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New Hampshire DWI/DUI
Portsmouth, NH Office
Nielsen & Bly, PC
118 Maplewood Ave
Portsmouth, NH 03801
(603) 373-1617 |
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June 24th, 2010
The Miranda rights seem like they would be very easy to understand, even when you are facing a DUI (driving under the influence) charge in New Hampshire. They include four very simple rules, some of which cooperate with and reiterate rights already granted by the Constitution of the United States. As a matter of fact, most of us can quote all four of them nearly verbatim due to law enforcement shows on television and popular movies.
First, you have the right to remain silent. Put simply from a lawyer’s perspective, this means that you should not give the police any information until your attorney is present. Be respectful and courteous, but assert your wish to remain silent in order to avoid incriminating yourself. Second, anything you say is going to be used by the police and prosecutor against you later. Whether this means a confession or the information leads to evidence, your words can come back to haunt you if you are not careful with them. Third, you have the right to an attorney. This goes hand-in-hand with the 4th Amendment right to adequate legal counsel. You are not expected to understand the complexities of the law. Lastly, the state must appoint someone to handle your case if you cannot afford an attorney. These court-appointed attorneys are required to put forth just as much effort for your case as they would any case that they receive a retainer for.
Keep in mind that, in order for these rules to be used against you, you have to be read your rights when you are arrested. Even if you confess to a crime, if you were not properly mirandized, then the police cannot use the information against you in court. That does not necessarily mean that the DUI charges will be dropped, or that you will be acquitted of the DUI charge, but that other evidentiary forms will need to be used to satisfy the prosecution’s burden of proof.
If you were not read your rights, contact a skilled and professional DUI attorney in New Hampshire as soon as possible. He/she will want to begin building an effective defense for your individual case, and this information is critical. Do not wait until you are about to be sentenced to request an attorney to fight for your rights, retain a competent DUI attorney or request a court-appointed DUI attorney as soon as you are arrested.
Tags: DWI arrest, DWI lawyer, Miranda rights, New Hampshire
Posted in DUI Arrest, DWI Updates, New Hampshire DUI | No Comments »
June 22nd, 2010
We have all seen shows such as “Cops,” that feature lawbreakers and potential lawbreakers being read their rights before being arrested. While most of us believe that we understand our rights very well, very few people have stopped to think about what the Miranda rights really stand for, and how they apply to any arrest. If you are arrested for driving under the influence of drugs/alcohol, DUI, you will need to know how your arrest and trial may be impacted by proper vs. improper Mirandization.
First, it is important to understand that you have four basic rights according to Miranda law. These rights are as follows:
1. You have the right to remain silent. If you choose to speak, you have waived this right.
2. If you waive the first right, whatever you say will be used by the prosecution during the trial phase.
3. You have the right to an attorney. You cannot be denied an attorney based on sex, race, creed, religious belief, sexual orientation, handicap, or any other reason.
4. Money cannot be your reason for not having adequate legal counsel. If you cannot afford an attorney on your own, you may request that the judge assign an attorney for your representation.
Understanding these four basic rights is critical, because if you are not read your rights, then anything you say could be suppressed later. This is true for confessions, information about other cases, shows of remorse or regret, and much more. Evidence collected as a result of suppressed evidence will also be suppressed. It is vital that you tell your attorney right away if you were not read your rights at the time of your arrest.
Miranda rights are not considered Constitutional rights, and there is a vast difference between the rights you have according to the Constitution and those that are deemed as rights by the federal government due to legal precedent. The Miranda rights have been a part of the U.S. legal system since the 1960s, but these are just as precious as any Constitutional right due to their implications. If you feel that your rights have been violated, speak to your lawyer, court-appointed or retained, in order to find out what options you have according to state law.
Tags: DUI Arrest, legal precedant, Miranda rights
Posted in DUI Arrest, DWI Updates, New Hampshire DUI | No Comments »
June 18th, 2010
Lawyers are trained to recognize and understand aspects of the law that we common folk may not even know exist. As such, they comprehend the ins and outs of the law, knowing what to question and when, how to find loopholes, and even learning when they can request that evidence be suppressed, or be declared inadmissible as evidence during the trial. Here are just a few common questions and answers regarding DUI, driving under the influence, lawyers, their importance, and how to become one.
Can anyone become a DUI lawyer?
No. Like doctors, lawyers must be trained to specialize in DUI law in a given state. There are not nearly as many DUI lawyers in the United States as one might imagine, as most lawyers who will represent someone charged with a DUI are criminal lawyers. Criminal lawyers understand DUI law, but few choose to specialize in these cases.
Does a lawyer have to go back to school to train for DUI specialization?
