? TED LOTHSTEIN AND GENE STRUCKHOFF - AN EXPERIENCED NEW HAMPSHIRE DUI/DWI DEFENSE TEAM

LOTHSTEIN GUERRIERO, PLLC

TED LOTHSTEIN AND GENE STRUCKHOFF - AN EXPERIENCED NEW HAMPSHIRE DUI/DWI DEFENSE TEAM

THE IMPORTANCE OF DEFENDING DWI/DUI CASES

Throughout the more than thirty years that I have defended DWI/DUI cases, I have often been asked, "Why do you defend DWI's? How can you defend people who are guilty? Don't you know how awful DWI is?" Although I sometimes give easy and light-hearted responses to deflect the question, it is truly important that some of us in the defense bar represent the accused in these unpopular cases. My favorite non-responsive response actually contains the essence of the real importance of defending DWI cases. That smart response is, "If I defend someone who is not guilty or is innocent, and he or she is acquitted, all I have done is to accomplish something that should have taken place anyway, the acquittal of a person who should never have been convicted, but, if I get someone off of a DWI who is guilty, now that is a piece of work!"

These words in quotation marks in the response are the essence of why DWI/DUI defense, in particular, and criminal defense, in general, is so important. First of all, everyone is not guilty. No one is guilty until proven guilty in court. Each of us is born not guilty and presumed innocent in the eyes of the law. We remain that way until the government not only alleges the commission of a criminal offense, but then proves the truth of that allegation beyond a reasonable doubt. It is the absolute right of every citizen to plead not guilty and require the government to prove its allegations in court. A plea of not guilty simply notifies the State that the accused requires that the government prove the truth of its charges.

Our criminal justice system is based on the adversarial system, state and prosecutor on one side, defendant and defense counsel on the other. Our system requires the opposition of these two counterbalancing forces in the legal arena to create justice. We, the people, through the United States and New Hampshire constitutions, created the government, the law, the police, and the position of prosecutor in order to protect all of us from those who violate the law. In creating the government, however, we also wisely placed limits on the power of the government, the police, and the prosecutor; our constitutions define those limits.

The genius of our form of government has long been demonstrated by the success of the checks and balances created by the framers of our constitutions, not only in the interaction of the executive branch, the legislative branch, and the judicial branch, but in the interaction of the prosecution and the defense under the rule of law. As each branch of the government has been endowed with powers to prevent the other branches from abusing power, so has the prosecution and defense each been granted the power to prevent abuse by the other. Without a prosecutor endowed with power by the law, there would be anarchy; without a defense attorney to enforce the limits on the law, there would exist the threat of tyranny, the arbitrary abuse of power by the government.

It is both easy and rewarding to do my duty to the criminal justice system, and in the process, to defend against the threat of tyranny.

What kinds of tyranny threaten individual rights in a democracy such as ours? What does any such threat have to do with DWI? Everyone knows that DWI is a menace to society and needs to be deterred and prevented. I agree. Yet, I believe that such a threat exists today, is real, and that the DWI enforcement creates the greatest motivation for, and threat of, the abuse of power by the government.

Because DWI is so universally condemned, our society has been willing to permit the government to take measures to eliminate it. Penalties are routinely raised, mandatory minimums have been created and increased, new tools have been created to make the prosecution's task easier, and new, more serious DWI offenses, such as aggravated DWI have been created to provide for greater punishments. Blood alcohol levels for DWI have been substantially lowered. Each session of the legislature, new, tougher DWI legislation is introduced, and passed; it is fashionable, especially for politicians, to be firmly against DWI. Likewise, most judges do not wish to be perceived as anything but tough on DWI.

In society's desire to win the war against drunk driving, it is easy for our most sacred institutions to fall victim to the flawed philosophy that the end justifies the means. Even the use of the word war in the context of the enforcement of the criminal law suggests the danger, for it is during wartime that it becomes easiest for the government to marshal support for special powers, special prohibitions deemed necessary to win the war. Merely remember the internment camps for Japanese-Americans during World War II. Since September 11th, we have all learned to appreciate our police, firefighters, and FBI. We all want to help in the war that we now wage on terrorism, a war I firmly believe we must wage, and win. That belief, however, does not mean that we need to abandon or diminish the constitutional protections that our troops are fighting to protect for all of us citizens. During war and national crisis we are prone to lose our objectivity, our historical perspective, and our reverence for those democratic principles that have served us so well during times when there has been no war, no crisis to blur our vision of what we have stood for over two hundred years. We need to remain vigilant not only to the threat from abroad, but to the threat to our liberties in areas not related to combating that threat.

