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1. Schulefand, Daniel: Twenty-two years ago, when I started practicing law in New Hampshire, there was an advertisement aimed at preventing DWIs that featured a picture of a frosty mug of beer and the tag line: ÒThe $5,000 Beer.Ó The point of the advertisement was that the fine, court costs, attorneysÕ fees and insurance premiums would reach that amount for the average driver convicted of a simple DWI. Times have changed. For a simple, first offense DWIÐwith no accident, property damage, personal injuries, or aggravating facts, the true cost to the driver has been estimated by various groups and organizations to be somewhere between $10,000 and $20,000: * CNBC: $20,000 * Alcohol Problems and Solutions: $20,000 * MADD of Orange County, CA: About $11,000 * Illinois Secretary of State: $14,660 (assumes jail and lost income, but low legal fees due an Òuncontested pleaÓ) * Erie County, NY: $9,500 * Texas Department Of Transportation: $9,000 - $24,000 All of these estimates include some assumptions that I donÕt agree with and some costs that donÕt exist in New Hampshire. More important, the true cost will vary significantly from individual to individual.
2. Getman, Stacey, Schulthess & Steere: 1. Q: What are the penalties for first offense DWI in New Hampshire? A: Click here to see a detailed chart of the elements and penalties for all New Hampshire DWI offenses. A driver who is convicted of simple DWI (first offense) is looking at (A) a minimum 90 day actual loss of license and a maximum two year loss of license, (B) a fine between $500 and $1,200, plus a 20% penalty assessment, and (C) a twenty hour impaired driver intervention program at a cost of approximately $460. If the driver was under 21, the minimum period of actual loss of license is one year. For all drivers, the minimum period of license revocation is actually nine months but the court can allow a the driver to petition for reinstatement after ninety days (unless he was under 21 at the time of the offense) if he has entered into the impaired driver intervention program within 45 days of conviction. First Offense DWI is a Class B misdemeanor although the driver may ask the court to reduce the offense level to a violation one year after conviction. Also, as explained below, a driver charged with DWI may be subject to an additional Administrative License Suspension ("ALS") for (A) refusing to submit to a post-arrest sobriety test or alcohol concentration test or (B) submitting to a post-arrest alcohol concentration test that discloses an alcohol concentration of 0.8 or greater. The ALS suspension is for an automatic six months if the driver has no prior DWIs or post-arrest test refusals. The ALS suspension is for an automatic two years if the driver has a prior DWI or a prior post-arrest test refusal. If the ALS suspension is for a refusal it runs consecutive to (e.g., in addition to) any court imposed suspension or revocation. If the ALS suspension is for an alcohol concentration of 0.8 or greater, it will run concurrent with the court imposed revocation. Thus, the combined DWI/ALS minimum actual loss of license for First Offense DWI and refusing to submit to a post-arrest alcohol concentration test is nine months. If there was a prior refusal or a prior DWI on the driver's record, the combined minimum actual loss of license is twenty-seven months. The combined DWI/ALS minimum actual loss of license for First Offense DWI and taking a post-arrest test that reveals an alcohol concentration of 0.8 or greater is six months. If there was a prior refusal or a prior DWI on the driver's record, the combined minimum actual loss of license is two years. Note that the ALS suspension will be automatic and irreversible unless the driver requests an administrative hearing within thirty days of arrest (or within thirty days of receiving notice of the ALS suspension from the police or DMV if notice was not provided at the time of arrest). Therefore, any driver with grounds to challenge the ALS suspension should request a hearing and demand the presence of the relevant officers immediately. The ALS hearing should be requested even if success on the ALS is unlikely--many police departments will consider withdrawing the ALS petition as part of a negotiated disposition of the DWI case. New Hampshire law provides much stiffer penalties for repeat offenders and for DWIs committed when (B) there is a passenger under 16; (C) the driver was going more than 30 miles over the posted speed limit; (D) the driver had an alcohol concentration of .16 or greater; (E) the driver attempted to elude pursuit by law enforcement; or (E) the driver caused a motor vehicle collision resulting in death or serious bodily injury . Click here to see a the penalties for all New Hampshire DWI offenses. 