Category: Drunk Driving

Mike Bowser of Bowser Law speaks with John Maher about the differences between Massachusetts and New Hampshire in their second offense DUI penalties. There are key differences in their minimum sentencing guidelines and how they count offenses. Understanding them is crucial if you’re facing a DUI charge.

John: Hi, I’m John Maher. I’m here today with Mike Bowser, a board certified DUI defense lawyer practicing in Massachusetts and New Hampshire. Today we’re talking about second offense DUI penalties in Massachusetts and New Hampshire. Welcome, Mike.

Mike: Nice to see you.

John: Mike, what are the penalties for a second offense OUI in Massachusetts?

Mike: A second offense OUI in Massachusetts is based on the fact that you have at least one prior offense–either a guilty fining or an assignment to an alcohol education program–anytime during your lifetime because in Massachusetts, Melanie’s law which is the OUI statute has a provision that includes a lifetime look back. So you can be charged as a second offender if you have a prior CWOF, or a prior assignment to an alcohol program, or a prior guilty 10 years ago, 15 years ago, 20 years ago.

The second offense OUI is a misdemeanor. It has a maximum penalty in Massachusetts of two and a half years in the house of correction. However, most second offenders are sentenced, if convicted. They are typically sentenced by the court to one of two alternative mandatory minimum sentences. One of the mandatory minimum sentences is two years of probation: a two-year loss of license with completion of a 14-day inpatient hospitalization. That’s [at] an alcohol treatment facility. You’re there for two weeks overnight. It’s a locked facility in a state hospital, but it’s not a prison or a jail.

When you complete that 14-day program, you’re in counseling for a year. You’re on probation for two. The other alternative sentence, if you don’t receive the 14-day hospitalization, you’re looking at a 60-day house of correction sentence. You do have to serve the 60 days behind the wall at the house of correction, whether it’d be Middlesex, or Essex county, or Suffolk county, wherever it may be. Most of the judges on a second offense in Massachusetts, they’re sentencing to one of those two alternative minimum sentences. What’s interesting is there’s also what’s called a Cahill Disposition in Massachusetts.

There is one exception to that second offense mandatory minimum sentencing scheme. If you only have one prior, [and] it’s more than 10 years ago, you can literally be sentenced as a first offender one more time. Meaning you can get a first offense sentence, as opposed to a second offense. Regardless of whether it’s a Cahill Disposition or a true second offense, anyone with more than one OUI finding on their record, when they do get restored, their license has to be restored with an ignition interlock device for a period of at least two years. That’s a mandatory provision for a second offense in Massachusetts.

John: Okay. How does the– which one of those penalties that you get? How does that get determined? Is that just the judge’s choice?

Mike: It may be determined through a plea negotiation with the prosecutor that the judge does, or does not agree to. Sometimes, you’re asking the judge to consider a Cahill Disposition, for instance, give him another first offense, because his last prior was 12 years ago, more than 10 years ago. If you go to trial, you’re not necessarily in a position at that point to negotiate for a Cahill Disposition or a 14-day inpatient. The judge might be inclined to give the 60-day sentence to the house of the correction after trial whereas before trial, you may’ve been able to get the 14-day inpatient program. All these things are in the mix as you are approaching a trial date, and trying to figure out what is the best disposition for your particular client.

It’s all negotiable, and you negotiate these things as you go forward through the case.

John: Okay. How does that differ from New Hampshire? What are the penalties for a second offense DWI in New Hampshire?

Mike: New Hampshire has a second offense which is a class A misdemeanor. A New Hampshire class A misdemeanor carries a maximum penalty of one year in jail. A typical second offense disposition in New Hampshire is the mandatory minimum sentence, which includes– what they do is they say 17 days in the house of correction, all but five days suspended. You serve a five-day jail sentence. Once you’re released from that five-day jail sentence, you need to immediately enter into the Impaired Driver Care Management plan, go through an evaluation, and start on a treatment plan.

It also requires a mandatory minimum three-year loss of license from the court. New Hampshire also requires if there is a second offense conviction that you have the ignition interlock device for at least 12 months. What’s interesting about New Hampshire is their look back period for a prior is 10 years. If you have a DWI, OUI, outside of 10 years, they’re not going to count it. If you have one within 10 years, then you’ll be treated as a second offender. What’s really important in my practice is I represent so many Massachusetts residents that are facing New Hampshire DWI charges.