No. However, specialization in DUI defense requires a great deal of advanced training in all aspects of DUI defense such as field sobriety testing, breath testing equipment operation, forensics training, certification courses, etc. Anything the police officer or state’s chemist knows about DUIs, the DUI defense attorney should know as well.
If I pay to hire a DUI lawyer versus a court-appointed lawyer, will I be guaranteed no jail time?
Paying for a DUI lawyer cannot guarantee your freedom, and having a court-appointed lawyer will not guarantee a conviction. There are many variables to consider, and each case and individual are different. Each variable can cause a potentially different outcome.
Why should I retain a DUI specialist if a court-appointed lawyer can do just as good a job?
This question can best be answered by an example. If you have a problem with your heart, you don’t go to the podiatrist. The podiatrist specializes in feet while a cardiologist specializes in problems with the heart. Whenever you have a legal problem, it is best dealing with the attorney who specializes or concentrates their practice on that area.
Tags: DUI defense, DUI defense attorney, DUI Laws, DUI lawyer, specialist
Posted in DUI FAQ, DWI Updates, NH DUI Attorney | No Comments »
June 16th, 2010
A good number of television shows and movies feature cases that involve driving under the influence, DUI, charges up to the sentencing phase of the case. However, there is often one final step that can be taken for those who believe that their conviction was not warranted. Appealing a DUI case can be tricky, as there are many laws and statutes that offer little wiggle room in this type of case, and the majority of appeals are only heard if there is strong evidence of gross misconduct or a blatant miscarriage of justice.
Those convicted of DUI charges have only a very limited amount of time in which to appeal the court’s decision during the sentencing phase. In addition, once this window closes, it takes something drastic to reopen it, and this very rarely happens. It is estimated that less than 1% of cases that are appealed are actually granted. Therefore, although hundreds of cases may be appealed in a timely manner in a given year, only a handful or so are actually successfully appealed, and even fewer actually win the appeal.
When a conviction is appealed, it goes to the next higher court for review. The appellate court does not hear new evidence, and it is very unlikely that you will have to appear for this court hearing. They simply review the official court documents, especially the official case transcript, and ask questions as needed. Your attorney, and the prosecuting attorney will be present, or available for questioning. If there is sufficient evidence to warrant a blatant error or misjudgment, then the case may be heard in the appellate court.
You cannot simply go over the presiding judge’s head so to speak to request an appeal or new trial. There are avenues that must be followed in order to request the appeal, such as by requesting that the trial judge take a second look at the case, or asking for a new trial based on some new evidence. Keep in mind that only cases that went to trial or litigated suppression hearings are eligible for an appeal, since those who sign plea bargains often sign away their right to appeal the case later.
Tags: DUI case, DUI Charges, new evidence, plea bargains, request an appeal
Posted in DUI Charges, DWI Updates, New Hampshire DUI | No Comments »
June 14th, 2010
Judges face the challenge of deciding what punishment is appropriate for a given individual during the sentencing phase of a DUI, driving under the influence of drugs/alcohol, case. There are many options to select from, some of which may not be appropriate for a variety of reasons. Judges are forced to choose what is best, and fitting, for the given situation, after taking into account many factors.
Factor 1: The judge must weigh all of the evidence. The majority of cases never reach the trial phase, and it is often up to a judge to review the prosecutor’s evidence in order to decide if the case has any merit. If the prosecution cannot satisfy the state’s burden of proof, then the charges should be dismissed and no sentence is necessary. When sentencing becomes necessary, other factors are examined.
Factor 2: The judge must take into account the presence or absence of aggravating factors, such as excessive speeding, driving with a minor in the car, extremely elevated blood alcohol concentration (BAC), refusing to submit to BAC testing, trying to elude police, or causing an accident, with or without injuries or property damage. When one or more of these apply, the judge must decide whether the situation warrants more serious penalties.
Factor 3: The judge must consider mitigating factors, if any exist. For example, if John was driving under the influence, but did not know that his medication would increase his BAC when combined with alcohol, the judge may decide to show a small amount of leniency. On the other hand, if John took the medication, even with a clear warning on the bottle to avoid alcohol, this negates the factor.
Factor 4: Shows of remorse or regret can be considered factors in this type of situation. Sometimes, the judge will show a small amount of leniency to someone who is truly repentant for wrongdoing. If you have multiple convictions for DUI, then this will likely not be a factor, as it is mostly reserved for first time offenders.
Many more factors may exist in any individual case. For this reason, it is important to have an experienced DUI attorney fighting for you, to find these factors and minimize your sentence as much as possible.
