New Hampshire DWI Blog

Twenty-two years ago, when I started practicing law in New Hampshire, there was an advertisement aimed at preventing DWIs that featured a picture of a frosty mug of beer and the tag line:  “The $5,000 Beer.”  The point of the advertisement was that the fine, court costs, attorneys’ fees and insurance premiums would reach that amount for the average driver convicted of a simple DWI.

Times have changed.  For a simple, first offense DWI–with no accident, property damage, personal injuries, or aggravating facts, the true cost to the driver has been estimated by various groups and organizations to be somewhere between $10,000 and $20,000:

•  CNBC:  $20,000
• Alcohol Problems and Solutions:  $20,000
• MADD of Orange County, CA:  About $11,000
• Illinois Secretary of State:  $14,660 (assumes jail and lost income, but low legal fees due an “uncontested plea”)
• Erie County, NY:  $9,500
• Texas Department Of Transportation:  $9,000 - $24,000

    All of these estimates include some assumptions that I don’t agree with and some costs that don’t exist in New Hampshire.  More important, the true cost will vary significantly from individual to individual. 

   More after the break.  

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     The Intoxilzyer 5000 EN, which is the only post-arrest breath testing device approved for use in New Hampshire, has many parts which have been studied by engineers, scientists, forensic breath testing experts and courts in many states.  The result of all this study has been a rich literature detailing the situations in which the results spit out by this machine may not accurately reflect deep lung breach alcohol concentration (BrAC).

   But there is one essential part of the Intoxilyzer 5000 which has been off limits to study–the computer source code which runs the whole machine.  Although the machine uses infrared spectrometry to analyze a fixed sample of breath, it is the computer software that is responsible for:

• Telling the machine what numbers to report;
• Telling the machine whether it can report a result at all;
• Correcting for possible interferents (e.g. chemicals other than ethyl alcohol);
• Correctly reading the machine’s internal and external standards.

    The machine’s so-called “slope detector”–which is supposed to tell the machine to abort when BrAC continues to rise steeply when the subject is blowing, due to the likely presence of mouth or stomach alcohol–depends entirely on the source code.  I’ve heard a number of highly qualified experts say that the slope detector does not always work correctly.  I’ve also heard a world class expert say that the machine often reports inaccurately high BrAC results when the subject has a small amount of alcohol (the proverbial two beers) but has been exposed to potential interferents (certain volatile chemicals that mimic alcohol’s infrared spectrograph).  Although the software is supposed to correct for such interferents, it may not always work correctly when there is some alcohol in the mix. 

     So how do we know that the Intoxilyzer 5000’s source code is doing its job correctly?  As a result of some dogged litigation by DUI defense lawyers in Florida, Kentucky, Minnesota and New Jersey, the Intoxilyzer’s source code will finally be analyzed by qualified computer scientists.  

     More after the break.  [Read more →]

  In New Hampshire, and elsewhere, DWI cases are made overly complicated, and unnecessarily expensive to all concerned, because most drivers are prosecuted twice: 

     -There is the prosecution in court for Driving While Impaired; and

      -There is usually also an administrative  loss of license (ALS) which is imposed by the Division of Motor Vehicles for either (a) refusing a post arrest alcohol concentration test (breath, blood or urine) or (b) taking a test which discloses an alcohol concentration of more than 0.8, for adults, and more than 0.2 for other adults, e.g. those who are under 21, and juveniles.

     The ALS loss of license is 6 months–but it the driver has either a prior DWI or a prior “refusal,” the ALS suspension is for two years.  So the mandatory ALS suspension is for a longer period than the minimum suspension for a DWI, First Offense.  In “refusal” cases, the suspension is always consecutive (e.g. in addition to) any court imposed revocation.  In “per se” cases, the suspension always concurrent with the court imposed revocation.

    Now, I understand that its not technically two prosecutions.  Under the law, the ALS is an administrative proceeding designed to further the State’s regulatory purpose of ensuring driver safety.  In other words, it’s not a criminal proceeding and the ALS loss of license is not a form of criminal punishment.  That’s why it does not violate the double jeopardy provisions of the State and Federal Constitutions to impose both a DWI sentence and an ALS license suspension.  But if its your license, you sure would feel as if you were prosecuted twice for the same offense.

     It is also true that not everybody who is charged with DWI is subject to double prosecution.  Some small fraction of persons arrested for DWI are not asked to take an alcohol concentration test–typically because the Intoxilyzer 5000 or its operator are unavailable.  Some drivers may be prosecuted despite a low Intoxilyzer test.  But most of the time, if you’re charged with DWI you  are also likely to face an ALS suspension.

     This puts many, many drivers between the proverbial rock and and hard place.  Most (but not all) New Hampshire police departments and prosecutors will agree to withdraw the request for the ALS suspension in return for a plea to a DWI charge.  In the case of a “refusal” this could save the driver from a six month consecutive license suspension–so its not an inconsequential offer.  But for a driver who is innocent of DWI, rejecting this offer is the price of going to trial. 

    Yes, the driver gets an ALS hearing (if he requests one within thirty days of arrest or notice of the test results) at which the arresting officer must testify and be cross-examined.  And yes, the driver can get a transcript of this hearing which can prove invaluable in court in the DWI case.  But what if the driver loses the ALS hearing before going to trial on the DWI?  It is more difficult to win the ALS hearing than it is to win a DWI trial because: (a) you face a Department of Safety Hearings Officer rather than a judge; (b) the State does not need to prove its case beyond a reasonable doubt; (c) you have no right to suppress illegally obtained evidence; and (d) the State does not need to prove that you were actually impaired by alcohol.   Also, if you have an expert based defense to the ALS (such as you might have if you were challenging an Intoxilyzer result), you would have to pay the expert to come to the ALS hearing in addition to the trial.