I have some people that may have had an OUI in Massachusetts 20, 25, 30, 15 years ago. New Hampshire may be treating them as a second offender because there’s one only within 10, but they may have a couple that are really old. When they come back to Massachusetts, Massachusetts through the registry is going to treat them as a second, third, potentially fourth offender, because they never drop off their record. Administratively, under Melanie’s law, they’ll say, “Well, we understand New Hampshire treated you as a second offender, but it’s truly your fourth. The difference between a three-year loss of license and a 10-year loss of license, or a three-year loss of license and a lifetime loss of license.”

You need to understand the impact of the Mass record on the Mass resident who’s facing a DWI in New Hampshire. Whether it’d be a first offense DWI, or a second offense DWI.

John: All of that adds up, to me, to the fact that you really need to have a lawyer on your side who knows what they’re talking about in terms of DUI offenses, and like you said, both Massachusetts and New Hampshire, potentially if you’re crossing the border. You live in one state, but you get arrested in the other. How important is it to get legal representation for a second offense DUI?

Mike: Well, it’s critically important in both states, because both states the second or subsequent offense is a mandatory minimum sentence of incarceration or hospitalization. The loss of license can be dramatic. The interlock device is a requirement in both states. In my practice for 20 years, I’ve always been in both states. There’s very little of a border between Mass and New Hampshire. Every day, we got back and forth between these two states, and we never think about it. The impact of that DWI charge in New Hampshire can be significantly different than the true impact in Massachusetts when you come home. That’s because of that lifetime look back provision.

If you walk into a courtroom in New Hampshire, and you’re treating your DWI as a first offense or a second offense, but Massachusetts is going to treat is as your third or your fourth, you need to know that ahead of time. Because the differences in the penalties through the registry of motor vehicles in Massachusetts can be drastically more severe in Massachusetts based on what happens in New Hampshire. You need to know both.

John: All right. That’s really great information Mike. Thanks again for speaking with me today.

Mike: Sure, you’re welcome.

John: For more information about Mike Bowser, visit bowserlaw.com, or call 888-526-9737.

Mike Bowser of Bowser Law discusses the first offense DUI penalties in Massachusetts and New Hampshire. He describes the major differences between the states’ enforcement and how arraignment works in DUI cases in both MA & NH.

John Maher: Hi, I’m John Maher. I’m here today with Mike Bowser, a board certified DUI defense lawyer, practicing in Massachusetts and New Hampshire. Today we are talking about first offense DUI penalties in Massachusetts and New Hampshire. Welcome, Mike.

Mike Bowser: Nice to see you.

John: Mike, what are the penalties for a first offense OUI in Massachusetts?

Mike: Typically in Massachusetts, it’s—no, I shouldn’t say typically, the routine penalty that is imposed on any first offender in Massachusetts for an OUI–which is Operating Under the Influence–is an assignment to what’s called the 24D program under Massachusetts’ General Laws chapter 90 section 24D: a first offender is allowed to receive from the court a disposition that includes a loss of license of either 45, 60, or 90 days that includes one year of supervised probation.

They need to pay statutory fees and fines. The fines and fees are about $600. There’s a $65 a month probation/supervision fee. They have to pay for the program itself. All of that adds up to about $2000. The most common disposition on an OUI if it is plead out–meaning the person has admitted to the facts and the evidence–the court will generally continue the matter without a finding of guilt entering. And the importance of that is the continuance without a finding which is typically referred to as a CWOF, C-W-O-F, is not a criminal conviction under Massachusetts law.

However, it does count as your first offense for the rest of your life because the drunk driving law in Massachusetts referred to as Melanie’s Law has a lifetime look back component; meaning if you receive a guilty finding any time in your life it’s counted forever or if you’ve ever been assigned to an alcohol education program by a court, that counts as your first offense. So although the CWOF isn’t a conviction because there’s no guilty finding entered, you do receive the assignment to the alcohol program, so it does count for the rest of your life as a first offense. That’s the typical sentence that’s imposed.

If you go to trial, and there’s a verdict returned of guilty, it cannot be continued without a finding as that finding has been made, but the sentence that is imposed is identical: 45-day loss of license, one-year probation. You pay the same fees and fines, and you have the ability to get a hardship license as well.

John: Did you say that there were different possible amounts of time that you can lose your license for? How does that got determined?

Mike: The 45, 60, or 90. You almost always see the minimum penalty of a 45 day loss license. Now that’s the court imposed loss of license on the OUI charge. You could also have a 180 day loss of license if you had refused the breath test at the time of the arrest–that’s an administrative suspension through the Registry of Motor Vehicles–or you could have a 30 day loss of license from the registry of motor vehicles if you took a test at the time of the arrest and you were over the legal limit of a .08. But the 45, 60, 90, those are periods of time that can be imposed by the court.

