Normand & Associates -DWI ~ Criminal Law-

A misdemeanor in New Hampshire is a crime and will give you a criminal record.

The Class-A misdemeanor carries a maximum sentence of one year in the county jail plus a $2,000.00 fine. A Class-B misdemeanor carries no jail time but is still a “crime” that will create a criminal record. A class B Felony can carry a prison sentence of 3 ½ to 7 years and a class A Felony carries a sentence of 7 ½ to 15 years in state prison.

While every criminal charge is different, and no competent lawyer can promise a result, most of our clients charged with crimes receive sentences far less than the maximum sentence possible under the original charge. Many are found not guilty. Many subsequently reach a plea bargain arrangement for a lesser charge with more modest impacts on their lives. You and your family deserve a top-to-bottom review of your criminal charge by a competent criminal attorney.

If you have been charged with a crime, you already know that the experience was very stressful, embarrassing, and that you simply want to put it behind you as quickly as possible. Resist the temptation to simply plead guilty to the initial charge made by the police before you have had an opportunity to review all of the circumstances of your arrest.

The New Hampshire and federal constitutions afford you with many constitutional rights that are frequently violated by law enforcement and provide an opportunity to improve your situation, even if you made a mistake the day of your arrest. If you are accused of a crime, make certain that you seek competent legal advice.

Do not simply plead guilty to get it over with in your moment of embarrassment. You Have Options. If you are indigent, the court may appoint a public defender to represent you. You always have the right to hire your own attorney, who will provide you with individualized attention and service. We are experienced defense attorneys, handling all types of criminal offenses from DWI offenses to more serious felony charges.

You can always call Normand & Associates for a free telephone consultation so that you may gain an understanding of our individual rights and your options on how best to proceed.

If you have been charged with DWI, do not delay. The potential penalties are severe. You should seek the advice of an experienced DWI attorney immediately in order to preserve important rights. Attorney Al Hansen at the Normand & Associates Law Firm Concentrates on DWI Cases.

Penalties: Whether you know it or not, you impliedly consent to certain physical and/or chemical tests when you drive in this State and are arrested, and a police officer has reasonable grounds to believe you were driving while under the influence of alcohol and/or drugs. This is commonly known as Implied Consent or Administrative License Suspension (ALS).

If you submit to a test and your Blood Alcohol Content (BAC) is .08 or greater (.02 or greater for drivers under the age of 21), than the New Hampshire Department of Safety (D.O.S.) will seek to suspend your license for 6-months on a first offense, and 2-years for a second offense.

You can refuse such testing, but D.O.S. will nonetheless seek to suspend your license for the periods referenced above and your refusal will most likely be used against you in court. Moreover, any license loss imposed by D.O.S. will run consecutively to anything imposed by the court.

You have a right to challenge the ALS suspension, but must do so within 30 days or your right to do so will be lost! In most cases (except for cases involving blood draws), you only have 30 days from the date of your arrest to challenge the ALS suspension by requesting an Administrative Hearing at the D.O.S. in front of a Hearings Examiner. If you fail to request a hearing, your right to do so is forever waived. You would lose the opportunity to possibly prevent the ALS suspension. You would lose an important bargaining chip to use in plea negotiations with the State. You would lose the opportunity to question the arresting police officer(s) under oath and to obtain a transcript of this proceeding to use when plea bargaining and/or at the time of your trial in court.

Many people wonder whether they should submit to testing or not (including field sobriety tests). Generally, if you think you are over the legal limit, do not submit to testing. If you feel you are below the legal limit, take any tests offered to you. Most people are able to metabolize one drink per hour. In addition to the ALS, you must also deal with the court case that follows a DWI arrest. A first offense DWI is now considered a crime in the State of New Hampshire and carries a mandatory minimum penalty that includes a $500 fine and a 9-month loss of license. In order to get your license reinstated, you must also complete what is referred to as the Impaired Driver’s Intervention Program (IDIP).

A second offense within 2 years of the first carries a 3-year loss of license, a $750 fine, and a mandatory 30-day jail sentence, followed by a 7-day residential intervention program. A second offense committed beyond 2 years of the first, but within 10 years, carries a 3-year license loss, a $750 fine, and a mandatory 3-day jail sentence, plus the 7-day residential intervention program.

The penalties get worse the more convictions you have. And a fourth offense can now be charged as a felony in New Hampshire.

In addition to the penalties described above, a DWI conviction can have collateral consequences depending on other factors, such as the type of license you hold (e.g. CDL), your motor vehicle record (Habitual Offender), immigration status, employment status, etc. For example, many people would never guess that a DWI conviction can result in certain travel restrictions (e.g. entry into Canada and other countries). You should consult a lawyer about the specific facts and circumstances surrounding your case.