Tags: aggravating factors, blood alcohol concentration, driving under the influence, DUI attorney, DUI judges, mitigating factors, sentencing phase
Posted in DUI Sentencing, NH DUI Attorney, New Hampshire DUI | No Comments »
June 10th, 2010
You likely have many questions about what to expect during the sentencing phase if you are convicted of driving under the influence, DUI, in New Hampshire. This is to be expected, since this is likely a stressful time in your life, even with the help of an experienced New Hampshire DUI attorney. Here are some frequently asked questions, and their answers, in no particular order of importance:
This is my first misdemeanor offense, and there were no injuries or property damage. I should get off pretty light, right?
Not necessarily. The state of New Hampshire treats DUI charges very seriously, and you could see up to two years’ loss of driving privileges, a monetary fine, jail, alcohol education classes, or even mandatory rehabilitation even for a first offense.
I have one DUI conviction in the last few years, but there were no “aggravating factors” according to my attorney. What does this mean?
If the conviction is within two years of the last one, your mandatory jail time is increased, and the court will add a minimum of one week in a repeat offenders facility. In addition, expect increased fines, mandatory counseling, rehab, or classes, and increased loss of driving privileges. Adding aggravating factors can seriously increase these penalties.
My case had “aggravating factors” according to the prosecutor. What is an aggravating factor?
This can mean excessive speed, driving with a minor in the car, extremely elevated blood alcohol concentration (BAC), trying to elude police, or causing an accident, with or without injuries or property damage. Aggravated DUIs are serious business in New Hampshire.
Will my sentence be more severe if I refused to submit to BAC tests? What happens if this isn’t my first refusal?
The state treats this failure to cooperate seriously, since New Hampshire is an Implied Consent law state. Refusing to submit leads to increased penalties, such as longer loss of driving privileges, and refusing more than once within a few years can lead to additional penalties.
Tags: aggravating factors, DUI Penalties, implied consent law, New Hampshire, New Hampshire DUI attorney
Posted in DUI FAQ, DUI Sentencing, NH DUI Attorney, New Hampshire DUI | No Comments »
June 7th, 2010
Getting charged with driving under the influence, also known as a DUI, can be stressful without adding anything to the equation. Some DUI charges are simple misdemeanors, requiring no jail time, minimal monetary fines, and shorter license suspensions. If you add certain aggravating factors, though, this can quickly spiral out of control. For that reason and many more, if you are charged with a DUI in New Hampshire, you need the help of an experienced DUI attorney.
Several driving-related factors can increase the risk of jail, such as criminal speeding (speeding in excess of 30 miles per hour over the posted speed limit), reckless driving, attempting to evade police, and so on. If you have anyone under sixteen with you it is considered an aggravating factor and will lead to aggravated DUI charges. Finally, an extremely elevated BAC (blood alcohol concentration) can lead to aggravated DUI charges, if your BAC is more than .16%, twice the legal limit. However, an aggravated DUI is different than a felony charge. Aggravated DUIs are misdemeanors, which are not nearly as serious as felony DUI charges.
There are a few other factors that can influence the prosecuting attorney’s decision to file charges as a misdemeanor or a felony. If you have a history of DUI convictions within the past ten years, you will be charged with a felony. Furthermore, if you are involved in an accident leading to serious bodily injury or death, a felony charge will likely be brought against you.
Being convicted of a felony in New Hampshire can lead to serious jail time, hefty monetary fines, loss of driving privileges for many years or even the rest of your life, mandatory alcohol education classes, criminal restitution fees, and much more. The monetary expense alone could ruin your life, without even beginning to factor in the emotional and mental expense for both you and your family. Do not wait until it is too late to protect your future; contact a skilled DUI attorney right away to learn your options.
Tags: aggravated DUI charge, blood alcohol content, DUI Charges, felony DUI, felony in New Hampshire, New Hampshire DUI attorney
Posted in DUI Arrest, DUI Charges, NH DUI Attorney, New Hampshire DUI | No Comments »
June 4th, 2010
You are not the only one that is affected by a DUI, driving under the influence of drugs or alcohol, conviction in New Hampshire. In fact, there are many others who can be affected by this life-altering event, each in different ways. Some effects are long lasting, while others are really only short-term, depending on perspective and relationship. Here are a few examples:
Family Relationships
Your family is the group of people affected most, outside of you, by a DUI conviction, especially if the trial was long, very publicized, or there were deaths or extensive property damage involved. The stickier the situation, the more likely that the media will get hold of it. Once that happens, everyone who knows you personally or casually will begin to be affected somewhat.
Children suffer tremendously from this type of thing, because other children view them as outcasts if their parent is in jail, especially if someone died. Social stigma can change a child’s life forever, and not always in a positive way. It can take years of therapy to reverse the psychological damage that can be caused by social stigma, depending on the child’s age and developmental history.
