) test, the 9 step walk and turn test (WAT) and the One Leg Stand test (OLS). Officers are trained to observe a series of clues during each of these tests and then rely on those clues to assert that an individual is impaired. Understanding the administration of these tests is crucial to an effective DWI defense. Our attorneys demand and then analyses the police report, compare it to the Standard Field Sobriety testing manual and identify those clues that were not present during testing. They then confront the State's case, often making powerful arguments that performance on Field Sobriety Testing was far better than the officer would make it seem based upon a reading of the police report, alone.
The horizontal gaze nystagmus test (HGN), involves an officer conducting sweeps with a pen, flashlight or finger back and forth in front of a suspect's eyes. Each sweep in this test should be timed and has a specific starting and stopping point. The scientific underpinnings of this test have been challenged in court. While New Hampshire Courts will admit this test at trial, the State bears the burden of establishing that the officer was trained to conduct it and that it was properly administered. The case law further indicates that the State cannot rely on this test, alone, to establish impairment beyond a doubt. It regularly occurs that an officer has difficulty describing the administration of this test and, where this is the case, our attorneys are ready to move to suppress the results. Our attorneys understand the nuances of this test and rely on that understanding to challenge this evidence.
Law enforcement also relies on a nine-step walk-and-turn (WAT) test and a one-leg stand (OLS) test to support DWI cases. Each of these tests identifies a series of clues that are consistent with impairment. To attack this type of testing, our attorneys thoroughly confront law enforcement with the various clues that they are trained to observe, but that might not be present in any given case. For instance, the nine-step walk-and-turn test, includes a flurry of clues, including: starting the test early, stepping off the line, stopping, counting incorrectly, failing to hit heal to toe, using arms for balance, and conducting an improper turn. Likewise, the One Leg Stand test includes clues for touching down before the expiration of 30 seconds, using arms for balance, hopping and swaying. By pointing out the clues not present, we create questions regarding the strength of the State's impairment case.
Defending motor vehicle cases requires much more than a zealous courtroom defense. It also requires an understanding of the collateral consequences which may follow a conviction. New Hampshire has a harsh Habitual Offender law, calling for the certification of those with a serious motor vehicle record as a Habitual Offender, resulting in the imposition of a 1 to 4 year license loss. The accumulation of major and minor motor vehicle violations results in Habitual Offender certification pursuant to RSA 259:39. Habitual Offender certification results from 3 major motor vehicle driving violations in a period of five years; a combination of 2 major and 4 minor motor vehicle driving violations in 5 years; a combination of 1 major and 8 minor motor vehicle driving violations in 5 years; or 12 minor motor vehicle driving violations in five years.
Major offenses include, but are not limited to, convictions for DWI, Reckless Operation, Negligent Operation, Operation After Suspension and Disobeying a Police Officer, among others. Those certified as a Habitual Offender receive a 1 to 4 year license loss following a hearing at the Department of Safety. Operation after certification as a Habitual Offender is a Felony offense, calling for a minimum mandatory 12 month jail or prison sentence. Exposure to Habitual Offender certification can define the strategy in a case. For instance a simple DWI charge may become much more serious where a conviction could also result in Habitual Offender status. Our attorneys account for the Habitual Offender law, identify cases with Habitual Offender exposure and fashion a plan to address these serious consequences, often taking cases to trial with the plan of avoiding a conviction and, in turn, avoiding certification as a Habitual Offender.
Major Motor Vehicle Offenses
New Hampshire's Habitual Offender Law categorizes major and minor motor vehicle offenses. Major motor vehicle offenses include DWI, Reckless Operation, Negligent Operation, Operation After Suspension and Disobeying a Police Officer, among others. As majors, convictions for these offenses can trigger certification as a Habitual Offender, resulting in a 1 to 4 year license loss. There are also enhanced demerit points that may apply for convictions to certain major motor vehicle driving offenses. Operation of a motor vehicle after certification as a Habitual Offender is a Felony and calls for a one year minimum jail or prison sentence. Our attorneys know the motor vehicle code, size up their motor vehicle cases and account for both points and habitual offender exposure when defending major motor vehicle driving offenses, such as DWI. We develop a strategy to defend cases where such exposure exists, taking cases to trial where necessary.
Original License Suspension
For our youngest clients, a simple minor motor vehicle driving violation, such as speeding, may result in significant penalties, including a license loss. Our motor vehicle defense attorneys understand full well that such a license loss doesn't just punish the driver, but also his or her family, burdening efforts to commute to school and work. In New Hampshire, youth operators or drivers under the age of 21 years old suffer license losses for simple motor vehicle violations pursuant to RSA 263:14. A first offense results in a 20 day license loss, a second offense results in a 45 day license loss and a third offense results in a 90 day license loss. The best defense to these license losses is to avoid a conviction altogether.