In order to establish probable cause to arrest, the investigating officer will typically employ a battery of standardized field sobriety tests consisting of (1) the Horizontal Gaze Nystagmus test (HGN), (2) the Walk-and-Turn test, and (3) the One-Leg-Stand test.

These tests are difficult to perform even if you are sober. But what is even more unfair is while the investigator will explain, and should demonstrate, how to perform the tests, he or she will not tell you about the clues they look for in determining whether you pass or fail. Beat the Field Sobriety Tests.

For example, when conducting the HGN (nystagmus = involuntary jerking of the eyes, normally almost imperceptible, but exacerbated by elevated levels of blood alcohol), the officer will tell you that he is going to check your eyes. He will instruct you to keep your head still and follow the stimulus (usually a pen), with your eyes only, and to keep focusing on the stimulus until he tells you to stop. He is supposed to hold the stimulus 12-15 inches from your nose. In addition to the three standardized clues [(1) lack of smooth pursuit: eyes unable to track stimulus smoothly; (2) distinct and sustained nystagmus at maximum deviation: jerking more pronounced when no white showing in the corner of your eye; (3) onset of nystagmus prior to 45 degrees: eyes start jerking before the pen reaches 45 degrees (0 degrees being the starting point straight out in front of your nose)], the officer will note whether you are able to follow instructions – typically whether you’re able to remember to keep your head still and follow the stimulus/pen with your eyes only. At the start of the test, he will not tell you that if you fail to do this, he will note it in his report as a sign of impairment.

When the officer conducts the Walk-and-Turn, he will begin with the Instructional Stage and tell you to place your right foot in front of your left foot, touching heel-to-toe. Keep your arms down at your side. Hold the position until told to begin. He will then move on to the Demonstration and Walking Stage and tell you to take nine heel-to-toe steps down a line (imaginary line if no line exists), turn around, and take nine heel-to-toe steps back. The officer will tell you that when you turn you should keep your front foot on the line and turn by taking a series of small steps with the other foot. When walking, keep your arms down at your sides, watch your feet, and count your steps out loud. The police officer will not tell you that he or she will look for eight clues. Whether you can (1) keep your balance during the instructional stage (whether your feet break apart), (2) start before being told to begin, (3) stop while walking to steady yourself (more than a couple seconds), (4) do not touch heel-to-toe (1/2 inch or more), (5) step off the line (one foot entirely off the line), (6) use your arms to balance (raise one or both more than 6 inches from side), (7) turn improperly (remove both feet from the line), and (8) take incorrect number of steps.

The officer will not tell you that if you exhibit two or more of these clues, he will mark you down as having failed the test!

Like the Walk-and-Turn, the officer will start with the Instructional Stage and tell you to stand with your feet together and your arms down at your side. Do not start until told to begin. He will move to the Demonstration and Balancing & Counting Stage by explaining that when he tells you to start raise one leg, either leg, approximately 6 inches off the ground, toes pointed out. Keep both legs straight, arms at side. While holding that position, count out loud to 30 beginning with “one thousand one, one thousand two, etc.,” until told to stop. Keep your arms at your sides and keep watching your raised foot.

The officer will not tell you that if you exhibit two or more of the following clues, you will fail the test: (1) sway while balancing, (2) use arms for balance (raising them 6 inches or more), (3) hop, or (4) put your foot down.

Picture this: You go out for the evening and have some wine with dinner. You feel very much in control. While driving home, you suddenly see the flashing blue lights of a police cruiser pulling up behind you. The next thing you know, a police officer is asking you to do some "tests" at the side of the road, followed by an arrest for DWI. Is this situation Hopeless? Not by a long shot. The vast majority of people charged with DWI are alleged to have been driving while "impaired" by alcohol or "under the influence" of liquor. What do those words mean? Even with today's so-called "field sobriety tests", breath tests, and blood tests, the ultimate decision about whether someone was impaired by alcohol while driving is up to a judge or jury. To put it simply, it is a judgment call made on a case by case basis. If you feel that you have been wrongly accused, you do not have to settle for a police officer's opinion. If you refused consent to blood alcohol testing, you may need to defend yourself before a criminal court and the DMV. Both types of review offer opportunities for improving the outcome and potential penalties you may be facing. We, of course, encourage you not to drink and drive. If, however you are arrested, you should hire a lawyer before risking a license loss and the other serious consequences that can result from a conviction. These cases can be successfully defended, but you will need an experienced attorney on your side. DWI charges are perhaps the most complicated of motor vehicle charges. You need an experienced lawyer who can investigate and evaluate your case and, if necessary, defend you at trial.

