Category: Drunk Driving

What constitutes an Aggravated DWI?

In Massachusetts and New Hampshire there are enhanced penalties for certain types of DUI Offenses, often referred to as “Aggravated DUI.”

NH Triggers for Aggravated DWI:

Elevated BAC Level, Child Endangerment, Excessive Speed, Eluding Police Pursuit, Serious Bodily Injury

RSA 265-A:3

If driving a motor vehicle with a BAC (Blood Alcohol Concentration) at or above a .16 in New Hampshire you will find yourself charged with the Offense of Aggravated DWI. Aggravated DWI in New Hampshire is a Class A Misdemeanor. A Class A Misdemeanor carries a maximum potential sentence of one (1) year in the county house of corrections. The mandatory minimum sentence requires a committed sentence to the house of corrections for three (3) days, followed by an immediate committed consecutive sentence of seven (7) days in the State run inpatient alcohol treatment program with mandatory aftercare, or, outpatient alcohol counseling. The mandatory loss of license is eighteen (18) months, with the ability to petition the court for reinstatement eligibility after twelve (12) months. Reinstatement of driving privileges is subject to an ignition interlock system on your vehicle for at leaast twelve (12) months. “Aggravated DWI” is also triggered by a DWI Offense involving any of the following situations: driving at a speed in excess of 30 MPH over the posted speed limit; driving with a child under the age of 16; attempting to elude pursuit by police; or causing serious bodily injury. Obviously the penalties for an Aggravated DWI far exceed those imposed for a standard First Offense DUI.

Massachusetts Triggers for Enhnaced DUI Penalties:

Child Endangerment Serious Bodily Injury and Motor Vehicle Homicide

In Massachusetts enhanced DUI penalties apply to any driver accused of being DUI with a child in the vehicle twelve (12) years old or younger. Rather than a minimum loss of license for as short a period of time as forty-five (45) days, the loss of license for DUI Child Endangerment carries a loss of license of one (1) year, and a committed jail sentence of ninety (90) days. See M.G.L. Chapter 90, section 24V. Massachusetts also enhances penalties for DUI Offenses resulting in, or causing serious bodily injury. This charge can be brought at the misdemeanor or felony level and sentences therefore range from a mandatory six (6) months in jail, up to a maximum of ten (10) years in prison. Loss of license for either misdemeanor or felony level conviction is two (2) years. See M.G.L. Chapter 90, section 24L. Felony Motor Vehicle Homicide is triggered by a DUI Offense resulting in, or causing death by negligence and recklessness. Again, this charge may be brought as a misdemeanor where the prosecutor need only prove the DUI resulting in death, regardless of proof of negligence or recklessness. The sentences between the two (2) versions of this offense range from a jail sentence of thirty (30) days up to fifteen (15) years in prison. The Massachusetts Registry of Motor Vehicles will suspend the license of a driver convicted of either version of the offense for a period of fifteen (15) years. See M.G.L. Chapter 90, section 24G.

Why does New Hampshire have the highest implied consent refusal rate?

I know that New Hampshire has the highest refusal rate in the country in terms of implied consent, meaning when an officer arrests a driver in New Hampshire, brings him back to the station, reads them the implied consent form, and asks them to take a breath or blood test, folks in New Hampshire, more than any other citizens of any other state in the country, refuse to participate in that testing. I believe it is probably due to the fact that in New Hampshire, you’re given an option. If you take this test and you register over the legal limit of .08 on the Intoxilizer 5000, your license or privilege will be suspended for a period of 180 days. If you refuse that test, or you don’t take it, your license or your privilege to drive will be suspended for a period of 180 days. The suspension period is exactly the same whether you take the test and fail it, or you refuse it. And given that option, which really creates no benefit to the driver, faced with that decision, 85% of the people in New Hampshire, given that choice, decide, “I’m not taking the test.”

Why should I exercise my right to remain silent?