2. What are the penalties for Aggravated DWI and DWI, Subsequent Offense: Click here to see a detailed chart of the elements and penalties for all New Hampshire DWI offenses. If the complaint alleges that the driver has been convicted of a previous DWI offense (in any jurisdiction) within the past ten years, there is (A) a mandatory jail sentence; (B) mandatory residential treatment at the driver's expense; and (C) a mandatory loss of license of at least three years. If the complaint alleges a Second Offense and the prior conviction is within the last two years, the driver is looking at (A) a mandatory minimum 30 days in jail and a maximum sentence of one year in jail; (B) 7 days at the New Hampshire DWI Multiple Offender Intervention Detention Program ("MOP") at a cost of approximately $1,200, to commence immediately upon release from jail; (C) a mandatory 3 year loss of license; and (D) a fine between $500 and $2,000 plus a 20% penalty assessment. If the Second Offense occurred more than two years before the date of the new offense, the mandatory jail sentence is only 3 days but other sentencing provisions are identical. If the complaint alleges (a) a prior DWI offense within the past ten years and (b) a total of two prior DWI offenses altogether, the driver is looking at (A) six months to one year in jail; (B) a twenty-eight day residential treatment program to be completed at the driver's expense; and (C) a mandatory minimum five year loss of license; and (D) a fine of between $500 and $2000 plus a 20% penalty assessment. A driver with a prior DWI offense within the past ten years and a total of three prior DWI offenses altogether may be prosecuted for a Class B felony and sent to the New Hampshire State Prison for a maximum of 3 1/2 to 7 years. In addition the driver will need to successfully complete a 28 day residential treatment program at his own expense and cannot have his license or privilege to operate a motor vehicle in New Hampshire restored for seven years. 3. Q: What are the penalties for causing death or serious bodily injury by DWI? A: A driver who causes a motor vehicle accident while impaired by alcohol or drugs which results in serious bodily injury to any person, including the driver, may be prosecuted for Class B Felony Aggravated DWI. This charge carries (A) a mandatory minimum 14 day jail sentence and a maximum sentence of 3 1/2 to 7 years in the New Hampshire State Prison; (B) 7 days of residential treatment at MOP at the driver's expense; and (C) loss of license. A driver who causes another person's death by DWI may be prosecuted for Class A Felony Negligent Homicide. That charge carries a maximum sentence of 7 1/2 to 15 years in the State Prison. If the driver has prior DWI convictions the prosecutor might file a charge of Reckless Manslaughter rather than Negligent Homicide. The New Hampshire Supreme Court has held that a driver's prior convictions--and prior experience with court mandated treatment--can provide the driver with sufficient knowledge of the dangers of DWI to support a finding of criminal recklessness. The maximum penalty for Manslaughter is 15 to 30 years in prison. 4. Q: What happens if I refuse a post-arrest breath test? A. If the police office followed the correct procedure, you will be subject to an Administrative License Suspension ("ALS"). The ALS suspension will be for six months if you have no previous DWIs or test refusals on your record. It will be for two years if you have either a prior DWI or a prior post-arrest test refusal. The suspension for refusing a post-arrest test is always consecutive (e.g., in addition to) any period of revocation imposed by the court. Note that this is an administrative suspension which is imposed by the Department of Safety. The ALS suspension is automatic and irreversible unless you file a request for a hearing with the Department of Safety within thirty days of your arrest (or within thirty days of receiving notice of the ALS Suspension). Additionally, the failure to submit to a post-arrest breath test may be admitted in court in a DWI case to prove consciousness of guilt. However, if the police officer fails to follow the correct procedure then the ALS suspension may be vacated (if you request a hearing) and the refusal may not be admitted in court. Basically, the police officer cannot demand a breath test unless: -The driver is already under arrest for an offense involving operation of a motor vehicle; -The officer has reasonable grounds to believe that the driver is impaired by alcohol; -The officer warns the driver that his license will be suspended if he refuses the test; and -The officer advises the driver of his right to have an additional test. Additionally, if the police officer earlier requested a pre-arrest preliminary breath test ("PBT"), he should have advised the driver that the failure to take a PBT will not prevent or require the taking of a subsequent post-arrest breath test. Some courts have held that providing this advice is a procedural pre-requisite for an ALS suspension and for the admission of a post-arrest breath test refusal in court. Finally, the ALS suspension may be vacated (if you request a hearing) if: -The officer fails to sign the ALS Petition in front of a notary; -The officer fails to sign and file the ALS Petition within ten days; or -The officer fails to attend the ALS hearing and cannot show good cause for his failure to appear. The Department of Safety maintains a website with brief descriptions of many Superior Court rulings on appeals from ALS suspensions. You can access that website here. 5. Q: What if I refuse a post-arrest blood test, urine test or physical field sobriety test? A: Post-arrest blood tests, urine tests and physical field sobriety tests are treated the same of post-arrest breath tests. A refusal to take these tests will trigger an ALS suspension and may be used as evidence in the underlying DWI case. For more information about ALS suspensions, please see Question 4, above. 6. Q: What if I refuse a PRE-ARREST Breath Test? A: New Hampshire law allows police officers who are certified to operate certain approved handheld breath testing devices to request a preliminary breath test ("PBT") at the side of the road (or elsewhere). You have an absolute right to refuse a PRE-ARREST PBT. A refusal to take a PBT cannot be used as evidence in court except for the purpose of proving probable cause for arrest. 