Our lawyers regularly defend young drivers in court even in the most straightforward motor vehicle cases. Through negotiation and trial, where necessary, we often avoid convictions. Where convictions do occur, a youth operator may request a hearing prior to the imposition of such a license loss and our lawyers can help. By regulation, the Department of Safety considers a number of factors when determining if such a license loss should apply, including the length of time that an operator has held his or her license, the seriousness of the offense and other extenuating circumstances such as the impact on a commute to school or work. We regularly work with young drivers to avoid or minimize these license losses in administrative hearings.
New Hampshire is a popular destination for tourists, business people and students, many of whom are licensed in another state, but operate a motor vehicle here. When a person is charged with DUI in New Hampshire, but their license was issued in another state, they will still be prosecuted in New Hampshire, risking a New Hampshire court imposed and administrative license losses. This very often results in consequences at home as well. New Hampshire is part of the Interstate Driver License Compact along with most other of our sister states. Among other things, the purpose of the Compact is for one state to recognize convictions that issue from others. The compact typically requires that one state give the same effect to the conduct that it would as if the conduct had occurred in that state.
Simply stated, this means that the offender may also be penalized under the laws of their home state, resulting in compounded penalties. The compact specifically applies to DWI cases. Therefore, it is important to understand the New Hampshire risks of a DWI conviction as well as the risks that will flow from that conviction in the driver's home state. We regularly defend impaired driving cases on behalf of Massachusetts, Maine and Vermont drivers as well as visitors from states far and wide. Based on this experience, we can assist a client to understand the New Hampshire consequences and, in certain cases, the likely exposure to a conviction at home. Some cases require that a client further consult with an attorney in their home state in order to appreciate the exposure that a New Hampshire DWI or other motor vehicle offense will have on their privilege to drive.
In any case, it is critical for our lawyers to both defend the case and assist a client to anticipate the likely impact that a DWI conviction and administrative suspension will have on them, including in cases where our clients come to us from states near and far.
In New Hampshire, motorists accumulate demerit points when they are convicted of a certain traffic violations. The number of points varies from offense to offense, and the penalty is a license suspension. Defending motor vehicle cases doesn't just occur in court. Our defense lawyers take the time to size up the collateral consequences of any courtroom conviction, including the assessment of points for motor vehicle driving violations.
Driving under the influence of liquor or drugs, Operation After Suspension, Conduct After An Accident, Disobeying a Police Officer, Reckless Driving as well as a myriad of other serious motor vehicle offenses will result in the assessment of six demerit points. Four points are assessed for Driving Without a License, speeding 25 miles per hour or more above the posted limit and improper passing or a yellow line violation, among others. A simple speeding ticket or other traffic ticket typically results in an assessment of 3 points.
The term of the license suspension depends on the offender's age and the number of points accumulated in a set period of time. For drivers under the age of 18, there is up to a 3 month license loss for the accumulation of 6 points, which means that a DWI will result in a points suspension in addition to the other court and administrative penalties imposed for that offense. There are longer license losses for the accumulation of 12 points in two calendar years or 18 points in three calendar years. For drivers between the ages of 18 and 21 years old, the accumulation of 9 points in one calendar year will result in a license loss of up to 3 months with longer license losses based on the accumulation of 15 points in two calendar years or 21 points in three calendar years.
For drivers 21 years old and older, there is up to a 3 month license suspension for the accumulation of 12 points in one calendar year with longer license losses for 18 points in two calendar years or 24 points in three calendar years. There is 6 hour defense driving/attitude course available for those concerned about points, which allows you to subtract 3 points from your point assessment such that the points remain on your motor vehicle record, but are not counted toward license suspension. If you are concerned about the accumulation of demerit points based on multiple motor vehicle driving offenses, you should consider consulting with an attorney prior to pleading guilty and sending the ticket in for payment. Our attorneys defend motor vehicle offenses and can assist you to account for points exposure.
Possession / Transportation of Drugs & Alcohol
New Hampshire may suspend your license to drive for 60 days for the simple possession or transportation of alcohol or drugs in a motor vehicle. Possession or transportation of alcohol in the passenger compartment of a motor vehicle is a violation even for people over the age of 21 where the seal of the container is broken. Open containers of alcohol must be transported in the trunk area of the vehicle or, in vehicles with no trunk, they must be transported in the compartment least accessible to the driver. Transporting alcoholic beverages is a Violation and shall result in a fine of $150 for a first offense and may result in a license loss of up to 60 days.
Possession and transportation of a controlled drug in a motor vehicle is a crime in New Hampshire pursuant to RSA 265-A:43. It is a Misdemeanor and is punishable by a fine as well as a minimum license loss of 60 days and a maximum license loss of up to 2 years. Transportation of Alcoholic Beverages by a Minor is a Violation resulting in a license loss of 60 days. No person under the age of 21 may transport an alcoholic beverage in any compartment of a vehicle except when accompanied by a parent, legal guardian or a legal age spouse. This means that it is illegal for a driver under the age of 21 to transport alcohol even if there is a passenger of legal age in the vehicle.
