WHAT YOU NEED TO KNOW ABOUT DWI DEFENSE IN NEW HAMPSHIRE.
What is the difference between DWI, DUI and driving while under the influence of intoxicating liquor?
In New Hampshire, DWI and DUI both stand for driving while under the influence of intoxicating liquor or drugs. DUI is shorthand for driving while under the influence; DWI is shorthand for driving while intoxicated, which is what the offense was commonly called years ago. Driving while intoxicated, however, is no longer an accurate description, for one does not have to be intoxicated, to be under the influence. In the language of the law, intoxication is a much stronger term, suggesting someone who is drunk, or grossly impaired by alcohol. In order to be under the influence, within the legal meaning of that term, one's ability to drive a motor vehicle only need be impaired to any degree. Today, DUI is the more appropriate abbreviation for the offense of driving while under the influence of intoxicating liquor or drugs, although I, and many others in New Hampshire still more commonly use the abbreviation DWI.
What happens at my first court appearance?
The first court appearance is called an arraignment; the arraignment date is shown on your summons , complaint, or bail receipt. If you are considering hiring a lawyer to help you, you should not wait for your arraignment, since you may lose legal rights and advantages prior to the arraignment date. At arraignment you will be read the complaint or complaints against you, and then you will be asked to enter your plea.
What is the legal blood alcohol limit in New Hampshire? Is the legal limit the same if I am under 21? What if I have a CDL?
For those twenty-one years or older, the legal limit is .08%; for those under 21 the limit is .02%. If you took a breath test that is at the legal limit of 0.08 or 0.02, you may nevertheless be able to avoid having your license suspended unless you are convicted of DWI. For estimated blood alcohol concentration: See tables. If you hold a Commercial Driver's License (CDL), but are not charged with operating a commercial vehicle, the limit is the same as the limit that would be applicable to you on a regular DWI, 0.08 or 0.02 for those under 21. All CDL drivers should understand that a DWI conviction or an administrative license suspension for either refusing or failing a chemical test while operating any vehicle will result in a minimum one-year revocation of their CDL. Drivers charged with operating a commercial vehicle while under the influence not only face more serious penalties, but also are subject to a .04% limit. Even at lower levels, commercial drivers may face other penalties, for it is unlawful to drive a commercial motor vehicle with any detectable presence of alcohol. For estimated blood alcohol concentration: See tables
If my test results are at or above the legal limit, am I automatically guilty?
No, you are not. It is often possible successfully to contest breath and blood alcohol test results. Test results may be suppressed if obtained in violation of your administrative, statutory, or constitutional rights. The results of such tests may be discounted by the judge or jury if the police made errors during sample collection, or if you have one of a number of medical conditions that can falsely elevate blood alcohol results. In some cases, the tests results may prove meaningless if your attorney presents a defense that challenges an element of the government's burden of proof other than impairment/BAC level.
Further, you have an absolute right to plead not guilty, even if your blood alcohol level was over the legal limit, or if you think you are, or may be, guilty. A plea of not guilty simply means that you require the State to prove that you are guilty. When you plead not guilty, a trial will be scheduled at a later date; at that trial, the State will be required to prove, beyond a reasonable doubt, through witnesses, each and every element of the offense with which you are charged. If it fails to do so, you will be found not guilty.
At arraignment you will be read the complaint or complaints against you, and then you will be asked to enter your plea. You may plead not guilty, guilty or in some cases, nolo contendere. If you plead guilty or nolo , you give up all your rights, including your right to a trial, and you will be found guilty and sentenced by the Judge at that time. He or she may sentence you anywhere between the maximum and minimum penalties for the particular offense. If you wish to contest the charge against you, do not plead guilty or nolo contendere, but enter a plea of not guilty instead. If our office is retained to represent you sufficiently far in advance of the arraignment date, you may be able to avoid having to appear at the arraignment, saving you an unnecessary court appearance.
