Tragically, Driving While Intoxicated (DWI) cases turn into Felony offenses
in a variety of circumstances, including accidents resulting in serious
death or bodily injury. DWI death and injury cases necessarily implicate
complicated scientific, legal and factual issues. However, defending these
cases requires a comprehensive approach, one that both accounts for the
issues in a case as well as the condition of our clients and their families.
We often meet our clients on dark days and apply our early energy to assisting
them to return quickly to a positive and productive path.
From our early meetings, we establish a plan to defend the charges and
confront a range of other issues that routinely surface in DWI death and
injury cases, including press concerns, alcohol and drug treatment and
the emotional fallout as all parties to a case address the grave circumstances
surrounding the death or injury to a person involved.
Relying on our background as former prosecutors and our experience defending
these cases, we work with our clients and their families to size up the
potential penalties, identify important legal and scientific issues and
craft a plan to strategically respond to any issues in and out of court. A
New Hampshire DWI attorney from our firm can shape a defense to the circumstances of every case.
We believe it is our obligation to zealously prepare our cases for trial
while, at the same time, relying on the depth of our preparation to determine
if any reasonable opportunities exist to resolve our cases without a court
room battle. Where compromise fails, we put our best foot forward in court,
relying on our trial experience to focus on a single task: winning. Where
diplomacy prevails, we turn to our knowledge of the court system, relationships
with law enforcement and prosecutors, and creativity to minimize the consequences
to our clients.
The Potential Charges and Penalties
New Hampshire law treats DWI and OUI cases as a Felony in many different
Class B Felony offense for Aggravated Driving While Intoxicated occurs where there is a serious bodily injury and an allegation of impaired
operation of a motor vehicle, recreational vehicle (OHRV) or boat. A fourth
offense DWI is also treated as a Felony. Either situation involves exposure
to substantial sentences. A conviction for
Aggravated DWI involving a serious bodily injury calls for as much as a 3 ½- to
7-year prison term, but imposes a minimum mandatory sentence of not less
than 21 days, 14 of which are served at the House of Corrections and 7
of which are served at a multiple DWI offender intervention program.
There is also a minimum 18-month license loss and a maximum 2-year license
loss, six months of which may be suspended with enrollment in the required
alcohol program as well as substantial fines and ignition interlock obligations.
A Felony for a Fourth DWI offense may result in a lengthy prison sentence,
but requires, at a minimum, 6 months in jail, 30 nights of which must
actually be served followed by a 28 day residential treatment program.
Importantly, a fourth offense DWI also calls for an indefinite license
loss with the right to petition for the return of a driving privilege
after 7 years.
There are a range of legal issues that commonly surface in impaired driving
death and injury cases which require our defense attorneys to craft a
blended approach to defending them by identifying constitutional, scientific
and common sense issues.
Our DWI defense team focuses on staying on top of the latest legal and
scientific issues that arise in these cases and apply that knowledge to
assisting our clients in defending these cases.
Blood Test Evidence
Law enforcement typically seeks blood evidence from a suspect in death
and injury cases, which sounds simple, but actually gives rise to a variety
of legal and constitutional challenges. By statute, New Hampshire law
purports to allow law enforcement to demand blood samples in any case
where there is a collision resulting in serious bodily injury or death,
even without a search warrant. Our DWI team has identified a constitutional
defect in this statute. Specifically, the current statute permits blood
testing where “the officer has probable cause to believe the driver
has caused the collision or accident.” However, causing a collision
or accident is not, in and of itself, a crime. Accordingly, our DWI lawyers
have regularly challenged the use of this statute to permit blood draws
on constitutional grounds, successfully arguing that the statute is defective
for permitting a search for blood without cause to believe that a crime
In other instances, law enforcement seeks to secure blood and blood results
through the use of a search warrant and/or grand jury subpoena. These
efforts may call for the production of otherwise confidential health information.
While recent changes in the law purport to carve out exceptions to the
doctor-patient privilege, substantial room for legal argument exists to
challenge such law enforcement efforts. Our defense attorneys are well
positioned to execute such arguments. Our firm is one of the largest in
the State and includes criminal defense as well as health care lawyers.