New Hampshire imposes enhanced penalties and reduced standards for persons under the age of 21 that are convicted of DWI. The per se standard for determining impairment is dramatically reduced for operators under the age of 21. Instead of an alcohol concentration of 0.08 for drivers of age, it is a reduced 0.02 for drivers under the age of 21. A DWI conviction for a person under the age of 21 results in a required 12 month license loss, fine of $500 plus Penalty Assessment and alcohol treatment. Within 30 days of a conviction, the person must schedule a substance use disorder evaluation, complete that evaluation within 60 days and then comply with the plan developed.
Additionally, he or she must complete the Impaired Driver Intervention Program, which is a 20 hour alcohol and drug education course as well as any follow up recommendations which stem from that course. Restoration of driving privileges may also be more difficult for drivers under the age of 21, often requiring an additional hearing at the Department of Safety prior to restoration of driving privileges. In addition to these court imposed penalties, there is also an administrative suspension of 6 months issued by the Department of Safety.
The enhanced penalties applied to younger drivers in DWI cases are substantial and our lawyers are prepared to help. We defend DWI cases throughout New Hampshire, Southern Maine and Northern Massachusetts, understand the impact that a long term license loss may have on education and employment opportunities and prepare a defense with the goal of avoiding convictions or mitigating the impact that flow from them.
Scientific Issues of DWI
Increasingly, the state of New Hampshire relies on scientific evidence to prove drunk driving and impaired driving cases. In traditional cases, the State seeks to administer a breath test at the police station or state police barrack. The machine used by law enforcement in the state is known as the Intoxilyzer 5000 and it is not infallible. It requires a specific waiting period, instructions to the subject of the test, regular maintenance and calibration, and administration by a certified breath test operator. Critically, it tests alcohol content at the time the test is taken and not at the time that a suspect was actually operating a motor vehicle. In the time in between, alcohol content can change, sometimes dramatically. It is possible for alcohol content to rise in the time that it takes for the police to administer the test. Collecting information regarding a client's height, weight, and alcohol and food consumption may permit our attorneys to enlist an expert to challenge breath test evidence.
In addition to the typical test at the station, certain New Hampshire police officers and state troopers often seek to administer a test on the roadside, known as a Preliminary Breath Test (PBT). There are several different PBT devices in use in New Hampshire and the state's own training materials call into question the reliability of this type of testing. As important, preliminary breath testing implicates important constitutional concerns. This type of test does not create a second sample for independent analysis by our defense team. This defect results in constitutional and statutory challenges to the admissibility of such evidence, arguments that our attorneys have won in the state courts.
More and more, police officers and state troopers are requesting that our clients submit to blood testing to examine both blood alcohol content, as well as the possible presence of controlled drugs. In drug related impairment cases, the State tends to rely on an expert to offer an opinion that the presence of certain drugs at certain levels will result in impairment. In our experience, the State often overreaches in coming to such opinions. Our DWI defense attorneys frequently rely on experts in the field to counter this evidence, an effort which can both result in an effective defense at trial and an improved negotiating position.
Troubleshooting Reinstatement Issues
Our DWI defense team believes that its responsibilities don't end at the close of a case in court. We seek to educate our clients regarding the necessary next steps to reinstating driving privileges following a period of license loss. After a DWI conviction, a driver must complete any required program, which may involve the successful completion of any "after care" obligations. There are insurance consequences because those with a DWI conviction must secure a Form SR-22 from an insurance company prior to reinstatement. There is also a reinstatement fee.
Following reinstatement in New Hampshire, the state issues a probationary license for a period of five years. This means that a probationary license holder cannot drive a motor vehicle with breath alcohol concentration of 0.03% or more. Violation of this restriction results in administrative license suspension, even without being "under the influence" of alcohol. Further, the law requires that a probationary license holder submit to a breath test and calls for additional administrative suspensions for the failure to do so regardless of impairment.
Put our experience and knowledge to work for you. Let us help you navigate through the legal mine field that results from a DWI charge. With the consequences so severe, get the assistance of an experienced DWI lawyer. It can make a critical difference in understanding your options, negotiating a plea bargain or winning your case at trial.
Contact Shaheen & Gordon, P.A.
Speak with a New Hampshire DWI lawyer from Shaheen & Gordon today to take aggressive action against your DWI charges. Our DWI defense team includes former prosecutors. They are trained trial attorneys, understand how the State builds its case and rely on that training to secure results for their clients. They are in action week in and week out defending DWI cases in court and in administrative hearings. They have developed good working relationships with area prosecutors and police officers. They work both to establish options to resolve cases and, at the same time, prepare their drunk and impaired driving cases for trial.
They regularly try DWI cases and are proud of their track record of success, delivering countless not guilty verdicts to their clients. Members of our criminal defense team have been recognized for their work, including being named to the Union Leaders "40 Under 40" list, are highly rated on Avvo and included in Super Lawyers® in the area of Criminal Defense.. Put their experience defending drunk and impaired driving cases to work for you. Our legal team has been in practice for more than three decades and is more than qualified to handle your DWI/DUI case. Call Shaheen & Gordon, P.A. today to
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