     So, for many drivers this means that the price of a DWI trial can be a six month (or two year) ALS suspension.  Pony up the ante.

     Later today, when the U.S. Supreme Court’s justices meet in conference, they will discuss whether to hear an appeal from a New Hampshire state court DWI conviction.  The question presented is whether blood alcohol concentration test results may be admitted in a DWI case without presenting testimony from the laboratory personnel who (a) drew the driver’s blood and (b) analyzed the blood.  

     The Derry District Court and the New Hampshire Supreme Court (over a vigorous dissent) held that the test results could be admitted.  The driver–a 17 year old who was convicted of DWI, First Offense–appealed the issue to the U.S. Supreme Court.  The National College For DUI Defense has filed an amicus brief urging the Supreme Court to accept the case.  [Read more →]

  Did you know that a DWI conviction in the United States can interfere with international travel?  Canada treats DWI convictions as grounds for exclusion.  This is the official Canadian position, from the website of the Canadian Embassy:

Members of Inadmissible Classes include those who have been convicted of MINOR OFFENCES (including shoplifting, theft, assault, dangerous driving, unauthorized possession of a firearm, possession of illegal substances, etc.), or of INDICTABLE CRIMINAL OFFENCES (including assault with a deadly weapon, manslaughter, etc.). As well, those who have been convicted of DRIVING WHILE INTOXICATED (DWI) are considered Members of an Inadmissible Class. Driving while under the influence of alcohol is regarded as an extremely serious offence in Canada.

* * *

Those who have been convicted of an offence OUTSIDE CANADA, and have had 5 years elapse since the termination of the custodial portion (if any) of the sentence imposed (not the sentence served), may apply for a Minister’s APPROVAL OF REHABILITATION. The Minister’s Approval will permanently remove the inadmissibility caused by conviction.If less than 5 years have elapsed, or if persons are only seeking entry to Canada for a single or limited period, then they may apply for a TEMPORARY RESIDENT PERMIT.    

Apparently, this has been the law in Canada for quite some time, but it is being more vigorously enforced these days because the Canadian border authorities now have immediate access to most U.S. criminal record abstracts.  Here’s what you need to do if you want to visit Canada and you have been convicted of a DWI: [Read more →]

     People come in all shapes, sizes, ages, abilities and conditions. We’ll, not quite. People come in a range of shapes, sizes, ages and abilities. Of course, there is a national average, a national median and a national mean for all of these ranges. Sometimes it makes sense to speak about the national average. But when we make individual decisions about our own lives–such as, say, when we shop for clothes–we look to our own shape and size. We don’t buy clothes that would fit the average American; we buy clothes that fit our own bodies and our own tastes.
     Unfortunately, in DWI cases, the police have been taught by the National Highway Transportation Safety Administration, to treat all of us as if we were average:
     NHTSA recommends scoring a battery of field sobriety tests according to particular rules that are applied the same regardless of whether the subject is a healthy 19 year old in running shoes on a summer afternoon or an overweight 65 year old with a head cold and cowboy boots on an icy night. A misstep by the 65 year old will be treated the same as one by the 19 year old–it is a visual “clue” of impairment and only so many are necessary to “fail” the test. See, NHTSA DWI Standardized Field Sobriety Testing Student Manual (2007).
     In an recent case, I represented a young woman who wore three and half inch heels when she performed the field sobriety tests on a cold night. Following NHTSA’s procedure, the officer gave her the option of performing the tests in her stocking feet on the cold and rough roadway. She declined and did the tests wearing her high heels. Even though neither NHTSA nor anybody else has ever attempted to standardize or validate these tests for women in high heels, the officer “scored” the test just as if she had a pair of tennis sneakers on. At trial, of course, he admitted that he probably couldn’t do the tests well in my client’s shoes.
     Of course, you can always argue that the officer shouldn’t be allowed to testify to “clues” and individual “test failures” in the first place. But in many cases, regardless of whether this type of testimony is admissible, the officer will determine whether a driver is impaired based precisely on NHTSA’s reasoning that we are all average.
     The same is unfortunately true for forensic breath testing. The goal of forensic breath testing is to determine, as accurately as possible, the percent of alcohol in the driver’s blood. Alcohol in the blood is what impairs our driving ability. Yet it is more convenient (for both the police and the driver) to take a breath alcohol test than a blood alcohol test–no needles are involved, no special medical training is necessary and the results are available immediately. But because the Intoxilyzer 5000 (the machine used in New Hampshire) and all similar devices express alcohol concentration as a single number rather than a rather large range of possible numbers–it assumes that we are all average. Here’s how:

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The funds come from a federal grant.  Is there any evidence that random, suspicionless police checkpoints are better at deterring and detecting DWI than visible police patrols? 

PORTSMOUTH – Police are getting a new tool in their fight to keep drunken drivers off the roads.  The mobile-home-sized, rolling command post — complete with blood-testing machines, holding cells and room for bail bondsmen and fingerprinting equipment — should start operating late this summer, according to Peter Thomson, head of the state Highway Safety Agency.  Link:  here