It is in your best interest if you are placed in police custody, or if you’re in a position, even at roadside, where you’ve been pulled over and an officer is asking you questions, you have the right to remain silent. You do not have to answer questions that are out to you. And I think very often people feel obligated by, whether it’s a guilty conscience or they think it’s the right thing to do to always cooperate and provide information to the police, it’s not in your best interest. You’ve heard the expression “everything you say can and will be used against you,” that is exactly what will happen. If you were at road side, if you’ve been pulled over, if the police begin to ask you questions, you should not answer the questions because everything that you say can and will be used against you. It will be construed and looked at from the perspective of an arresting officer who is making the arrest for a prosecution that’s going to come later. Everything you say will be included in this report, and if it’s damning, if it affects you adversely, it will certainly make it’s way into the report and into the courtroom. If you refuse to answer questions, if you exercise your right to remain silent, that’s not admissible, they can’t use that against you in a courtroom, the fact that you’ve exercised your constitutional right to remain silent. It’s always in your interest to be cooperative, to be polite, not to be belligerent, not to give the police a hard time, but at the same time, it’s not in your interest to answer questions. The less you say, the better. As I said, be cooperative, polite, but keep your mouth shut, don’t answer questions, and then talk to an attorney.

If I’ve Been Drinking, What do I do if I get pulled over?

As a DUI defense lawyer, I get asked that question more than any other question. Over the past 15 years I have tried to verdict literally hundreds of drunk driving defense cases. And that question, when people find out what I do for the a living that is the question that I am most often asked, whether it be in a social setting or at the soccer field or at the hockey rink, people wanna know “If I’ve been drinking, what do I do if I get pulled over.” And I think the only way for me to fairly and accurately describe what I think you should do is tell you what I would do if I were in that position.

If I had been pulled over by a police officer after having had something to drink I know from experience the officer’s going to activate the blue lights, perform a motor vehicle stop and pull me over. I’m going to roll down my window and I’m going to give that police officer my license and registration when he asks for it because I am required to identify myself and provide the registration for my motor vehicle. In all likelihood, the officer, if he assumes or thinks that I’ve had something to drink is certainly going to question or ask me whether I’ve been drinking. My response to that question and any other question at that point is, I will ask the officer, “Am I free to leave? Can I leave?” And his response to me is going to be “No.” He’s holding my license, he’s holding my registration, he’s not going to let me go anywhere. Therefore, I’m not going to be answering any questions.

Now a trained police officer may take offense at the fact that you’re exercising your right to remain silent, but you absolutely have the right to say to him “I don’t wanna answer any questions.” At that point, if his suspicions have been raised and they certainly will at this point, he’s gonna ask you, “Step from the vehicle I want you to participate in field sobriety testing.” If I were asked to participate in field sobriety test, my response to that officer would be “No, I’m not taking field sobriety test.” The officer’s not required to tell you, and this is true in Massachusetts and New Hampshire, he’s not required to tell you that you have the right to refuse field sobriety tests. And these tests are the horizontal gaze and stagnus, the one legged stand where you elevate one foot off the ground for 30 seconds, the walk and turn where you’re required to walk nine steps up nine steps back. I am certified and trained in those tests, I took the same training course as the police officers took, I am familiar with those tests from both experience and the number of cases I’ve handled.

Under the scrutiny of the police, the cruiser lights, the spotlights, the take downs, the break down lane, the traffic, and the nervousness and the fear and the embarrassment that goes with being placed in that situation, I believe those tests are designed to fail. Most people are going to have a very difficult time with those tests regardless of whether they’ve had anything to drink. Exercise your right to refuse those tests. Again, the officer’s probably going to take offense at the fact that you’ve exercised your right to refuse the test but the refusal of those tests in Massachusetts is not admissible against you in a court room, meaning the officer doesn’t get to stand up in front of a judge or jury, months later, and say “I asked Mr. Bowser to take the field sobriety tests and he wouldn’t.” He doesn’t get to testify to that issue. In New Hampshire, he would. He’s then gonna ask you to step from the vehicle because he’s gonna want to place you under arrest. And at that point you have to be cooperative, polite, don’t give that officer a hard time their job is difficult enough as it is, and you’re gonna be placed in custody.

So, when you’re placed in custody you’re handcuffed, you’re transported to the station, exercise your right and continue to exercise your right to remain silent. Don’t make statements, don’t be chatty, don’t be talkative. Anything that you say to that police officer is going to make it’s way into a police report, and whether you think it’s gonna hurt you or not, they are trained to elicit the statements that can be used against you and they will. When you get to the station, you’re going to be asked to take either a blood, breath or urine test.

