DWI

  1. What are the different DWI classifications in New Hampshire?
  2. How does the process typically work from the time of arrest, through arraignment, to completion of the case for DWI?
  3. Should I hire an attorney to fight a DWI Charge or handle it on my own?
  4. Is it possible to win a DWI case?
  5. I refused a BAC test. What can I expect now? Did I hurt my case?

What are the different DWI classifications in New Hampshire?

dwi-classifications-summaryThere are basically three ways that DWI is classified in New Hampshire. There are three axes, if you think about it like that. The first is your age. If you’re charged with DWI and you’re under 21, the penalties are much different than if you’re over 21. The basic idea in here is that if you’re given at DWI and you just started driving, it’s extra bad. The first thing that the law uses to categorize DWIs is the age of the driver.

The second thing that it uses to categorize DWIs is the subsequent offenses. If you have prior offenses for DWI, your penalties get worse each time you get a new one. If you have a DWI first, the penalties are X, and if you have a DWI second, the penalties are X plus whatever. It’s always getting worse with every subsequent DWI you get.

The final way that they categorize DWIs is that you can have them become much more serious, including taking a regular misdemeanor DWI and making it a felony DWI, based on what happens in the accident, if you cause an accident. For example, if you have a passenger that suffers serious bodily injury, and that you were driving while intoxicated and caused an accident that injured them, then the penalties are different. It could be charged as a felony instead of a misdemeanor. The way that the law breaks it down is the three things: the age of the driver, the number of offenses, and then if something happens at an accident and to whom does it happen.

How does the process typically work from the time of arrest, through arraignment, to completion of the case for DWI?

dwi-start-to-finishIn a DWI case, generally what happens is a car is pulled over by the police. There’s usually three reasons that the car gets pulled over. The first is, the officer observes some sort of unusual operation of the car, erratic operation. Somebody crosses the median line, somebody slows way down, something like that. The other way that the car gets pulled over is if somebody calls in a tip. Basically, somebody is driving on a highway, they see a car pass them, and the car is behaving funny. They call 911 and they say, “Oh, I see this car. It’s white, it has this license plate number. It crossed onto my side of the road and drove there for 30 seconds, and then went on the other side.”

Then the third way that the police can stop somebody, this is a non-exhaustive list, but the third common way that people can stop somebody is a DWI is what’s called Richter stop. There’s a case in New Hampshire that says that the police are allowed to just run random license plates and see if the license plates have problems. For example, the guy’s sitting on the side of the road, car drives by, he enters the license plate number into his mobile data terminal, and it turns up that that person has a suspended license. That officer then goes and flags that person down, and pulls them over to the side of the road, and when he approaches the car he smells an odor of alcoholic beverage. The stop immediately becomes about a DWI. These three common inputs, those three common ways for somebody to get picked up on a DWI.

Once they’re actually talking to the officer, the process becomes focused on their condition. Oftentimes, police officers will ask people to get out of the car. As soon as they ask them to get out of the car, even before then, they’ve started making observations, that they’re going to put in their police report, to make the person appear to be intoxicated. If the person rolls down the window and it smells like alcohol, that goes in the report. If the person rolls down the window and they have glassy bloodshot eyes, that goes in the report. If they have slurred speech, that goes in the report.

Everything that the officer does from the moment that he pulls the person over is designed to gather information to support a charge of a DWI. That’s what they’re looking for when they’re pulling somebody over, when they suspect that it’s for driving while intoxicated. Even something as minor as going into your glove box and getting out your registration. If you fumble with your papers, they’re going to think that that’s a sign that you’re intoxicated.

Once they’ve done that introduction on the side of the road, they’ll ask you to get out of your car, and you’ll perform the standardized field sobriety test. These are very explicitly designed to get information relating to intoxication. Even while you’re doing that, they’re going to make observations about other things that aren’t related to the standardized field sobriety tests that make people think that the person is intoxicated.

After that, almost always, if you fail the field sobriety test, they’re going to probably arrest you, then they’ll take you back to the station. They may, in fact, try to search your car, or have your car impounded, at which point they will search your car. You’ll go back to the station, you’ll be booked. They’ll probably do a search of your person. Then they will either ask you to take the breathalyzer test, or if you refuse, they’ll present you with paperwork on your refusal to take the breathalyzer test. Then they’ll have a bail commissioner come in and set your bail. If the bail is something that you can’t post, then they’ll hold you. If it’s something you can post, and you have somebody that can come and pick you up, they will let you go. Shortly thereafter, you’ll get an arraignment date to go into court.

At the arraignment, the court’s going to ask you two questions: they’re going to ask you what you plead, and you should plead not guilty; and then they’re going to ask you to talk about bail. If the bail is set at something you can post, or has been posted, it’s probably best to just waive your arraignment.