Sometimes if the facts of the case are worse than better–if there’s an accident, if the behavior of the driver was egregious or outrageous–the court may seek to impose a longer period of suspension. So they might give you 60 or 90 as opposed to 45. And the CWOF is not automatic, it happens routinely but the court does not have to grant you the Continuance without a Finding. If the facts of the case are egregious, really bad driving, there’s an accident, horrible behavior, or if you have a prior record or a very bad driving history the court may not be inclined to give you the Continuance without a Finding.

John: Okay. How does that differ from Massachusetts? What are the penalties for a first offense DWI in New Hampshire?

Mike: In New Hampshire, and they refer to the offense as Driving While Intoxicated because that’s what the statute says as opposed to Massachusetts [where] the statute says Operating Under the Influence. In New Hampshire, DWI is a Class B misdemeanor. It’s a misdemeanor in Massachusetts and it carries up to two and a half years in jail as a maximum penalty in Mass. You’re entitled to a jury trial in Massachusetts. In New Hampshire, a DWI is a Class B misdemeanor. A B misdemeanor is criminal offense but carries no jail, so there’s no potential for incarceration. Therefore you’re not entitled to an attorney, they will not appoint one for you, you cannot have a jury trial and every first offense DWI charge in New Hampshire goes before a single judge in what’s called the bench trial for purposes of the trial.

The penalty that is imposed in New Hampshire can be up to a two-year loss of license but what you typically see as a mandatory minimum penalty is a nine-month loss of license or privilege. From the court, they order that you do an alcohol education as well program. They call it the Impaired Driver Care Management plan, and if you do everything that you supposed to do in terms of the program, the court will take the nine-month loss of privilege or license and reduce it to a period of three months. And what’s new in New Hampshire this past year is they’ve also for the first time created the ability to get a limited license on a first offense.

That limited license though, if you do obtain it, is for purposes of work, medical treatment, but it does require an ignition interlock device. Massachusetts, you can get a hardship license on a first offense OUI without an interlock but New Hampshire now requires that interlock on a first offense with the limited license.

John: That limited license again it just allows you to drive your car with the interlock device for certain activities that you’re doing: going to work, going to school, things like that?

Mike: Exactly. The New Hampshire is limited to education, medical, employment, or counseling and treatment.

John: Okay. Did you say that the– as a first offense you’re not entitled to an attorney at that trial or not? It’s not even a trial, you’re going before the judge?

Mike: In New Hampshire, if you’re before the district court in New Hampshire, the court will not appoint a lawyer for you. Even if your indigent and you can’t afford a lawyer, they’re not going to appoint one for you because the condition precedent to getting an attorney appointed in New Hampshire is whether you face incarceration. If they can’t put you in jail, you’re not entitled to an attorney, so if you’re going to defend a DWI in New Hampshire you absolutely have to go out and find your own attorney–

John: So you can hire an attorney, you just aren’t going to be automatically appointed one?

Mike: Exactly.

John: Right. Okay, so when should a person who has been arrested for the first time for a DUI call an attorney?

Mike: Well, what’s interesting in Massachusetts, if you’re arrested for an OUI offense, you’re brought to a barracks or police station. A bail commissioner will come in, meet with you, release you typically on personal recognizance–meaning you pay a $40 fee to the bail commissioner–and they instruct you to go to court the next day. You’re released on your promise to appear, and most people have to be at their arraignment the next day if it’s a business day in Massachusetts.

New Hampshire, they typically release you in a similar fashion through a bail commissioner, and they usually give you a couple of weeks before you have to appear for your arraignment. And what people tend to do which is disturbing to me is they immediately look for an attorney and they feel that they have to have somebody at the arraignment.

Literally, the arraignment is a very procedural administrative type of thing. You go in, you check into the probation department of Massachusetts and you go before the arraignment session, and the court will literally say to you, “Commonwealth versus Maher. Mr. Maher we’re entering a not guilty plea on your behalf. Please come back here with the attorney of your choosing if you’re going to hire one,” or they will appoint you a lawyer, but almost nothing happens at the arraignment. You don’t need to rush to find a lawyer necessarily for the arraignment.

