AN OVERVIEW OF DRIVING WHILE INTOXICATED IN NEW HAMPSHIRE NEW HAMPSHIRE LAW:(note new law, effective 1/02/2013 in RED)
Driving While Under the Influence of Drugs or Liquor, Driving with Excess Alcohol Concentration;
No person shall drive or attempt to drive a vehicle upon any way:
(a) While such person is under the influence of intoxicating liquor or any controlled drug, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a person's ability to drive, or any combination of intoxicating liquor and controlled drugs; or
(b) While such person has an alcohol concentration of .08 or more or in the case of a person under the age of 21, or .02 or more.
There are normally two parts to a DWI charge in New Hampshire: The Department of Motor Vehicles; and The Court.
WHAT HAPPENS AT THE DIVISION OF MOTOR VEHICLES? Within ten days of your arrest the police will notify the DMV that you have been accused of driving while intoxicated. The DMV will issue an “administrative license suspension” of 180 days if this is your first offense or 2 years if this is your second offense. The administrative license suspension (also called “ALS”) goes into effect 30 days from the date of your arrest. The police should have given a pink copy of the suspension notice to you. Your New Hampshire license was likely confiscated by the police and the pink copy of the suspension notice serves as your temporary driving permit. If you have an out-of-state license, you will be permitted to keep it, but your driving privileges in the State of New Hampshire will still be administratively suspended 30 days after your arrest. The administrative license suspension, if imposed, is generally reciprocal in your home jurisdiction if you are not New Hampshire licensed. (BLOOD TEST: If you took a blood test the results can be delayed and therefore, so will this entire process including the appeals process outlined below.)
You have 30 days from the date of your arrest to appeal the ALS. A timely mailed appeal will result in a hearing being scheduled at the DMV. It may be possible to negotiate in advance the results of the hearing with the police department. If this is possible, you can sometimes avoid an ALS hearing and receive a shorter license loss. (This negotiation is usually contingent on working out a plea on the criminal charge as well.) If you go forward with the ALS hearing at the DMV and win, you will still face criminal charges in court. It is difficult to win an ALS hearing because the standard of proof is a preponderance of the evidence and the issues are more limited than in your court trial.
The “ALS” will run concurrent to the court imposed suspension so long as you agreed to the breath or blood test. If you refused to take either test, the ALS and the court suspension will run consecutively. Even if you are found not guilty of the DWI charge, once the ALS revocation goes into effect that license loss remains in effect. It is critically important to retain an attorney early in the process to minimize the likelihood of this DMV imposed license revocation from going into effect.
WHAT HAPPENS IN COURT? Your first court date is usually your arraignment and not your trial. The purpose of an arraignment is for you to be told by the Judge what you are charged with and what the penalties are if convicted. It is also when you must enter a plea of guilty, not guilty or no contest. Typical you will plead not guilty at your arraignment. This gives you time to obtain a copy of your police reports, review the case and determine your best course of action. At trial the State must prove each and every element of its case beyond a reasonable doubt.
A new law exists for arraignments on DWI cases:
RSA 265-A:3-a To the extent practicable, a law enforcement officer charging a person with violation RSA 265-A:2 or A:3, shall schedule an arraignment on such charge to take place no later than 14 business days after the date of the violation.
Some local courts address bail again at your arraignment; this could result in in you being held (incarcerated) until somebody pays your cash bail. It is critical for you to know the practice of your particular court prior to going to your arraignment. Nobody knows how the new law can, or will be implemented given the staffing shortages in the district courts. It is clear the need for a lawyers help, earlier in the process, will be required given the change in the law.
If you pled NOLO that is the equivalent of a guilty plea in New Hampshire, it only provides you some minor protections if you are at risk of being sued in civil court.
A plea of NOLO, no contest or “admission to sufficient facts” are all equivalent to a guilty plea and will result in record of conviction in New Hampshire. Things such as a “general continuance”, “continuance in contemplation of dismissal” or a “CWOF” do not exist in New Hampshire.
The new law requires anybody convicted to submit to an "alcohol and drug abuse screening with 14 days of conviction, and, if testing demonstrates the likelihood of a substance use disorder, to submit further to a full substance use disorder evaluation within 30 days of conviction". Thus, prior to going to court, you should have a clear understanding of the process, the required timelines, and what will be required of you.
DWI 1st offense (class “B” misdemeanor) -$500.00 fine, plus penalty assessment of 24%; -90 day minimum loss of driving privileges in New Hampshire (up to 2 years)(Under 21- minimum 1 year loss!); -State sponsored alcohol class-“Impaired Driver Intervention Program” and any recommended follow-up therapy; and -Proof of auto insurance must be filed with the DMV for 3 years following conviction (“SR-22”).