7. Q: What happens if I take a post-arrest breath test which reveals an alcohol concentration of 0.8 or greater? A: If the police officer followed the proper procedure, you will be subject to an ALS Suspension that will be concurrent (e.g., simultaneous) with any period of revocation imposed by the court. The length of the ALS suspension will be six months if you have no prior DWIs or test refusals. It will be two years if you have either a prior DWI or a prior post-arrest test refusal. The ALS suspension will be vacated (if you request a hearing) if the police officer failed to follow the procedure described in response to question 4, above. Additionally, the ALS suspension should be vacated if: -The intoxilyzer was not certified; -There were maintenance or reliability problems with the intoxilyzer; -The intoxilyzer operator was not certified; or -The test result was 0.8 (because a result of less than 0.8 would be within the machine's margin of error). For more information about ALS suspensions, please see Question 4, above. Additionally, New Hampshire law allows the prosecutor to charge a driver with "per se DWI" for driving with an alcohol concentration of 0.8 or greater. Since most intoxilyzer tests are taken about an hour after the initial stop, in close cases it is necessary to consider (A) the machine's margin of error and (B) the likely rate of alcohol absorption and elimination to determine whether there is a good defense to a per se complaint. Additional information about breath testing technology is provided below. 8. Q: What happens if I take a PRE-ARREST breath test which reveals an alcohol concentration of 0.8 or greater. A. There is a statute which says that PBT test results are admissible if certain procedural pre-requisites are met. These procedural pre-requisites are as follows: -The officer must be certified to use the PBT device; -The PBT device must be certified by the department of Health and Human Services; -The officer must have reasonable grounds to believe that the driver was operating a motor vehicle while under the influence of alcohol or drugs. -The officer must advise the driver that refusing or taking a PBT will neither prevent nor require a subsequent post-arrest test. Because PBT devices are less reliable than desktop intoxilyzers, many lawyers have argued that--notwithstanding the statute--PBT test results should be excluded under the N.H. Rules of Evidence. The conflict between the PBT statute and the Rules of Evidence involves important questions relating to separation of powers. Those questions have not yet been answered by the courts. 9. Q: What is the "legal limit" in New Hampshire? A: New Hampshire defines legal impairment in two alternative ways. Under one definition, a driver is per se impaired if he has an alcohol concentration of 0.8 or greater at the time he was driving. A driver who is under 21 is per se impaired if he has an alcohol concentration of .02 or greater. A driver with a CDL license who is driving a commercial vehicle is per se impaired if he has an alcohol concentration of 0.04. Under the second definition, a driver is DWI if he is actually impaired by alcohol and/or drugs to any perceptible degree. Under this definition, the driver's alcohol concentration is merely circumstantial evidence of actual impairment. An alcohol concentration of 0.8 or greater is prima facie evidence of impairment. This means that if the State proves that the driver had an alcohol concentration of 0.8 or greater at the time he was driving, that is sufficient to prove impairment. However, it is not conclusive evidence of impairment. An alcohol concentration of 0.3 or less is prima facie evidence that the drive was not impaired. In either type of case the admissibility and interpretation of intoxilyzer and/or blood alcohol evidence is critically important. For example: -An intoxilyzer reading of 0.8, standing alone, is insufficient to prove a 0.8 per se case beyond a reasonable doubt. The intoxilyzer has a margin of error which makes a reading of 0.8 consistent with a slightly lower alcohol concentration. However, if the driver told the police when he stopped drinking, the State's expert may engage in "reverse extrapolation" to estimate the alcohol concentration at the time of driving. Such testimony could be challenged by the driver's lawyer on the grounds that "reverse extrapolation" assumes that the driver eliminates alcohol at the same rate as the average person when, in fact, the rate at which alcohol is eliminated from the bloodstream varies from person to person (and within a single person over time). -An intoxilyzer reading of 0.12, which ordinarily suffices to prove impairment under either definition may be excluded if a test of the "second sample" of the driver's breath or blood is inconsistent with the intoxilyzer test. -An intoxilyzer may have maintenance or certification problems which preclude the admission of the test results. -The officer may have failed to comply with the twenty minute observation period required for intoxilyzer tests. -The officer may have failed to give proper implied consent/ALS warnings to the driver prior to an intoxilyzer or blood test. -The driver may present evidence which enables an expert to opine that his alcohol concentration at the time he was driving was less than his alcohol concentration at the time an intoxilyzer or blood test. -The intoxilyzer results may be challenged if there are grounds to believe that (a) the driver had "mouth alcohol" that might have affected the results; (b) the driver suffered from gastric reflux (which could result in alcohol entering the mouth from the stomach during the twenty minute waiting period); (c) the driver had a higher than ordinary mouth temperature; or (d) the driver was exposed to certain chemicals. Typically it is very helpful to retain an expert witness if any of these issues is central to the defense. -Intoxilyzer and blood test results cannot be admitted if the police lacked probable cause to arrest the driver. 