In fact, I wish people would take more time and be more selective in who they’re hiring because the arraignment is not a critically important date for purposes of the OUI in Massachusetts. In New Hampshire, you have a couple weeks typically and people are almost always calling within a day or two of their arrest and more often than not, I’m able to get in. I’ll have them come in and meet with me before that scheduled arraignment date. It’s very difficult in Massachusetts to find a lawyer before your arraignment the next morning but at the same time, it’s not critically important on a typical first offense that you actually have an attorney for the arraignment.

John: You tend not to, even in New Hampshire, do you tend not to go to those arraignments?

Mike: In New Hampshire, I’m almost always retained prior to the arraignment. We end up waiving it. Literally, I file an appearance on behalf of the driver and I tell the court to enter a not guilty plea on their behalf which saves them a trip to court just to do that to enter a not guilty plea and then I don’t have to appear either.

Massachusetts, people are…as I said it’s usually the next business day that you’re facing an arraignment in Massachusetts, so it’s difficult to get a lawyer in place. It’s not critically important that you have a lawyer necessarily for your first offense OUI arraignment.

John: All right, and you said in Massachusetts because it’s typically the next morning, people have the tendency to maybe jump at the first lawyer that they can get and that lawyer may not have the right type of experience to handle that case?

Mike: Or they’re frantically searching for a lawyer for purposes of the arraignment and it’s two o’clock in the morning, they’ve just been released from custody, they have to be in court at nine o’clock that same morning, so it’s…it is very difficult that– find somebody and again, at an arraignment in Massachusetts if it’s a first offense without any real aggravating factors, they’re going to be processed through the probation department, put before the court and the court will automatically enter a not guilty plea on their behalf. They won’t be asked to say anything or do anything other than return for the next date which is the pre-trial in the Massachusetts district court.

John: Okay, all right. That’s great information, Mike. Thanks again for speaking with me today.

Mike: Very well.

John: For more information about Mike Bowser visit bowserlaw.com or call 888-526-9737.

Mike Bowser of Bowser Law discusses with John Maher your right to decline a field sobriety test. He explains that police officers will not mention this to you beforehand, and you may still face consequences for your actions but that it can help you in the long term.

John Maher: Hi, I’m John Maher and I’m here today with Mike Bowser, a board certified DUI defense lawyer practicing in Massachusetts and New Hampshire. Today we’re talking about the right to decline field sobriety tests. Welcome Mike.

Mike Bowser: Good morning.

John: Mike, in what cases does an individual have the right to decline a field sobriety test and are there penalties for doing so?

Mike: In my practice, in DUI defense in Massachusetts and New Hampshire, I can state unequivocally that my clients and drivers have the ability to refuse field sobriety testing in every case. What is interesting is that every OUI, DWI, arrest typically begins with a motor vehicle stop. There’s a brief interaction at the window where the officer is asking for license and registration: “Where you’re coming from? Where you going? Do you know that you were speeding? Have you been drinking?” Then inevitability the question is asked or the command is given, “please step from the vehicle.” The reason they’re asking you to step from the vehicle is to conduct a field sobriety test. What’s interesting in both states, Mass and New Hampshire, the officer does not have to inform you that you have a right to decline to participate in field sobriety testing. They don’t have to tell you that. But-

John: It’s not like a Miranda right where that you have the right to refuse –

Mike: Correct. It’s just “can you step from the vehicle? I want you to do a few tests for me.” Most people, raised to respect the police and to be cooperative and polite, they get out of the car and then they begin taking the battery of field sobriety testing. Things usually end badly because they’re very difficult to pass under the very best of circumstances. You do have a right to decline. You can say to an officer who’s asked you to step from the vehicle “why?” If he says, “Well I want you to take field sobriety testing,” you can respond, “I’m not taking those tests.” At that point, the officer needs to make a decision based on everything that he has at hand–odor of alcohol, whether he thinks your eyes are glassy, your speech is slurred, whether you’ve admitted to drinking. Quite frankly, you also have a right to not answer questions. Again, they [the police] don’t have to tell you that. If you decline to take field sobriety testing, the officer’s response very well may be at that time “step from the vehicle” “Why?” “Because I’m going to place you under arrest.”

Now at that point, in Mass and in New Hampshire, you do not have a right to decline or refuse to get out of the vehicle. Because at that point, if he’s instructed you that he is placing you under arrest, you would in fact be resisting arrest.

John: Okay.

Mike: If he tells you “you need to get out of the car because I am going to place you in custody, you’re under arrest,” you need to get out. You should always remain otherwise cooperative, polite, and quiet and not be making statements or talking.

