Thursday, November 23, 2017
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N.H. DWI GUY Review 5.0
C.W. January 15th 2012
"Saved my license"
I was charge with dwi alcohol and drugs. I needed to keep my license for my job. At trial I was found not guilty of both charges. Highly recommend if you need to fight your case


DWI Defenses by the N.H. DWI GUY

The following information is taken from my book on New Hampshire DWI - Defense Lawyer Edition. For more information see:

There are numerous defenses to DWI. While the State’s case is often straight forward and predictable, the possible defenses to DWI are limited only by your imagination. Most of the defenses are related to impairment. If you can show your client’s conduct was caused by something other than alcohol or a controlled drug, you can show reasonable doubt.


12.1 Client was not Impaired

The State tries to prove an “ability to drive” was impaired due to alcohol (Phase I of DWI Detection). Often, there is not bad driving. If there is only a slight motor vehicle violation, or even no motor vehicle violation, emphasize this fact. If the driver were impaired by alcohol, his driving would have reflected it.

In the absence of bad driving, the State will often try to show alcohol affected balance issues or other things typically associated with someone who is drunk (Phase II of DWI Detection). For example, slurred speech, blood-shot eyes, etc. Usually the contact with the Client by the officer that night is the first time the two will have met. How can an officer know what the driver’s typical behavior is? Many people have a lisp/slurred speech. Many things cause bloodshot eyes (tired, smoking, etc.) Show there are reasonable explanations for the things the Officer observed, and you are on your way to a not guilty verdict.

Finally, the State tends to try to make their strongest evidence of impairment the performance on Field Sobriety Tests (Phase III of DWI Detection). However, these tests, are not normal tests. Many people have trouble doing them for any number of reasons. Medical reasons, environment reasons, or just generally bad balance/listening skills).

Your job is to show the tests are simply not reliable (perhaps because they were administered improperly), and/or the performance on them was reasonable under the circumstances unique to the Defendant.

12.2 Impairment Due to Something Other than Alcohol or a Controlled Drug

The State must prove your client’s ability to operate a motor vehicle was impaired to any degree due to alcohol and/or controlled drugs. While the State likes to emphasize the “to any degree” part, your job is to show impairment, if at all, was not due to alcohol and/or a controlled drug.

Usually, the State focuses on impairment itself, and not so much due to alcohol (unless you have a valid chemical test). It can often catch the prosecutor completely off guard when the defense is that there was impaired driving, but it was from something other than alcohol/controlled drugs.

Typically, the best defenses for this are falling asleep at the wheel/ a really tired driver, or medical conditions, including taking prescription medications. The State will often forget the statute deals with “controlled drugs”, or otherwise be unable to prove a certain prescription drug is in fact a controlled drug. Further, your client is in the best situation to know his complete medical conditions. Hopefully, he will have told the officer of his conditions, but if not, evidence can still be presented at trial to show reasonable doubt. When there is a medical condition, in my opinion, this is an ideal situation to have the Defendant testify, as they know their condition and its symptoms better than anyone else. Be wary, however, of any condition you are trying to explain away, such as slurred speech, which might not be present when the Defendant testifies. If this is the case, see if the person’s condition has improved, perhaps with surgery or medicine, or if something that night could have caused the Defendant’s condition to be more aggravated than it would be at the time of testifying.

12.3 Impairment was not at the time of Driving

The State must prove impairment/BAC at the time of driving. However, see State v. Taylor[1]. As discussed earlier, alcohol must absorb/metabolize into the system, and then it is eventually eliminated. Whenever there is a BAC after the fact, typically an hour or so later, the important question becomes: What was the BAC at the time of driving? I specifically ask the breath test operator, so the BAC was .10 at 1:00 when you gave the test, but we don’t know what the BAC was at 12, when Client was driving.

There are three possibilities, it was going up, it was going down, or it was the same. Without retrograde extrapolation, it is impossible for the officer to know what the BAC was at the time of driving. If your case either has the driver admitting to drinking right before driving, or even an open container in the car, there is a good argument the BAC was rising, and therefore lower at the time of driving.