After the arraignment hearing, or waver of arraignment, the next step is you will have some kind of initial court appearance. At the point, the person who is representing you then talk to the other side, and get a parameter, and get the outlines of what the prosecution is looking for. They’ll hopefully have a chance to evaluate your case, look at your discovery, and figure out what is going to happen, or give you a guess as to what will happen should the case go to trial, so that you have that information when you’re weighing whether or not to take an offer on the State.

If the offer is rejected, then usually what happens in Hillsborough County itself is that another date is given, and that date is selected to be the trial date. At that point, the case goes to trial. It’s just like a trial on TV. The cop gets on the stand, the police officer gets on the stand, is asked questions by the prosecution, then the defense lawyer gets to ask questions. It goes that way for all of the prosecution’s witnesses. Then the defense gets a chance to present witnesses. They go first in asking questions, and then they’re followed about by the prosecution. The judge renders a verdict.

If the verdict is not in favor of the defendant, the defendant has an option to either appeal directly to the Supreme Court of the State of New Hampshire, or to appeal for a brand new trial in the Superior Court, in which they get the benefit of a jury trial. That process takes some time, but again, once you get to jury trial, it’s basically the same thing as you see on TV. Witnesses get on the stand and asked questions, except instead of judge rendering the decision of guilty or not guilty, a jury would. After that, if the person is still unsatisfied, and they have good reasons, you can take an appeal to the Supreme Court to see if there were legal errors.

Should I hire an attorney to fight a DWI Charge or handle it on my own?

Yes, absolutely hire an attorney, whether it is Gottesman & Hollis or not. The way motor vehicle cases are processed, in particular how they’re processed in New Hampshire, which does not have an automobile exception to the warrant requirement like they do in Federal Court and other State Courts, there’s a really big advantage in having a lawyer handle a DWI case. Not only does the lawyer have the ability to ask questions and prepare for trial in a way that a person who is not experienced in law does, but in DWI cases in particular, it’s often helpful to challenge the way in which the person was stopped in their car. Because there is no automobile exception in New Hampshire, the police have a more difficult time figuring out ways to stop people in their car. A lawyer has a whole range of tools to fight that stop that a lay person would not even be aware of. In particular, because of the lack of an automobile exception in New Hampshire, a DWI case is something that a person could get great benefits from hiring an attorney on.

That doesn’t even talk about knowing what the ins and outs of the license suspension are, knowing what some of the additional requirements for schooling or classes are. All of those things are things that a lawyer, who’s done criminal work like we have, is aware of, that a person who is just coming in off the street probably doesn’t know about.

Is it possible to win a DWI case?

Yes, it is possible to win a DWI case. Simply because you’ve been charged doesn’t mean that you are guilty. Simply because they have good test results doesn’t mean that you are guilty. Simply because you’ve failed the standardized field sobriety tests doesn’t mean you are guilty. There are things that the law allows, that lawyers know how to do, that can get rid of bad evidence in some cases. If you have a case, and you feel like it’s hopeless, before you give up hope, you should absolutely talk to an attorney, because there are things that are a lawyer can do, even before you get to trial, that can make your case much better, or even win it outright. Then if you get to trial, the process of going through trial, and knowing the rules of evidence, and asking questions, that’s something that a lawyer can do that can have a huge impact on the outcome of a case.

If you go in without a lawyer and you ask questions, there is a chance that you would make a good case bad, or a bad case worse. Whereas, hopefully, if you’re hiring a good lawyer, they will know the rules of evidence, they will have enough experience at trial to know how to ask questions, and what kind of questions to ask, and which questions not to ask. They will make your case better. It is absolutely possible to win a DWI. A good lawyer, with good facts, can win a DWI before it even gets to court. Once it gets to trial, a good lawyer can help you win that case.

I refused a BAC test. What can I expect now? Did I hurt my case?

In New Hampshire, the law around refusing a blood alcohol test depends on what kind of blood alcohol tests they’re asking you to do. If they’re asking you to do a breath test at the police station, you generally have a right to refuse, with the awareness that in refusing, you’re going to sign a refusal form, and it’s going to tell you that there’s going to be a penalty. If you’re at the police station and you refuse to blow, they’re going to be able to take your license just for that refusal to blow.

Refusing to blow is not fatal to a case, but it will result in some form of loss of license, that can, in some instances, be negotiated away when you resolve the case. You will have an automatic loss of license that either needs to be served, or needs to be taken care of when the case is resolved.

If you are at the hospital and they do a blood alcohol content test, there are certain circumstances, and they’re rooted in statute, that you do not have the ability to refuse. For example, if they’re doing a blood draw and then it’s deemed for medical purposes, they’re going to take the blood draw. That same blood draw that they used to tell the doctors what’s going on could also be tested to determine what your blood alcohol level was. Under certain limited circumstances, you do not have a right to refuse.

Again, how they take the test, and what the test means, is something that a good lawyer can help frame for the court. If you refuse or don’t refuse, having a lawyer can help you process that information in a way that makes your case better.