Prior to your entering a plea of guilty or nolo contendere, you should know that even for the lowest level of DWI offense you may be fined from $500.00 to $1200.00 (plus a 24% penalty assessment) and receive a license loss of between ninety days and two years, in the discretion of the court. If you are charged with the more serious offenses of aggravated DWI or DWI 2nd offense, you face a mandatory jail sentence if convicted and a substantially longer minimum license loss than for a regular, first offense DWI. Drivers under 21 and drivers transporting children under 16 at the time of operation face even higher minimum penalties. Also, for any DWI conviction, you will have to complete a state-approved DWI education program of a minimum of twenty hours to as much as 28 days prior to restoration of your license. Other consequences of conviction include higher insurance rates, probationary license, and resulting increased penalties for future motor vehicle offenses, including DWI subsequent offense. For more specific information on the consequences of a DWI arrest, see PENALTIES. In addition, convictions for aggravated DWI, DWI subsequent offense, or operating after revocation for DWI will result in your being required to equip your vehicle with an alcohol ignition interlock device for a minimum of one year.
Do I have a right to a jury trial?
If you are charged with a DWI first offense, you have a right to a trial before a judge, but you are not entitled to a jury trial. On charges of Aggravated DWI and DWI 2nd or subsequent offense, you are entitled to a trial by jury, but you may have to submit to a trial before a judge in the District Court first and then take an appeal to the Superior Court if you are convicted.
What else should I know?
In addition to the DWI charges that may be brought against you in court, if you either refused to submit to a chemical test requested by the police, or if you refused to perform physical tests after being arrested, or if you submitted to a test that is at or over the specific legal limit applicable to you, you will receive a notice of suspension from the New Hampshire Department of Safety, Division of Motor Vehicles. That suspension will be for no less than 180 days and can be for two years. In the case of your refusal to submit to a chemical test, the so-called Administrative License Suspension (ALS) law makes that loss consecutive with any other license loss; if you submitted to a test in excess or your legal limit, the Department of Safety suspension will run concurrently with your suspension for DWI. You are entitled to a hearing on the legality of the revocation order, but you or your attorney must request such a hearing in writing in strict conformity with Department of Safety regulations. If you do not request such a hearing by notifying the Department of Safety within thirty days, you can lose your right to a hearing. For more specific information on Administrative License Suspension, see ADMINISTRATIVE LICENSE SUSPENSION.
Is there any good news?
Yes, contrary to popular belief, many people are found not guilty of DWI. In addition, many other people benefit greatly from either a negotiated reduction of the initial charge or by receiving a lesser punishment than they might expect if not represented by counsel. Even if your DWI case is a difficult one, by hiring an experienced DWI lawyer to defend your case, you still may be able to obtain a substantial reduction of the severity of your sentence, including eliminating or shortening any possible jail sentence and/or considerably reducing the length of your license loss. In almost every DWI there is a substantial range from the best possible outcome to the worst possible outcome. Because DWI law has become more and more complex and difficult to master, especially for lawyers who do not deal with it often, it is now essential to consult a lawyer who is both knowledgeable and experienced with DWI defense. An accomplished, experienced, and hard-working DWI defense attorney can frequently use the complexity of the law to the benefit of his clients and minimize the serious consequences that your encounter with the legal system can have on your life. With the severe penalties and other consequences of DWI conviction or ALS suspension may have, it simply makes sense to contact an attorney to determine whether you may benefit from defending your DWI case. Recently, DWI penalties have been significantly increased and made to apply to more situations than ever. It is now more important than ever to understand and explore whether you can benefit from hiring a DWI defense attorney. At LOTHSTEIN LAW OFFICE, the initial consultation and evaluation of your New Hampshire DWI/DUI cases is free, and it is firm policy to evaluate and assess your case honestly, and to let you know how much it will cost, so that you can make an informed decision whether to retain us as your counsel. Please do not delay; I cannot emphasize too strongly how delay can only hurt your chances.