In both Massachusetts and New Hampshire they have an implied consent statute, that just means that it’s implied that if your arrested for DUI you will take a chemical test. You have the right in both states to say, “No.” The refusal of those tests comes with consequences, and the consequences in Massachusetts can be a suspension of your driver’s license anywhere from 180 days up to life. Depending on what your prior record is. Again, I would not advise anyone to take a chemical test. Based on what I know about the technology, the physiology of alcohol, absorption, elimination, how the machine’s work. If you take that test and you register over the legal limit, that is gonna be the strongest piece of evidence the government can use against you and those tests are not fail safe they are not perfect. In New Hampshire you also have a right to refuse. If you take the test and you register over the limit it’s 180 days up to a 2 year suspension. It’s the exact same suspension if you refuse based on your prior record it could be 180 days or a 2 year suspension.

Again, my advice would be if it were me, and I were in that position, I would not take a chemical test, but you do need to realize there are legal ramifications to that. The only way to avoid that suspension based on a refusal in Massachusetts is a not guilty verdict or an acquittal. If you have participated in field sobriety tests and you have taken a breath or blood test, the ability for your defense lawyer to obtain an acquittal or dismissal of your charge becomes more difficult. You do not want to give the government the evidence that they’re going to use against you in a court room.

How are the Penalties for a First DUI Determined?

There is no one-size-fits-all answer to the question posed in the title of this post. The penalties for a first offense DUI in Massachusetts or New Hampshire can vary, however most first time offenders in both States are typically sentenced at or near the minimum mandatory penalty for a violation of the Drunk Driving Statute in each State. What does this mean in terms of defending a DUI charge? It is the opinion of this attorney that it rarely makes sense to plead guilty to, or make admission to, a DUI charge. Very few sitting Judges in Massachusetts or New Hampshire will penalize a defendant following trial with a more severe sentence or penalty. The consequences of a DUI conviction include the following sentencing conditions:

  • Fines and special victim/witness fees
  • Probation supervision and monthly supervision fees
  • Alcohol Driver Education Courses
  • Suspension of Driver’s License and/or Driving Privileges
  • Criminal record of conviction and exposure as subsequent offender in future

Although a First Offense DUI charge in Massachusetts carries up to a possible 2 ½ year jail sentence, very few first time offenders are sentenced to any period of incarceration. A First Offense DUI in New Hampshire, absent Aggravating factors, is a Class B Misdemeanor Criminal Offense, and carries no jail sentence. Without the possibility of incarceration there is no right to a jury trial, all cases are tried to a Judge, and there is no right to a court appointed lawyer. If you wish to defend a First Offense DUI in New Hampshire you will be responsible for finding and hiring your own attorney.

A Massachusetts District Court will appoint public counsel to a defendant charged with DUI if they qualify under financial guidelines. A First Offense DUI in Massachusetts may be tried to either a Judge sitting alone (Bench Trial) or to a jury of six (6) persons, but there is only one (1) trial and a defendant and his/her lawyer must decide which route to chose for the ultimate single trial.

Many of those charged with DUI in Massachusetts and New Hampshire appear before the respective Court with no prior criminal record. This is one of the reasons why so many first time offenders are sentenced to the minimum mandatory penalty, as opposed to more severe sentencing options, even after trial. Conduct resulting in the arrest does matter to the Court. A sentencing Court will consider a person’s background, prior criminal record, driver’s history, education and/or employment history, family obligations and dependents. In some cases it is appropriate to seek professional assistance with substance abuse and/or addiction behavior through counseling or self-help programs prior to a sentencing hearing before a Court. A qualified attorney should be willing and able to refer a client to appropriate professionals to identify and address substance abuse and/or addiction behavior.

Hiring a qualified, experienced DUI Defense Lawyer is the best way to ensure that a Court in Massachusetts or New Hampshire imposes the appropriate sentence in your particular case. More importantly it is the best way to avoid a sentencing hearing altogether. Drivers found “not guilty” on the DUI charge are never sentenced for that alleged offense. Don’t hire a plea escort service!

Board Certified DUI Defense Attorney Michael Bowser has over fifteen (15) years of experience successfully defending those charged with DUI in Massachusetts and New Hampshire. If you have been charged with DUI in Massachusetts or New Hampshire or have questions about DUI penalties and sentencing options in either state, it is vital that you contact Attorney Michael Bowser today at 1-888-5BOWSER or visit his web-site www.bowserlaw.com