Legal Tip: Did you know that a charge of DWI, first offense, is now treated as a Class B misdemeanor? This means that a conviction will result in you having a criminal record. That criminal record could haunt you when trying to obtain a job or promotion. Call us for a free telephone consultation to discuss your rights. Resist the temptation to simply enter plea of guilty, even if you made a mistake the day or arrest.

Results for Criminal DWI Case Results:

DWI Case Summaries

CASE 1

State v. CW, (Rockingham County-December 2009): A 60-year-old diabetic charged with DWI 2^nd (outside 2-year look back, but within 10 years) (with a 3^rd conviction outside the 10-year look back). The Defendant allegedly refused breath testing. So, in addition to the mandatory 2-year Administrative Loss of License (LOL), CW faced a mandatory 3-year court-imposed LOL (5-year LOL total), a 3-day jail sentence, and an unknown amount of residential treatment (CW having already completed the 7-day multiple offender program (MOP). In addition, a conviction would have resulted in CW being certified as a Habitual Offender, resulting in an additional 1-4 year LOL. The State offered to recommend the mandatory minimums if CW pled guilty as charged. On advice of counsel, CW rejected the State’s offer. A trial ensued. Our aggressive preparation included, but was not limited to, visiting the scene of the alleged crime and retracing CW’s steps/driving the night of the arrest. We engaged in extensive research on diabetes, including the possible presence the night of the arrest of ketones/ketoacides (waste product diabetic body produces when fats are broken down for energy due to low levels of insulin) which if present can cause a peculiar odor easily confused with an odor of alcohol, as well as dizziness and confusion. Because we had visited the scene of the alleged crime, we were able to cross-examine the arresting officer extensively and effectively in order to demonstrate that CW may not have been operating erratically as the arresting officer had alleged. In addition, we subpoenaed CW’s primary care physician who was permitted to testify about CW’s diabetes and the aforementioned issues related to the case. Result: Not Guilty

CASE 2

State v. CP, (Merrimack County-November 2009): We represented this 20-year-old accused of Driving While Under the Influence of Alcohol, Driving Under the Influence of a Controlled Drug, and Driving Under the Influence of Alcohol and Controlled Drugs brought as alternate theories. CP had allegedly performed poorly on FSTs after being stopped for a headlight out. Because CP was under the age of 21, he faced a mandatory minimum one year court-imposed LOL, coupled with a 6-month Administrative LOL because he had allegedly refused to take a breath test. The State refused to drop the charge to a Reckless Operation and insisted on a guilty plea to the under 21-year-old mandatory minimums and agreed not to bring forward a 6-month suspended jail sentence that was hanging over CP’s head as a result of a previous, unrelated conviction. On advice of counsel, CP rejected the State’s offer. A trial ensued. Result: Not Guilty

CASE 3

State v. SS, (Rockingham County-September 2009): This 46-year-old was charged with Driving Under the Influence of Drugs or Liquor after being involved in a motor vehicle accident, performing poorly on Field Sobriety Tests, admitting to having consumed a “large” glass of red wine, and the officer’s observations that SS had spilled the wine on her shirt. We negotiated a plea bargain which resulted in the DWI being nol-prossed (dropped) in exchange for a plea to Negligent Operation with a $250 fine and no license loss. Result: Nolo Plea to Negligent Operation

CASE 4

State v. RA, (Carroll County-August 2007): The State Police charged RA with the felony offense of Driving After Being Certified as a Habitual Offender, DWI 2^nd, and Open Container after a State Trooper approached RA’s vehicle which was parked on an access road overlooking Chocorua Lake. This was RA’s 5^th DWI. Not surprisingly, the State was looking for 2-5 stand committed at the New Hampshire State prison if RA agreed to plead guilty. We filed a thoroughly researched Motion to Suppress, attacking the Trooper’s initial encounter with RA. The prosecutor refused to bend on her offer and asserted she was “not concerned” about the issues raised in the Motion. After a full-blown evidentiary hearing, the Court granted the Motion and the State was forced to drop all charges for lack of evidence. Result: All Charges Dropped.