John: What would be the best way that a person would go about declining a field sobriety test? Just to do what you said and basically be polite and say, “Thank you officer for telling me what you want me to do, but I’m going to refuse that test now.”

Mike: Sure. You can decline. How you decline is up to you. I would recommend that you do it in the shortest, most succinct fashion possible. If an officer is asking you to step from the vehicle, you can certainly ask him for what purpose or why do you want me to get out. If he says. “I want you to do field sobriety testing,” you can simply say, “I’m not doing them.” Officers know that–that you don’t have to. They don’t have to tell you that, but they know that they can’t force them upon you. It puts the ball back in the court of the police officer to make a decision. You don’t have to offer any other explanation beyond that. Now I can guarantee you, almost guarantee you, that if you refuse to participate in field sobriety testing, almost inevitability that officer’s going to reach the conclusion that he’s going to make the arrest regardless.

John: Because you’re hiding something?

Mike: Well no. You’re not cooperating with him. You’re not participating in his investigation. He’s going to make the arrest. Oftentimes they make the arrest because they think they have enough at that point anyway. What is interesting, the big, big distinction between Massachusetts and New Hampshire is if you refuse field sobriety testing or if you refuse chemical testing–breath, blood or urine testing–in New Hampshire, they can testify in court and use against you as consciousness of guilt the fact that you were offered a field test or chemical test and you refused.

In Massachusetts where one of, I think only, two jurisdictions in the country where if you are offered testing, field testing or breath testing, and you refuse the refusal is not admissible against you in court. In Massachusetts, if you refuse all testing they’re not allowed to testify before a judge or jury that you did that. Oftentimes the police are left with very little evidence in order to form an opinion that you were impaired and at least, they’re very limited in their ability to prove that case by proof beyond a reasonable doubt that you were, in fact, impaired if you’ve politely refused everything.

John: Now if you’ve refused in Massachusetts and then it does go to trial, you said it’s not admissible. Do they just have to tell the jury well we don’t have any field sobriety tests available?

Mike: Usually they don’t get to that point because the fact that they were offered and refused is not admissible. So they’re often left with a description of the driving, if the driver was speeding or weaving or they were over the fog line, I pulled them over, they appeared to have glassy eyes, their speech was a little bit slurred, there was an odor of alcohol. That might be it. That’s all they’re left with. What’s important to understand as well is if you do refuse testing and you are arrested and then you refuse chemical testing, there’s an administrative consequence through the Registry of Motor Vehicles or through the DMV in New Hampshire: you’re going to lose your license based on that refusal. That’s true in both states. There’s a consequence to refusing testing. But I think most lawyers would tell you that they prefer that you not participate in field sobriety testing and that you refuse chemical testing.

John: Okay. How should the individual handle that situation if the officer ends up becoming upset or agitated after you’ve declined the field sobriety tests?

Mike: It’s their show. They have the ability to place you under arrest. They certainly have that authority, that legal authority. If an officer tells you, “Listen, I want you to get out of the car, I’m putting you in custody,” you need to do just that. You do that without giving them any physical — you don’t get physical with them, you don’t get verbal with them, you cooperate, you remain quiet and polite and you’re going to be handcuffed and you’re going to be transported to a barracks or police station and you got to get through that process. And you should do so without making any statements or talking about the evening or the events. You do have to provide them certain information to get through that booking process, which is more biographical information and you’ll be released. The less said the better.

John: Okay. All right. Great information Mike. Thanks again for speaking with me today.

Mike: Sure.

John: For more information about Mike Bowser, visit Bowserlaw.com or call 888-526-9737.

What Happens If I’m Stopped for DUI or DWI?

Dean Contover: I’m driving down the road. I’m stopped- I’m allegedly stopped for DUI, is that what they call it?

Mike Bowser: In Massachusetts, they refer to the offense as OUI because our statute says “Operating Under the Influence”. In New Hampshire, they commonly refer to it as DWI because the statute the law says “Driving While Intoxicated”. Other states, “Driving Under the Influence”. So DUI, OUI, DWI are all the same thing, they are all drunk driving.

Dean: Same thing. Okay. All right. I’m going down the road, I’m stopped, pulled over, what happens? Because I don’t know what happens.

Mike: What happens typically is an officer is going to approach the vehicle and he’s always, depending on what the reason for the stop is, whether it be a tail light is out, you roll the stop sign, you’re weaving over the lines, whatever it may be. An officer is always going to approach cautiously and he’s going to ask you for license and registration. Typically engage you in a few routine questions, “Where you’re coming from, where you’re going, do you know why I stopped you?”