10. Q: What's the difference between a hospital blood test and a State blood test? A: A State blood test is performed on whole blood and the result is reported in terms of grams of alcohol per unit of whole blood. Most hospital tests are performed on blood plasma and the result is reported in terms of grams of alcohol per unit of blood plasma. Because alcohol has a greater affinity for blood plasma than for whole blood, a hospital test will almost always state a higher alcohol concentration than a whole blood test. The State's experts typically say that a hospital test overstates whole blood alcohol concentration by 15 to 20%. This, however, is gross oversimplification. The difference between whole blood and blood plasma alcohol concentration varies greatly among people and varies within a given individual over time. 11. Q: What's the difference between a breath test and a blood test? A. A blood alcohol test is the gold standard, assuming that the proper procedures are followed for the blood draw and testing. Even at its best, a breath test can do no more than provide an estimate of Blood Alcohol Concentration ("BAC"). For the average person, the ratio of BAC to Breath Alcohol Concentration ("BrAC") is approximately 2100:1. New Hampshire, and other states, have codified this average into law by defining alcohol concentration alternatively as BAC or BrAC. The problem with this is that some people are not average and their BrAC may not accurately reflect their BAC. Thus, a breath test does not accurately reflect BAC for all persons. A breath testing machine may also be affected by mouth air. If you swish shot of whiskey around in your mouth for ten seconds, spit it out and then immediately take a breath test, the machine will report an incredibility high BrAC even though your BAC would be close to zero. To eliminate the problem with mouth alcohol, New Hampshire law requires a twenty minute waiting period prior to the administration of breath tests. The alcohol is supposed to dissipate during those twenty minutes. However, if there are foreign objects in the mouth (such as chewing tobacco, dentures, etc.) then there is a small possibility that alcohol will remain in the mouth during most or all of the waiting period. The State's experts claim this is not possible but the literature suggests that in certain circumstances it could be a problem. A breath testing machine may not be able to distinguish alcohol from a few other chemicals. There are several series of intoxilyzer 5000 machines in New Hampshire. Some screen for a few more chemicals than others. In fairness, there are very few chemicals which are likely to result in an increased BrAC. However, if you were exposed to any unusual chemicals on the day of your intoxilyzer test, be sure to let your lawyer know. A breath testing machine can be significantly effected by mouth temperature. Mouth temperature, in turn, will be higher if the driver has a fever. It would take far to long to explain all of the issues with breath testing technology. The bottom line is this: The intoxilyzer 5000 machines used in New Hampshire are very good but they are not perfect. If you had only one or two drinks, and you are not impaired, taking the breath test may demonstrate your innocence. In other cases there is often something to argue about. 12. Q: What should I do with the plastic bag that contains the Òsecond sampleÓ of my breath? A: Don't open it! Place the sealed bag in a safe place and give it to your lawyer at your earliest opportunity. This is very important because you are entitled to have the second sample tested by an independent laboratory (at a cost of around $110). If the test reports are inconsistent with the intoxilyzer result, you may be able to suppress the intoxilyzer result at your DWI trial and your ALS hearing. 13. Q: How do I get a copy of the police reports in my case? A: Your lawyer will request "discovery" from the prosecutors office and all of the relevant police reports should be provided. Your lawyer should also obtain copies of any cruiser and booking videos if they were made as well as the maintenance records for the intoxilyzer if there was a breath test in your case. If you are representing yourself in court (which is not advisable), you should write to the prosecutor to obtain this information. 