Where the case calls for it, our criminal lawyers rely on the depth of
our firm’s expertise in a variety of areas to bring pressure to
bear on their cases, assessing whether any avenues exist to quash a subpoena
or call into question the propriety of information collected through the
execution of a warrant. Similarly, any search warrant for such evidence
must be supported by probable cause to believe that evidence of the crime
will be found in the blood that is the subject of a search. Our attorneys
regularly analyze law enforcement affidavits used to support search warrants
in these cases, generating motions to suppress evidence, questioning whether
probable cause was really present to support the search.
Our DWI team turns to experts whom they regularly rely upon to contest
blood and breath results. As time passes, alcohol and drugs are digested
in the body, something regularly referred to as the “burn off”
rate. Tests for the presence of alcohol and drugs are limited in that
these results reflect the presence of drugs or alcohol at the time that
the sample is taken and not at the time that the accident actually occurred.
In the time in between, blood results change, sometimes dramatically,
either going up or down depending on a variety of circumstances. Our attorneys
work with our clients to establish a timeline, assess the consumption
of alcohol or drugs, collect information about height, weight, age and
food consumption and then, in certain circumstances, enlist the assistance
of experts to analyze the information and determine whether there may
be any viable challenge to the State’s impairment claim.
Accident Reconstruction and Vehicular Autopsies
Critically, DWI death and injury cases require the State to prove that
the driver was the “cause” of the accident. Impairment by
alcohol and drugs, standing alone, is not necessarily the cause of an
accident. Road conditions, weather conditions and mechanical problems
may likewise cause accidents. Examining these issues may create defenses,
and our attorneys leave no stone unturned.
Our team regularly relies on accident reconstruction experts to recreate
accident scenes. This is particularly important in New Hampshire where
weather, road conditions and road construction regularly result in traffic
At times, the experts we turn to visit scenes. At other times, they simply
review the State’s accident reconstruction reports. In either case,
we apply a comprehensive approach to understanding how an accident actually
occurred. Vehicle positioning, skid marks, yaw marks and the condition
of a road are often issues that exist in such cases and, where they exist,
our team is positioned to advance any appropriate defense to protect our
clients. Our firm will also demand evidence from vehicle inspections,
because equipment failures may have contributed to the tragic accident.
A Serious Bodily Injury and Medical Records
In cases involving a “serious bodily” injury the State bears
the burden of establishing that an accident resulted in an injury of this
type. The term “serious bodily injury” is established by statute
and interpreted by New Hampshire cases. Serious bodily injury includes
any harm to the body which causes severe, permanent or protracted loss
of or impairment to the health or of the function of any part of the body.
Therefore, not every injury is a serious one and our experience tells
us that the State often overcharges these cases by relying on superficial
injuries, cuts and abrasions to create a Felony offense where one should
not exist. Further, medical records are often necessary in order for the
State to make its case. The State often prosecutes Aggravated DWI cases
even where the serious bodily injury is suffered by the impaired driver.
In such situations, the State typically seeks medical records by request,
subpoena or search warrant.
Fighting Your Felony DWI with NH Attorneys from Shaheen & Gordon
The legal issues implicated by law enforcement requests for medical information
from an allegedly impaired driver are quickly evolving and involve an
understanding of the physician-patient privilege and the laws that relate
to privacy of health care information. This nuanced area of the law may
supply defenses to State efforts to secure otherwise protected health
care information. A recent series of New Hampshire Supreme Court opinions
further describe when law enforcement may use grand jury subpoenas and
search warrants to request health care information. These opinions create
a framework for requests for health care information as well as objections
to such requests. Simply stated, proving serious bodily injury is not
a simple task and defending this element in the State’s case requires
our lawyers to understand the injury and analyze how the State secured
its evidence in order to identify any possible defenses.
Our team of exceptional New Hampshire DWI lawyers are up for the challenge.
If you've been arrested and charged with felony drunk driving,
contact us today.