Work Relationships
Even your coworkers can be affected by your DUI conviction, especially if your penalty included incarceration. After all, if you cannot go to work, then someone would need to replace you more than likely. Those who have been on a job for years have knowledge and experience that makes them valuable to their employer, and the time and expense of training someone to take your place, even if only until you can return, can be a real problem.
This becomes even more apparent if you own a small business and have employees of your own. Each of them will be affected by a conviction in some small way, regardless of whether you are close friends. Unless you have trained someone to take your place in case of sickness or absence, your business could collapse without your guidance.
Having an attorney does not guarantee that you will not be convicted, but it does give you a fighting chance to have charges dropped or reduced in your case. Contact an experienced NH DUI attorney today to begin building your defense.
Tags: driving under the influence, DUI consequences, DUI conviction, New Hampshire DUI laws, NH DUI Attorney
Posted in DUI Penalties, NH DUI Attorney, New Hampshire DUI | No Comments »
May 28th, 2010
You may believe that there is no hope left for a minor arrested for driving under the influence of drugs or alcohol in New Hampshire. While the options are much more limited, an arrest does not necessarily mean the end of the world. Here are some answers to frequently asked questions on the subject:
I am eighteen, and was arrested for DUI. I already talked to the police, after they searched my car and found an open container. Do I have any hope of a positive outcome?
There are many defense strategies that could apply to a case like this. They may include laws that regard your rights, such as if you were not properly mirandized, laws regarding search/seizure, and regulations that apply to the various methods of detecting alcohol impairment. A skilled New Hampshire DUI attorney will understand what is best for your case.
What is the legal limit for those under the legal drinking age?
In the state of New Hampshire, anyone under the age of twenty-one, the legal drinking age in the state, cannot have a blood alcohol content, BAC, higher than .02%. If you are above this number, or show obvious signs of impairment, you can be arrested immediately. If you are below this number, you may still be arrested if the officer has a reasonable belief that you are too impaired to drive.
I am twenty, and was arrested for DUI after causing an accident that led to some serious injuries. Will I ever get my license back?
New Hampshire has strict guidelines regarding minor consumption of alcohol, and these are imposed in addition to those statutes that apply to aggravating factors such as injuries or fatalities. In other words, the answer depends on the individual circumstances, and the person.
I’m underage. Can the police still ask me for a breathalyzer test, or to complete sobriety testing?
Yes. New Hampshire is an Implied Consent state, without regard to age or sex. If you are believed to be too impaired to be operating a vehicle, police officers can ask you to complete a breathalyzer test or roadside sobriety testing. They have a duty to protect the public from harm, and that includes both you as a driver and the public in general.
Tags: breathalyzer test, driving under the influence, DUI attorney, minor arrested, police officers
Posted in DUI FAQ, New Hampshire DUI | No Comments »
May 25th, 2010
Most people assume that there is only one way to charge a DUI, driving under the influence of drugs or alcohol, and that is by the common law method. This belief is mistaken. There are actually two very distinct ways that a DUI may be charged, depending on a lot of different factors in the individual case. Here is a brief breakdown of the two charges, based on how they differ and how they are the same.
Common law DUIs are likely the most common in New Hampshire DUI cases, and this simply means that the individual was arrested for driving under the influence of drugs and/or alcohol. The opposing party, the prosecution, must use a variety of evidentiary forms to prove that the DUI was legitimate in order to achieve a conviction. Then the case turns to the penalty phase.
Per se DUIs are associated entirely with your body’s chemistry at the time of the arrest and they are the easiest way for the prosecutor to prove your guilt. They have nothing to do with any signs of impairment, such as excessive speeding or inability to maintain lane. A per se DUI has everything to do with your blood alcohol content, or BAC, at the time of testing. One common defense involves the fact that blood alcohol levels continue to rise for a while even after you have stopped drinking, so at the time you are tested your blood alcohol content may be significantly higher than when you were driving.
Finally, it is important to note that the prosecutor does not have to choose which theory to charge you under. If he can’t prove the per se offense but can show impairment, he will secure a conviction.
Keep in mind that most first-time DUI offenders, regardless of whether it is a per se or common law offense, do not get jury trials. Only those with aggravating factors, such as having a minor in the car or the presence of serious injuries, fatalities, or tremendous property damage, or a BAC level of .16 or higher have the right to jury trials. In addition, people charged with subsequent offenses (repeat offenses) always have a right to jury trials.
The legal process for a DUI can be very confusing. It is essential to have someone on your side who understands New Hampshire DUI law as it pertains to your case. Do not wait until it is too late to protect your rights, and your future. Contact a professional DUI attorney in New Hampshire and begin building a more effective defense in your case.
Tags: aggravating factors, DUI charge, DUI law, New Hampshire, prosecutor
Posted in DUI Laws, New Hampshire DUI | No Comments »
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