Over the last thirty years, DWI law has changed substantially. The most obvious change is the lowering of the legal limit from 0.15 to 0.08 (0.02 for those under twenty-one). Clearly, 0.15 was too high a limit; most people at 0.15 or higher are truly intoxicated, drunk, and not merely slightly impaired. This reduction by the legislature was a legitimate and needed change in the substantive law. Similarly, now, prior to restoration following a DWI conviction, one must satisfactorily complete an alcohol education program approved by the State; this change to a rehabilitative approach is also desirable and undoubtedly contributes to highway safety for all of us. Changes such as the two above truly are of benefit to all of us and should be applauded.

Many other changes in DWI law enacted over the last thirty years to aid the police in the prosecution of DWI offenders, however, have created a significant threat to our historical fundamental rights. In 1970, a person charged with DWI, first offense, had a right to trial in the local district court, and, if convicted, a right of appeal to the Superior Court, where he or she had the right to a trial either by jury or by judge. Today, both the right to trial by jury and the right of an appeal to the Superior Court have been eliminated for DWI, first offense. The elimination of the right to trial by jury was accomplished by eliminating the possibility of a jail sentence of up to one year, thereby reducing DWI from a misdemeanor to a violation. Since no one ever was sentenced to jail for a first offense DWI anyway, the true effect, and intent, of the change, however, was not to downgrade the offense, but to eliminate the right to trial by jury and the right to appointed counsel. Now, we are left with a single trial before, most likely, a part-time judge.

Similarly, in 1993 the enactment of the so-called Administrative License Suspension (ALS) law created procedural and substantive changes that have since led to a significant reduction in traditional and constitutional rights. An administrative license suspension is an order issued initially by an arresting police officer during the DWI booking process, informing the arrestee that his or her license or right to operate is being suspended for either six months or two years, depending on past record, for having being arrested for DWI and either having submitted to a test that is at or over the legal limit, or for having refused to submit to a chemical test. You are not entitled to a trial or a hearing prior to the suspension becoming effective. You are not issued a date for a trial or hearing; you merely are given notice that your suspension will go into effect in thirty days, and, if you read the fine print on the back of the form, that it is up to you to request a hearing to question the legality of the officer's action.

At that hearing, you do not appear before a judge who is independent and appointed until the age of seventy by the Governor and the Executive Council, your case is heard and decided by an employee of the Department of Safety whose job depends upon his performance as perceived by his superiors. At that hearing, you are not protected by the rules of evidence; you have no right to subpoena witnesses in your defense; hearsay documents rather than live testimony is accepted into evidence, resulting in the loss of the right to cross-examine. The trial system that has served as the basic protection of our citizens against their government is today not only under attack, but it is in full retreat. In order to avoid a loss of license, the accused must prevail in both proceedings. In 1970, the defendant had two chances to win, one in the District Court and one in the Superior Court on appeal. Today, the government gives itself two parallel but separate chances to win. One of the effects of the changes is to make DWI defense substantially more time-consuming and therefore more expensive for those who wish to obtain legal defense. It is my personal view that such changes to the law have been expressly tailored, at least in part, to deter defendants from contesting DWI charges.

The ALS law has also diminished the right to be informed of the information necessary to make the decision whether to submit to a chemical test. Prior to the ALS law, arrested DWI defendants were informed of their various implied consent rights by the reading of a Department of Safety Implied Consent Form. That form contained information designed to inform the arrestee of the consequences of the decision whether or not to submit to chemical testing. It informed the defendant that if he or she refused the requested test, then his or her license would be suspended for the length of time specifically set forth in the form; at different times, that suspension was either sixty, ninety, or one hundred-eighty days. Today, under the ALS law, the State deliberately chooses not to inform the arrestee of the time period of the revocation. He or she is informed only that his or her license or right to operate will be revoked. If the defendant asks how long the revocation will be, the officer may, and often does, inform the defendant that he or she is not entitled to that information. DWI defendants are now required to make the often crucial decision on whether or not to submit to a chemical test based primarily on information previously acquired on their own. The State clearly chosen not to inform the defendant on this important information prior to making his or her decision, because the time limits for revocation, and other information needed to make an intelligent decision are accurately set forth on the back of the form. Although the back side of the form is not read prior to the defendant�s making his or her decision, many officers, upon release of the defendant after processing, strongly suggest that he or she read the information contained on the back of the form. To intentionally deprive people of information necessary to an informed choice is fundamentally unfair.