And if there’s any indication to that officer, that you have either consumed alcohol or that you’re impaired by drugs or alcohol, typically upon returning to his vehicle to check your license and your registration for outstanding warrants, to make sure everything is current, he’ll usually call for backup, maybe a second cruiser will arrive and he’ll ask you to step from the vehicle to participate in field sobriety testing, which are standardized roadside exercises or maneuvers that officers are trained to utilize to detect an impaired driver.

And then based on the results of those tests, in the conversation at roadside, you could be placed in custody, brought to a barracks or a local police station, and there they’re certainly going to ask you to submit to a chemical test, breath, blood, sometimes urine but typically what you’ll see is a request to take a breath test.

Do You Have To Take The Field Sobriety Tests?

Dean: Okay. So do you have to take those tests, once you stop?

Mike: In Massachusetts, in New Hampshire, the two jurisdictions where I practice, what’s interesting is, you have an absolute right to refuse to take a field sobriety test. And often, I wish my clients would have exercised that right because they’re terribly difficult to pass under the very best circumstances. They’re literally balance, coordination, being able to recall minute details.

Dean: The Alphabet?

Mike: Well, it’s not just the alphabet, they’re difficult exercises. I believe that they’re designed to fail. They’re rote and familiar activities for one group of people, one group only, police officers. For the rest of the world, the rest of the motorists that out there, they’ve never seen them, they’ve never been exposed to them. And when they’re asked to participate, it’s possibly 2:00 in the morning, in a breakdown lane on Route 93 Northbound, in Wilmington, whatever it may be, it’s a tough situation to find yourself in. You have an absolute right to refuse to take those tests.

Consequences of Refusing a Field SobrietyTest

However, in Massachusetts and New Hampshire, the police officers are not obligated or required to tell you that. And what’s interesting if you refuse to participate in field sobriety tests in Massachusetts, that refusal is inadmissible in a courtroom. Meaning, an officer doesn’t get to go in front of a judge or a jury at trial and say, “I asked Mr. Contover to take a field sobriety test but he refused.” That doesn’t come in in Massachusetts. In the Hampshire, it does.

And in Massachusetts, if you’re offered the breath or a blood test, and you refuse to take the chemical test…

Dean: A blood test…

Mike: Or whatever the chemical test is. If you refuse that chemical testing in Massachusetts, the refusal is inadmissible in Massachusetts. So they don’t again go before the judge or the jury, at trial and say, “I asked Mr. Contoverr to take a breath test, he would not take it.” In New Hampshire, it does come in.

Now Massachusetts, the Commonwealth, is one of the very small minority of jurisdictions where the refusal evidence is inadmissible. I think we’re one of only three jurisdictions in the country. And you have to deal with that at trial. There’s an instruction in the courtroom in Massachusetts called the “Downs Instruction,” Commonwealth v. Downs, where a judge many years ago in the Ayer District Court, instructed the jury that there is no evidence of a breath test in this case, therefore you shall not mention it, do not talk about it in your deliberations, put it entirely out of your mind and do not hold it against the Commonwealth or the defendant that there isn’t that evidence in this case. It’s not part of the evidence. Which is a good instruction because I think most jurors going into a jury pool and jury service, are automatically going to assume there’s a test or why isn’t there a test.

And I’ve had the experience where a judge has refused to give the Downs Instruction, I said, “Your Honor, if you don’t give it, they’re going to ask a question about it”. And he disagreed with me and 20 minutes later, the question from the jury in writing was, where is the breath test? And by that time, cat out of the bag, they’ve already been back there, deliberating and talking about it and that’s not what I want to happen. I want them to focus on the evidence that they do have as opposed to speculate about evidence that they don’t.

But in New Hampshire, you have to deal with that refusal evidence and you need to explain it.

The Statutory Rights Form or Administrative Suspension Form

Dean: Now, when you refuse it, do they give you a piece of paper to sign?

Mike: Yes. We would refer to it as the Statutory Rights Form in Massachusetts. It’s called the Administrative Suspension Form in New Hampshire. And it essentially sets forth that you’re under arrest. You’re being asked to submit to a chemical test. There are consequences to your decision to take it. If you’re over .08 there is a consequence to your decision to refuse, if you decide to refuse, which is loss of license as well. Being advised of these rights, what do you want to do? And then you sign indicating that you’re either going to take the test or you’re going to refuse it. Sometimes people refuse to sign any paperwork because they say, “I’m not touching anything or signing anything without a lawyer.” And interestingly enough, in both jurisdictions, Mass and in New Hampshire, the case law is very clear. You’re not entitled to a lawyer during that administrative process. If you were in a courtroom, certainly you would be, but at that station when you’re asked to make that decision, there’s no right to consult an attorney at that point. So they ask you to sign indicating that you’ve been advised to make a decision and then…

Dean: Well, how long is the piece of paper – is it detailed, is a legalese?

