How A DUI Case Progresses

In order to help you better understand the legal process surrounding DWI in New Hampshire, below is a sample fact pattern and case evaluation. This is a hypothetical and not based on an actual case result.

Facts

John Doe, a 20 year-old male, drives to a friend's house around 7:00 p.m. on a Saturday night. He reportedly consumes two-three beers between the 7:00 p.m. and 9:30 p.m. when he leaves to drive some of his friends to a local store to get cigarettes. When he arrives at the store, his friends get out of the car and walk toward the entrance. John shuts the car off and waits in the vehicle. He's driving a 1989, VW Golf. It just so happens that the local police are conducting an underage drinking "sting" to make sure the store is not selling to minors.

An officer in plain clothes observes John approach the store and back into a parking space. The same plain clothed officer approaches the John's vehicle. The officer engages John in conversation through the partially opened window. The officer does not yet identify himself. In response, John rolls his window all the way down and starts to talk to the police officer. The officer asks John whether he knows if there are any parties around town. The two talk about the fact that each looks familiar to the other. At one point, the police officer asks John for the time. John looks at the clock near the center of the dashboard and gives the officer the time and has no trouble doing so.

The police officer reportedly detects an odor of alcohol coming from John's breath. The officer asks John whether he's been drinking. John denies drinking. The officer asks John to get out of the car to perform some field sobriety tests. John agrees and gets out of his car. John has no trouble getting out of his car and no trouble walking to the area where the officer wants John to perform the tests. The officer conducts three tests — HGN (pen test), walk-and-turn, and One-leg stand. John thinks he does okay, but at the conclusion of the tests, the officer arrests John and places him in the rear of his police cruiser. [Learn more about the field sobriety test.]

He takes John to the police department where he reviews John's ALS "rights" to him. John agrees to take a breath test. The officer gives John his Miranda warnings and John answers some questions on an alcohol influence report. Since this police department is so small, the officer has to drive John to the local state police barracks in order to take the breath test. The officer is not qualified to conduct a breath test and calls a state trooper to conduct the test. The trooper sets up the machine while he is supposed to be observing John for 20 minutes to make sure nothing enters John's mouth which could throw off the test results. By the time John actually blows into the machine it is after midnight. John blows over the legal limit — a .10. The arresting police officer drives John back to the local PD, and John is released to his mother.

Penalties

Because John blew over the legal limit of .08, the New Hampshire Department of Safety will seek to suspend his license for six months. John has a right to request a hearing at the Bureau of Hearings to challenge this six month loss of license. He must request this hearing within 30 days or his right to do so will be waived. Because John is under 21, the district court will seek to revoke John's license for a minimum of 12 months and fine him $500 plus penalty assessment. Because John agreed to the breath test, the six months imposed by DOS and the 12 months imposed by the court will run concurrently. In addition, John will have to complete IDCMP programming. [Learn more about DUI penalties.]

Analysis

In every criminal and/or motor vehicle case, there are going to be certain constitutional and/or factual defenses. In this case, John may have several constitutional defenses. For example, when John rolled his window down in response to the officer, an unlawful seizure may have occurred. At the time of the seizure, the officer may not have had a reasonable and articulable reason to believe John had committed a crime or motor vehicle offense. Therefore, any evidence obtained thereafter would be suppressed, and the charge dismissed.

Even if the officer was justified when he initially seized John, the officer would only be entitled to ask a limited number of questions to either confirm or dispel his suspicion for the initial stop. It is not against the law to drink and drive. However, it is against the law to drive while impaired by alcohol or to have a blood alcohol content of .08 or greater. Because this officer did not observe any problems with the operation of the vehicle or observe any other of the common signs of impairment — disheveled appearance, bloodshot eyes, slurred speech — the officer may not have been justified in expanding the scope of his investigation to include field sobriety tests.

Even if the officer was justified, the officer may not have had probable cause to arrest. Because John had no problem driving, did not initially exhibit bloodshot eyes or slurred speech, and because he did relatively well on the field sobriety tests (FSTs), there may not have been probable cause to arrest. This is especially true in light of testimony given by the arresting officer at John's ALS hearing, which revealed certain errors in conducting the FSTs. According to the NHTSA training manual itself, the validity of the FSTs is compromised if the officer deviates from established protocols.

In addition to potential constitutional defenses, based on both the United States and New Hampshire Constitutions, John has some potential factual defenses. For example, according to dispatch logs obtained in discovery, John was stopped at approximately 9:30 p.m. According to the Intoxilyzer 5000 test ticket, John's first breath sample was obtained after 1:00 a.m. The state must prove that John was either impaired at the time of the incident or had a blood alcohol content of .08 or greater at the time of operation. The passage of approximately 3.5 hours between the time of operation and the breath test creates a serious problem for the state.

It takes up to 90 minutes for alcohol to be absorbed into the blood stream, and blood alcohol content can continue to rise for quite some time after consumption. In addition, the average person can metabolize one drink per hour. Therefore, John's blood alcohol content could have been much higher at the time of operation and on its way down when he blew (a proposition inconsistent with the physical testing and observations in this case). Or his blood alcohol content could have been much lower than the legal limit at the time John was driving and on its way up at the time John took the test (a proposition more consistent with the other evidence in the case).

In addition to the passage of time between operation and breath test, the state may have a problem with the required 20 minute observation period. In order for a valid test, the breath machine operator must observe the individual for 20 minutes before the individual actually blows into the machine. During the ALS hearing, the trooper admits that he did not observe John while he was setting the breath machine up for the test. Moreover, based on the trooper's ALS testimony, he could not have been in a position to have heard John or observed him with peripheral vision. The 20 minute observation period, therefore, may have been inadequate. The .10 blood alcohol result might be inadmissible, making the state's case that much more difficult to prove.

Summary

In conclusion, in any DWI case there many issues that can be explored which may result in penalties and/or charges being reduced or in an outright acquittal. We hope this hypothetical has bettered your understanding of the legal process surrounding DWI in New Hampshire. We encourage you to contact a qualified DWI attorney now. Do not delay or you may lose certain important rights. [Learn more about DUI cases I have handled.]