The ALS form is not the only area in which the State has chosen not to inform the public of its obligations under the DWI section of the Motor Vehicle code. Do you know that you do not have to drive to be guilty of driving while under the influence? Do you realize that merely starting you car in order to keep warm instead of driving home under the influence can lead to your conviction for DWI. You can, for driving is defined as being in actual physical control of a motor vehicle. The language defining driving is buried deep in a statute far removed from the DWI statute and known only to motor vehicle legal experts. Read the New Hampshire Driver's Manual cover to cover as I recently did and you will find nothing that in any way suggests that sleeping in a running vehicle might constitute driving. Do you know that your own driveway is no longer private? That's right, in New Hampshire, the police now have every right to enter your driveway and take you out of your own vehicle, just as if you were parked on a public highway. Thanks to the New Hampshire Supreme Court no longer have the simple concept of public property versus private property. Since the 1997 decision in State v. Pinkham, we now have semi-private property, which includes your driveway. It is property that used to be private, but because the New Hampshire Supreme Court did not want to allow Mr. Pinkham to be found not guilty of DWI, it invented a brand new kind of property, property which had always been considered private, but is now declared "semi-private." Want to make your driveway private? You had better post a sign at the base of your driveway reading, "Private. No trespassing. No police or government employees allowed without a warrant."

Pinkham is just one example of the erosion of long-standing constitutional rights, created by the end justifies the means judicial reasoning that the war on drunk driving has produced. Today, we are at a new level of escalation of the war against DWI. Fundamental and long-cherished rights and institutions have and are being targeted. The historical right to a trial before a neutral finder of fact is severely weakened today and under continual attack. The State has a new theory that it currently successfully advances that allows the government to impose punitive sanctions on people for violations of law without the benefit of any trial. Some brilliant bureaucrat (Now, there's an oxymoron!) came up with a clever semantic ploy -- simple rename what historically was a crime -- a violation of society's rules resulting in the imposition of a penalty according to law. Yes, merely rename it; call it a civil violation, not a crime or a criminal violation, and the State no longer must afford people their historically and constitutionally protected rights. Today, the police may arrest an accused for DWI. (Sounds criminal to me, since we arrest people for crimes.) If the accused either takes a test and fails that test or refuses a test, the State institutes not only a criminal prosecution in court, but also a parallel civil proceeding, an Administrative License Suspension before the department of safety seeking to punish by revocation of driver's license for either six months or two years, depending on prior record. In that administrative proceeding, the State is statutorily exempt from affording us many of the rights to which we have been entitled. We have all lost rights due to this exercise in semantics. Label it criminal and we retain our historical trial rights; label it civil and the government is free to deny these rights. Down this road lurks tyranny.

The most tragic recent casualty in the war against DWI is the Constitution and the Bill of Rights. For over two hundred years, we have been protected in our homes by the Fourth Amendment to the United States Constitution and by Part 1, Article 19 of the New Hampshire Constitution. On August 28, 2000, the New Hampshire Supreme Court fell prey to the assault being waged on the Constitution by the legislative and executive branches when it decided the case of Lopez v. Director. The Court, weakened by the ongoing impeachment of its Chief Justice and with only two actual Justices sitting, readily endorsed the State's argument that the State may use illegally obtained evidence in administrative license suspension hearings. There was, however, no opposition to the State's position; Mr. Lopez was not represented and not present; no written or oral argument was made in support of either Mr. Lopez or the view that the Constitution protects us against all illegal government action. We all lost rights as a result of Lopez. We lost them without any argument on our behalf. The Court's reasoning in Lopez is simple, ALS is not criminal, it's civil. The ominous implication of the Lopez decision is that the police have been given license by the highest court of this state to violate our constitutional rights. Although the police are not entitled to use evidence that they illegally obtain against us in the underlying DWI prosecution in court, the Department of Safety may ignore criminal constitution rights and take our driver's licenses away from us because that is civil, not criminal. Let there be no doubt about it, the Court has sanctioned illegal government action. The government cannot legitimately insist that its citizenry obey the law at the same time it exempts government institutions and their employees from obeying the law. On this hypocritical route lies the threat of tyranny.