14. Q: What is IDIP? A: It is the Impaired Driver Intervention Program. This is a twenty hour course which persons convicted of DWI, First Offense must take prior to restoration of their driving privileges. The course costs approximately $460. An intensive weekend course is available. The N.H. Division of Motor Vehicles maintains a statewide list of approved IDIP programs here, although you will likely have to attend a program in your locality. The courts provide this brochure to explain the IDIP and WIDIP programs and it contains phone numbers for the program in each "catchment" area in the state. If you reside in another state you will can attend an IDIP program in New Hampshire or a state approved IDIP program in the state in which you reside. You should make sure that an out of state program is acceptable to the New Hampshire DMV before you enroll. At the conclusion of the IDIP program you will be evaluated for follow up treatment. Your license or privilege to drive in New Hampshire will not be restored until you have successfully completed all follow up treatment. This may include participation in individual alcohol counseling or in a self-help program such as, for example, alcoholics anonymous. If you object to the IDIP's recommendation for follow up treatment, you may obtain a second opinion from a licensed alcohol and drug abuse prevention counselor (LADAC) at your own expense. You can appeal a recommendation of follow up treatment to the Department of Safety. The Department of Safety provides a downloadable appeal form here. The Department of Health and Human Services maintains an information sheet on IDIP programs here. Note that under the HHS regulations, follow up treatment should be automatically recommended if the driver's alcohol concentration was .16 (or .08 if the driver was under 21). Follow up treatment should also be automatically recommended if the driver had multiple alcohol or drug related motor vehicle arrests. The regulations set forth fairly detailed criteria to determine whether follow up treatment should be ordered on other grounds. For those who are interested, the HHS administrative rules which govern IDIP programs are published by the State of New Hampshire here. 15. Q: What is ÒMOPÓ A: MOP is the State's seven day residential Multiple Offender Program. Persons convicted of (a) Aggravated DWI and (b) DWI, Subsequent Offense must complete MOP at a cost of approximately $1,200. Persons who plead guilt to DWI, First Offense but who have a prior DWI conviction on their record must complete MOP or an equivalent "Phase II" program. The Department of Health and Human Services maintains an information sheet on MOP and other Phase II here and here. At the conclusion of MOP or a Phase II program, you will be evaluated for follow up treatment. Your license or privilege to drive in New Hampshire will not be restored until you have successfully competed all follow up treatment. For more information about follow up treatment, and your right to contest a recommendation for follow up treatment, please see Question 13 above. 16. Q: What Can I Do If The Officer Had No Good Reason To Stop My Car? A: Generally, an officer needs reasonable suspicion of criminal activity in order to detain a motor vehicle and its occupants. This Fourth Amendment standard is satisfied if the officer observes a moving violation such as speeding or an unsignaled turn. The officer may also have reasonable suspicion if he observes erratic operation consistent with impairment. If the officer lacks reasonable suspicion, the court should suppress all of evidence resulting from the stop. In the DWI context if a motion to suppress is granted, the case is usually resolved in the defendant's favor. Your lawyer should carefully review the police reports and interview you to determine whether you may have a valid motion to suppress. Unfortunately, the exclusionary rule does not apply in ALS proceedings. This means that even if you win your motion to suppress in court, the ALS case will continue to its conclusion. 17. Q: How come I didn't get Miranda Warnings? A: The police need to give Miranda warnings prior to post-arrest custodial interrogation. Generally, there is no need to give Miranda warnings in connection with roadside questioning during an investigative detention. As a practical matter this means that Miranda warnings are not required in DWI cases until the driver is arrested. Your lawyer should carefully review the police reports and interview you to determine whether you may have a valid motion to suppress any statements that you made to the police. 18. Q: What happens if I drive after my license is suspended or revoked? A: Driving after suspension or revocation is a serious crime. If you drive while your license is revoked for DWI, you may be prosecuted for a Class A misdemeanor and sentenced to a mandatory minimum 7 days in jail and a maximum of one year in jail. Additionally, your license will be revoked for an additional year and the conviction will count as a ÒmajorÓ habitual offender offense. 19. Q: Does New Hampshire have a hardship license for persons who need to drive to work (or elsewhere) even though their license or privilege to drive in New Hampshire is suspended or revoked? A: No. And there's not much public transportation in this state either. 20. Q: I live in another state. Will I be able to drive in my home state if I lose my privilege to drive in New Hampshire? A: New Hampshire can only revoke or suspend your privilege to drive in New Hampshire. However, all states are parties to an interstate compact that requires them to suspend the license of any person who has lost their privilege to drive in another state. Therefore, your home state will likely suspend your license and you will not be eligible for reinstatement until your privilege to drive in New Hampshire is restored. Your home state may also choose to impose an additional period of suspension or revocation for a New Hampshire DWI conviction or ALS suspension. You should consult with an attorney from your home state. 21. Q: I live in New Hampshire and I was driving with a New Hampshire license at the time of my offense. Will I be able to drive in other states if my New Hampshire license is suspended or revoked. A. No.