DWI 2nd offense (class “A” misdemeanor) - $750.00 fine, plus penalty assessment of 24%; - 3 year loss of driving privileges in New Hampshire; - 10 days incarceration (3 days in jail and 7 are at the Multiple DWI Offender School.); and - Proof of auto insurance must be filed with the DMV for 3 years following conviction (“SR-22”). - Alcohol ignition interlock on your car
DWI Aggravated (Breath Alcohol Content is a .16 or above or you were in an auto accident, traveling over 30 mph, evading the police) (class “A” misdemeanor) - $750.00 fine, plus penalty assessment of 24%; - 1 year loss of driving privileges in New Hampshire; - Same mandatory incarceration as a second offense and 7 day alcohol program; - Alcohol ignition interlock on your car; - Proof of auto insurance must be filed with the DMV for 3 years following conviction (“SR-22”).
Although the DMV appeals process of the ALS happens very quickly, your trial in district court may be several months away. In most cases you will be entitled to a trial by Judge only (no jury) and if you are charged with a DWI 1st offense your only appeal is to the Supreme Court. (A DWI 2nd and a DWI Aggravated are misdemeanors that involve incarceration and you may have an intermediary appeal to Superior Court for a jury trial before appealing to the Supreme Court.)
If you are convicted of any form of DWI in New Hampshire, including a first offense, you will have a criminal record. If you are convicted of a first offense however, your lawyer can petition the court a year after the conviction to seek to have it reduced to a “violation” (non-criminal) offense.
COMMONLY ASKED QUESTIONS: Does it matter which lawyer I hire?
Yes. DWI defense is highly complex, from the standardized field sobriety testing, the workings of a portable breath testing devise to the margin of error in the intoxilyzer 5000 and the ability of the human body to absorb, distribute and eliminate alcohol. I have the knowledge to advise you of what to expect when you go to court as well as the best defenses you have. I can provide you with the names of other New Hampshire attorneys with solid reputations in DWI defense so you can be fully informed in making a decision about which lawyer is best suited to defend you.
Further, this firm focuses exclusively on criminal practice, with the bulk of that concentrated in DWI defense. We are hired by members of law enforcement, family members of court staff and others with knowledge of the criminal justice system for a reason. We have decided not to embrace the marketing strategy of a web site full of generic or wrong information about DWI defense, testimonials from a handful of clients or "credentials" from organizations that simply require a check to endorse you. This is truly what we do, where we do it.
If I am convicted can I get a “work” or “restricted” driver’s license?
Yes, in a very limited way. As of January of 2016 New Hampshire enacted RSA 263:57-b which permits a very limited "work" or "restricted" right to drive after you suffer a minimum 45 days of license loss. The requirements of this type of license are complex and, for many, the relief it provides very different and less helpful then other states that have a "restricted" license. Even if your home jurisdiction permits a more liberal restricted or work license, if you are convicted in New Hampshire, it is unlikely you will qualify for that form of restricted license in your home jurisdiction but must comply with the New Hampshire requirements.
Do I have to pay my fine in full the day I go to Court?
Generally yes. The Court may allow you to make time payments, some courts do require your fines to be paid on the day of court, please ask regarding the practice of your court.
Do I have to get auto insurance after a DWI conviction?
Yes. In order to get your driving privileges restored you must have an insurance carrier fill out a form supplied by the DMV called SR-22. The SR-22, or proof of insurance, must remain in effect for 3 years following the conviction.
Will I have a criminal record?
Yes, your lawyer can file a motion with the court after a year for a first offense to attempt to have it amended to a non-criminal offense. It does not happen automatically.
What happens if I drive while my license if suspended for DWI?
You will go to jail for at least 7 days and up to one year and you may lose your license for an additional year.
Will this add points to my license?
Yes. A DWI is 6 points. You can take a defensive driving class and it will take 3 points off.
What is the Habitual Offender law?
If you are convicted of 3 major motor vehicle offenses within a 5 year span, you can be certified as a habitual offender and lose your license for up to 4 years. DWI is a major offense as are Operating After Suspension, Reckless Driving, Conduct After an Accident, Disobeying a Police Officer and Taking Without the Owner’s Consent. You can also be certified for a combination of major and minor offenses such as speeding. If your driving record contains more than five minor convictions or 2 major convictions you should be concerned about this law. If you are caught driving after certified as a habitual offender you could be sentenced to one year in jail.
What is this thing called an Alcohol Ignition Interlock? The New Hampshire Interlock program
Andrew Cotrupi, Esquire, 428 Lafayette Rd., Suite 102, Hampton, NH 03842 Phone: (603) 926-5818 Fax: (603) 758- 6376