The magnitude of the danger to liberty posed by the Lopez decision is dramatically pointed out by a Superior Court ALS appeal pending when Lopez was decided. In this case, police officers had entered my client's home, without a warrant or consent, arrested him for DWI, physically removed him from his home, and processed him for DWI at the police station. The prosecutor quickly dropped the DWI prosecution, because it was obvious to him that the evidence needed to convict my client of the criminal charge had been obtained in violation of his constitutional rights against unreasonable search and seizure. As a result of the holding of the Supreme Court in Lopez, the Superior Court ruled on this appeal that it made no difference that the necessary evidence may have been illegally obtained by the government, because Lopez clearly allows the admission of illegally obtained information at an ALS Hearing, based on the Court's belief that ALS is a so-called civil proceeding. This Superior Court decision was appealed to the New Hampshire Supreme Court. The appeal asked the Supreme Court to reconsider and to reverse its decision in Lopez, although this time after the presentation of a legal brief and oral from both parties, not just from the State. A convincing counterargument can and must be made. In fact, the highest Courts of many other states have ruled contrary to the decision in Lopez. None of those decisions, however, were brought to the attention of the Court in Lopez, because Mr. Lopez presented no legal argument or precedent, and the government's brief did not bring those opposing decisions to the Court's attention. On May 4, 2001, the Clerk of the Supreme Court sent out to counsel a notice of decision made by the Court on January 31, 2001, not to accept this appeal. The vote was unanimous not to review the issues presented; no reason was advanced for the more than three-month delay in announcing the decision, no explanation was given justifying the Court's decision not to review the issue presented in Lopez in a contested proceeding. As a result, the Court has permitted a major constitutional issue to be decided without allowing any argument to be made contrary to the position of the government, and Lopez will remain the law of the State of New Hampshire.

I, for one, was astonished by the Court's decision not to allow the issues decided in Lopez to be briefed and argued before the Court, for they are issues of major constitutional significance that the Court needed to have addressed in the manner it has historically addressed such issues of first impression -- after the presentation of briefs and oral argument on both sides of the issue. The Supreme Court's failure to allow the Lopez issues to be decided after presentation of the opposing point of view truly reveals how its preoccupation with its own defense has prevented the Court from dealing with the important issues before it. The Court has damaged its objectivity and its credibility, with the legislature, with the people of the State of New Hampshire, and with many members of the bar, who previously believed that in New Hampshire we have been served by a court grounded in principle and the rule of law, rather than in expedience and self-preservation. The Court must once again come to realize that it needs to hold itself and the rest of the government accountable to the same standard to which it holds us, its citizens. If I were to delay filing a notice of appeal one day beyond the thirty days allowed by Supreme Court rules, my client would forever lose his right to appeal; when the Supreme Court, without reason or explanation, delays more than three months in notifying counsel of its decision, there is no consequence for the Court, because the Court has chosen to exempt itself from abiding by the rule of law. The Court today needs more than a public relations reform; it needs to look within and once again recognize that it too is accountable to the Constitution and the rule of law.

For those of us who still believe that the extraordinary system of government under which we as a nation and a people have flourished so well and for so long is worth preserving, these deviations from historical precedents currently being made in the name of expediency are frightening indeed. Although many of the bad decisions that are being handed down by the Courts are in DUI/DWI cases, their future applicability will be widespread. Prosecutors and police officers in all kinds of prosecutions will use the holdings and the reasoning of these same cases to convict and to deny trials for other offenses. Those of us who believe in the intrinsic value of our constitutional legacy need to speak out against allowing our governmental institutions permanently to abandon the historical bases of our freedom in order to combat a present perceived evil. Not only those in the executive and the legislative branches who propose, enact, and enforce the law, but also those in the judicial branch who rule on the interpretation and constitutionality of these laws should carefully examine the long-term wisdom of their decision and heed the warning of Chief Justice Brock in State v. Morse, 125 N.H. 403 (1984) 480 A.2d 183 at page 409:

"[I]llegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, 116 U.S. 616, 635 (1886).

Gene Struckhoff -- Citizen, Lawyer