Mike: It’s very legalese. New Hampshire has the highest refusal rate in the country and I’m convinced that one of the reasons is that that Administrative Suspension Form as written is very legalese, it’s not well written, it’s not plain English, it’s not easily understood. The first sentence is, “You are under arrest for acts that are alleged to have been committed while driving under…” and people are like, “What does that mean? Am I charged or not?” And oftentimes, it just leads to more confusion.

And in New Hampshire, a typical first offense, to keep it easy, a typical first offense, if you’re already under arrest, you’re already charged with DWI, if you take the test and you blow over, you lose your license or privilege for 180 days. If you refuse to take the test, you lose your license or privilege for 180 days. So there’s no justification right out of the gate to take it. Whereas in Massachusetts, the statute has changed drastically. If you take the test and you blow over, it’s a 30 day loss of license. That’s it. Whether you have one prior, two priors, three priors, four priors. If you refuse the test, it’s a 180 day loss of license. And if you have priors, that chem refusal suspension is graduated, so that if you have one prior, it’s a three year loss of license, if you have two priors, it’s a five year loss, if you have three priors, which many people do going back over decades, into the 70s, in the 80s and the 90s, it’s a life time loss, just for the refusal.

So the form in Massachusetts says, “If you refuse, your license shall be revoked for a period of 180s days up to life.” And that’s how they explain that graduated suspension.

Dean: If it’s a first time offense, would you tell somebody to refuse it?

Mike: Well, I never get the opportunity to be involved in their decision making process. As a defense lawyer, I would prefer, the perfect defense for me…

Dean: I hate to put you on the spot.

Mike: No, it’s okay. And I get asked all the time. I mean, as a defense lawyer, I would prefer that my client exercise his right to refuse the field sobriety test and exercise their right to refuse the chemical test. However, I don’t have to live with the consequence of that decision on the breath test. My client, if he or she exercises her right to refuse, is going to be left without the ability to drive for a period of 180 days up to lifetime.

In Massachusetts, the only way to vacate or get rid of that CTR, the chem test refusal suspension is an acquittal or an outright dismissal of the criminal complaint. So oftentimes, on the subsequent offense, second and third offenses, with three year CTRs, five year CTRs, I am going in with every ounce of my energy trying to get an acquittal, so that I can then ask the judge, because the law says in Massachusetts, if you are acquitted or the complaint is dismissed outright, you’re entitled to have the judge order the registry to give your license back from the chem test refusal. It’s discretionary; the burden is on the government, the prosecutor, to show that you’re a public safety risk. Otherwise, if they can’t, then upon the acquittal, I’m getting the license back for people. So ideally and again…

Dean: But what happens is, when you go to court, I mean sometimes, it’s two or three months out anyway. I mean in regards to…

Mike: Sometimes, it’s 12 to 18 months. Depending on what venue you are in. By way of example, the Ayer District Court has one judge, not two anymore. That one judge conducts trials only on Mondays and Tuesdays. So it oftentimes takes in excess of 12 months to get a jury trial date in a court like Ayer. Some of the busier courts, Lawrence, Woburn, Lowell, Peabody, Lynn — I bounce around quite a bit — every one is different and it’s based on the number of cases, the number of judges and the number of days that they actually hold jury sessions. Now there are certainly courts where you can rocket-docket it, if you really wanted to get it done quickly, but it’s typically several months minimum, before you get a trial date.

Researched and Prepared by: Attorney Amy Manchester for Bowser Law

Effective January 1, 2016, pursuant to RSA 263:57-b, a person convicted of Driving While Intoxicated First Offense will be eligible to obtain restoration of his or her driving privileges for limited purposes. The offense need not have occurred on or after January 1, 2016.

In order to be eligible to obtain this restoration, the person must have served 45 days of a court-imposed suspension.