Other Case Summaries

►Drugs

State v. MJ, (Hillsborough County-2003): In 2000, U.S. Customs Officials in Anchorage Alaska intercepted a UPS package addressed to MJ’s residence in New Hampshire. Although the shipping manifest indicated the package contained Retamine (tree bark), inspectors determined the package contained over 1 kg of Ketamine (“Special K”). Customs officials alerted Manchester-based DEA agents who subsequently notified the NH Drug Task Force. NHDTF made a controlled delivery of the package to MJ’s residence, conducted a search of the residence, including MJ’s computer. MJ was arrested and charged with Attempted Possession of a Controlled Drug (Ketamine) with Intent to Sell Subsequent and Conspiracy to Possess a Controlled Drug with the Intent to Sell Subsequent. He remained free on bail pending trial. This was the biggest Special K bust in State history. In addition, MJ had a prior drug conviction on his record. Each of these charges carried a maximum sentence of 7 ½ - 15 years in State Prison and a $200,000 fine. Not surprisingly, the Senior Assistant Attorney General assigned to the case initially believed that at least 12-months in jail followed by intensive probation would be appropriate if MJ agreed to plead guilty to both charges. Over the course of almost a year of pretrial litigation, we filed multiple motions doggedly attacking the warrants and related searches in the case. In one of our last motions, we cited to an obscure case out of the State of Florida to support our client’s legal position. To his credit, the Senior Assistant Attorney General agreed to recommend a no time deal after reviewing this final motion and the Florida case cited therein. During the plea and sentencing hearing that followed, the prosecutor referred to the issues raised by defense counsel as part of the rationale underlying the State’s sentencing recommendation which did not include any stand committed jail time. MJ, his long-time girlfriend, and six-month-old baby were happy and grateful. Result: No Jail Time

►Violent Crime

State v. AF, (Hillsborough County-2003): AF was charged with felony Criminal Restraint, Kidnapping, Robbery, and two counts of misdemeanor Simple Assault against his ex-girlfriend. The State’s evidence appeared overwhelming. Initially, AF was represented by a Public Defender with over 20 years experience who, not unreasonably, advised AF to accept a plea bargain. We inherited the case. On advice of counsel, as part of his trial strategy, AF took the rather unorthodox step of admitting to one of the misdemeanor Simple Assaults. After a three-day trial, the Jury found AF not guilty of all charges except the Simple Assault he admitted to prior to trial. Result: Not Guilty

►Criminal Solicitation

State v. RH, (Carroll County-2007): We represented RH who was accused of soliciting one inmate to assault another inmate while he was employed as a corrections officer. The prosecutor insisted on a felony plea even though the alleged victim was not seriously injured and RH had no criminal history. After a four-day trial, the jury found RH not guilty. RH subsequently sued the County and obtained a sizeable civil judgment for wrongful termination. Result: Not Guilty

►Sexual Assault/Rape

State v. RW, (Rockingham County-2010): We represented this 61-year-old grandfather who was charged with two counts of Aggravated Sexual Assault and two counts of Felonious Sexual Assault on his 7-year-old granddaughter. The two aggravated charges each carried a maximum sentence of 10-20 years in State Prison. The other two charges each carried a maximum sentence of 3 ½ - 7 years in State Prison. RW, who had a criminal record, but no prior sexual assault convictions, would have spent the better part of the rest of his life in State Prison if convicted. After a three-day trial, the jury found RW not guilty of all charges. Result: Not Guilty

DISCLAIMER: PAST RESULTS ARE NO GUARANTEES OF FUTURE RESULTS. EVERY CRIMINAL CASE IS BASED ON ITS OWN UNIQUE FACTS AND CIRCUMSTANCES. THERE ARE MANY FACTORS THAT AFFECT THE RESULT OF A CRIMINAL CHARGE INCLUDING, BUT NOT LIMITED TO: THE ACCURACY OF ANY LAB RESULTS OR TESTS, WHETHER THE MACHINE CONDUCTING THE TEST WAS PROPERLY CALIBRATED AND CERTIFIED, WHETHER THE POLICE VIOLATED ANY STATE OR FEDERAL CONSTITUTIONAL PROTECTIONS, THE AVAILABILITY OF WITNESSES AT TRIAL, THE AVAILABILITY OF ARRESTING OFFICERS AT TRIAL, YOUR PERSONAL BACKGROUND AND PAST CRIMINAL RECORD, THE RESULTS OF DEFENSE TESTS AND LAB ANALYSIS, THE AVAILABILITY OF DEFENSE WITNESSES AND NUMEROUS OTHER FACTORS. CALL FOR A FREE TELEPHONE CONSULTATION TO DISCUSS YOUR INDIVIDUAL CASE.

Maybe - and maybe not. If the ticket says you "must appear" in court, be aware that the judge can take your license for up to 30 days for any traffic violation. Depending on your overall motor vehicle driving record, even a minor traffic violation can cause the Division of Motor Vehicles in Concord to take your license if you have too many "demerit points". Even worse, the DMV can declare you to be a "habitual offender" and take your license for up to 4 years! For drivers under twenty, any traffic offense may trigger the DMV to suspend your license. Most folks in New Hampshire depend dearly on their licenses, especially to get to work and earn a living. There is no such thing as a special excuse to drive to work if you lose your license. If it's gone, its gone! We will request hearings before the DMV on clients' behalf, appear in court with them; when doing so may improve the outcome of the review.