Other circumstances can lead you to argue a BAC of 0.00 at the time of driving. If the driver was not found in his vehicle, you can argue any alcohol consumption occurred after he was done driving. This argument works particularly well if the driver already went in their house. This argument works so well, I have even won an ALS on the merits with this argument, showing it was unreasonable for the officer to have a reasonable believe of impairment at the time of driving.

12.4 Defendant was not Operating/Driving

Two situations are readily available for this defense. One is if the Defendant was not found in the vehicle. The second is where the vehicle was parked/not running. See Chapter 3.5.4

12.4.1. Some Other Guy did it

If no one witnessed the driving, and the defendant denied it, a good argument can be made that someone else was the driver. The more time that goes by, and the further away from the vehicle the Defendant is found, the better this argument is.

12.4.2. No Operation

The State need not prove actual driving. See Chapter 3.5.3

12.4.3 Temporary shelter

Sometimes, the driver will be parked in a running vehicle using it as a temporary shelter.

12.5 Insufficient Evidence under Lorton

The best case to argue insufficient evidence of impairment is State v. Lorton. In that case, the New Hampshire Supreme Court reversed the trial court decision of a guilty verdict on the basis of insufficient evidence.

Viewing all the evidence in the light most favorable to the State, we cannot say beyond a reasonable doubt that the circumstantial evidence in this case excluded all rational conclusions except that the defendant was guilty.[2]

Lorton had many factors that are common in most DWI cases. Odor of alcohol, flushed face, glassy eyes, admission of drinking, failing field sobriety tests, and a refusal. However, many of the observations were marginal or borderline. The Court found “Because the field sobriety tests were conducted under less than ideal conditions and the results of the defendant's performance on the walk-and turn test were essentially unremarkable, it is just as rational to conclude that his performance was attributable to innocent factors as it is to conclude that his performance was due to impairment.[3]

Additionally, the Court gave some useful language in regard to a refusal. “Perhaps the most damaging evidence against the defendant was his refusal to take the breath test. The defendant explained that he refused because he had learned on television that breath tests produce inaccurate results. Viewed in the light most favorable to the State, however, the refusal supports an inference that the defendant sought to suppress evidence of his guilt.[4]

“Yet the probative value of this inference is not the same in all cases. Cf. Cormier, 127 N.H. at 260 (Batchelder, J., concurring specially) (trial court has discretion to exclude evidence of refusal). The inference is much stronger, for example, when coupled with an admission. See, e.g., State v. Parmenter, 149 N.H. 40, 43 (2002) (defendant refused test, stating, "I know I'm over and you know I'm over"); South Dakota v. Neville, 459 U.S. 553, 555 (1983) (defendant refused test, stating, "I'm too drunk, I won't pass the test"). The absence of any significant corroborating evidence in this case — i.e., erratic driving or outright failure of a sobriety test — further weakens the inference. Accordingly, under the facts of this case, there was insufficient evidence to establish beyond a reasonable doubt that the defendant operated his vehicle while impaired.[5]

One must contrast Lorton with State v. Kelley, 986 A. 2d 620 (2009). “Contrary to the defendant's argument, this case is factually distinguishable from Lorton. In Lorton, the defendant failed to use a turn signal while making a right turn, but "stopped in a safe and prudent manner." Lorton, 149 N.H. at 734, 829 A.2d 647. Here, Lee stopped the defendant because she crossed over the double yellow line and nearly crashed into his cruiser. She came to a sudden stop upon being pulled over. While the defendant in Lorton was able to immediately produce his license and registration, id., the defendant here had difficulty producing her registration. While searching for it, she "fiddl[ed] through the different papers, very slow, almost like she ... didn't know what she was doing." In Lorton, the defendant had no difficulty getting out of his car and "walked with a normal gait without stumbling or faltering in any way." Id. at 734, 829 A.2d 647. The Lorton defendant's walk-and-turn test results were "essentially unremarkable," id. at 735, 829 A.2d 647, whereas here, the defendant failed.[6]

[1] State v. Taylor, 132 NH 314 (1989)

[2] State v. Lorton, 149 NH 732, 733 (2003)

[3] Id at 735

[4] Id at 735

[5] Id

[6] State v. Kelley, 986 A. 2d 620, 626 (2009)