In order to obtain these privileges, the person shall submit proof of financial responsibility and an application that demonstrates the need for the license. Along with proof from the employer, program, medical treatment facility, state-approved educational institution or other destination, one of the following must be presented for consideration of restoration for limited purposes:

• The person needs to drive in order to perform his/her job
• The person needs to drive in order to seek employment or to get to and from a place of employment
• The person needs to drive in order to get to or from an alcohol or drug treatment or rehabilitation program
• The person or a member of his/her immediate family requires medical treatment on a regular basis and the person needs to drive so that the treatment be obtained
• The person needs to drive to continue his or her education
• The person needs to drive to attend job training

If a license is restored based on one of the aforementioned prerequisites, the driving privileges are limited as followed:

• The person may drive on the times and days to the places determined to be necessary for the person to seek or retain employment, to attend any rehabilitation programs, to continue his/her education, to attend job training or to obtain required medical treatment for the himself/herself or a member of the immediate family
• The person may drive on times, places and days only that are specifically stated
• The vehicle must be equipped with an interlock device. The interlock shall remain in place until completion of the court-imposed suspension.

If a license is restored under this method, it shall expire on the date specified by the Court

If a driver’s privileges are restored under this method and the driver violates RSA 263-57:b, the license shall be revoked

If a driver’s privileges are restored in this manner, he or she must give a copy of the court’s order granting the limited privilege to the law enforcement agency in the city or town in which the driver resides. When operating his/her vehicle, the driver must keep a copy of the court order in the vehicle.

According to the department of safety, a restricted license will not be issued on an administrative license suspension. The DMV may honor a court order, however. If a person wins the ALS or the ALS is pulled as part of a plea, they may be eligible for the hardship license.

It is not yet determined if the provisions of RSA 263-57:b will apply to a modified first/second first DWI conviction.

This is the form that needs to be filled out to file for a New Hampshire hardship license

Researched and Prepared by: Attorney Amy Manchester for Bowser Law

SR-22 stands for “Safety Responsibility Form 22.” SR-22 is simply a certificate, or proof of, insurance. If you have been convicted of Driving While Intoxicated, Underage Driving While Intoxicated, Leaving the Scene of an Accident, Conduct After an Accident or a Second Reckless Operation, you must file an SR-22 certificate with the state of New Hampshire. Even if you are not a resident of New Hampshire, you must still file a certificate with New Hampshire. If you do not, New Hampshire will suspend your license and inform your home state of the suspension in New Hampshire. You also still need to file an SR-22 certificate even if you do not own a vehicle. In that scenario, you file what’s known as an operator’s SR-22, which insures your driver’s license or your privilege to drive.

You will have to file an SR-22 certificate for 3 years after your first offense, and habitual traffic offenders have to file one for three years after decertification. Sometimes, in order to retain or restore your license, the Department of Motor Vehicles may require you to file it as a condition of retention or restoration.

New Hampshire does not have a specific SR-22 form. There is a uniform certificate or form that is used throughout the insurance industry, and your individual insurance company should have access to the form.

Researched and Prepared by: Attorney Amy Manchester for Bowser Law

A habitual traffic offender can be either a resident of New Hampshire or an out-of-state resident. If your driving record reflects that you have accumulated a certain amount or combination of both major and minor motor vehicle violations over a period of five years, you will become a habitual traffic offender.

A driver will be certified as a habitual traffic offender if he or she has been convicted of three major motor vehicle violations over a five-year period. You may be wondering, what is a “major” motor vehicle violation? New Hampshire has a long list of traffic violations that are considered to be “major” for the purposes of certification as a habitual traffic offender. Major motor vehicle violations include but are not limited to Driving While Intoxicated, Reckless Driving, Driving After Suspension, Negligent Operation and Transportation of a Controlled Substance. A full list of major motor vehicle violations can be found in NH RSA 259:39(I)(a-v).

A driver will also be certified as a habitual traffic offender if he or she has been convicted of twelve minor motor vehicle violations over a five-year period. Minor motor vehicle violations are a shorter list and include speeding. A full list of minor motor vehicle violations can be found in NH RSA 259:39(II)(a-d).

If a driver’s record shows that he or she has been convicted of a combination of 1 major motor vehicle violation and 8 minor violations over a period of five years, that person will be certified as a habitual traffic offender. Additionally, if a driver has been convicted of a combination of 2 major motor vehicle violations and 4 minor violations over a period of five years, that driver can also be certified as a habitual traffic offender.

If a driver is certified as a Habitual Traffic Offender, he will face a period of suspension ranging from one to four years. A habitual traffic offender is able to restore his license but must petition the Department of Motor Vehicles after the period of suspension has ended.

If a driver is certified as a Habitual Traffic Offender and drives during the period of suspension, he can face 1-5 years of incarceration and a fine up to $4,000.00.