Upon arrest for DWI, the driver is faced with a difficult decision: whether to blow into an old box, placing his faith, freedom and right to drive in the precision and accuracy of an old box with a rubber hose attached to it. Or the driver could refuse and face a potential license suspension. If the driver asks the police officer any questions about the choice, the police are trained to say that they can’t help them, or they refer the driver to a single-spaced, 8 point font explanation that doesn’t really tell the driver what to do even if they manage to read it. Here is the law:

RSA 265-A:2 (2008)

265-A:2 Driving or Operating Under Influence of Drugs or Liquor; Driving or Operating With Excess Alcohol Concentration.

I. No person shall drive or attempt to drive a vehicle upon any way or operate or attempt to operate an OHRV:

(a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or

(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.

II. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug or drugs, or while such person has an alcohol concentration of 0.08 or more or in the case of persons under the age of 21, 0.02 or more.

So, if you get arrested for DWI in New Hampshire the state can prove your guilt one of two ways: either that you’re drunk or that the old gray box said your breath alcohol concentration was over the legal number, whether you’re drunk or not. If you blow, the state gets two chances to prove you guilty. If you refuse, they get only one chance, and they have to prove beyond a reasonable doubt that you were actually intoxicated. If you blow, you’re guilty if you cooperate under this legislative scheme. The state will throw both charges against the wall and see if one can stick.

Once the driver makes the ill-fated decision to blow, the police will add a second DWI charge against the driver: the DWI “per se charge”. This is Latin for “by itself”. Choose wisely whether you will make it easier for the state to convict you when you decided whether to blow into the breath testing hose.

Have a safe weekend,

Mark Stevens
5 Manor Parkway
Salem, NH 03079
603-893-0074

http://www.byebyedwi.com
http://www.byebyedwi.blogspot.com

< http://www.comcast.net/articles/news-general/20090102/DUI.Legislation.Ignition.Locks/>

Beginning on January 1, 2009, motorists convicted of a first-time DWI or DUI in Alaska, Colorado, Illinois, Nebraska, and Washington will be required to put an ignition interlock device on their cars. An ignition interlock device is a small, portable breath test machine that is integrated into a car’s ignition system. A driver has to blow into the machine before starting the car, and again periodically while the car is running. If the machine reads a higher alcohol content than the preset cutoff, then the machine will interrupt the ignition and kill the motor.

Drivers in these states, upon conviction for DWI or DUI will have to have these devices installed, even for a first offense, and without regard to their BAC at the time of their arrest. They join the ranks of such states as New Mexico, Arizona, and Louisiana in requiring first-time DWI drivers to install interlock devices. Most of the other 50 states allow judges to exercise discretion in installing the device, and/or require it only for repeat offenders or for those who were well over the legal limit.

Texas mandates interlock devices for repeat offenders whose most recent DWI conviction happened within 5 years of the new DWI offense, but permits judges to use their discretion for first-time offenders and/or those whose prior DWI convictions were remote in time. If required, these drivers must keep such a device on their vehicles for one year after their license is reinstated following the mandatory suspension. Tex. Penal Code § 49.09(h).

MADD, which has long pushed for these and other tougher measures for DWI drivers, recognizes that these devices are, in the words of David Malham of the Illinois Chapter, “amazingly inconvenient.” In Illinois, those who are required to place the interlock device on their cars will pay about $80 to install the device, an $80 monthly rental fee, and a $30 monthly surcharge to the State. MADD justifies this result by pointing out that 1 in 3 DWI defendants have a prior DWI or DUI conviction. But if repeat offenders are the concern, wouldn’t it make more sense to require interlocks for repeat offenders? Is it not obvious that, given this statistic, 2 out of 3 DWI defendants have never been convicted of DWI before?

In fairness, it should be pointed out that these device requirements are not permanent, and the requirements in at least Washington, Illinois, and Colorado are attached directly to the automatic license suspension period upon conviction. In Illinois and Colorado, the requirement is a condition to obtaining a provisional license during the suspension period: no interlock, no driving privileges (and, in Colorado, a longer suspension period). In Washington, accepting an interlock device actually lifts the suspension, so long as the interlock is kept for the mandated period; if the interlock is refused by the defendant, the license suspension will take effect.

In Texas, we call this provisional license an Occupational License, and many judges do routinely require an interlock device as a condition, at least for the first 6 or 9 months to keep tabs on a defendant. Judges are required to condition the occupational license on getting an interlock device for certain repeat offenders. But that matter is left to the judge’s discretion for first offenders. Why? Because judges are generally in a better position than legislators to determine the appropriate safeguards that a specific defendant needs, or that society needs against a particular defendant. See Tex. Transp. Code § 521.246.

Says Mr. Malham about the limited scope of the Illinois law (during the license suspension period only), “Perfection can’t be the enemy of the good.” Was he hoping for a lifetime requirement? To hear the CEO of MADD, Chuck Hurley, talk, it seems that’s exactly what they want: “Illinois has excellent law enforcement. But the judicial system leaks like a sieve. This law will change the catch and release system to one where people are at least caught and tagged.” Tagged? Tagged with a $110/month device for the rest of one’s life, because of one mistake made on one night, and without regard for how serious the individual’s misjudgment was—even though it’s a misdemeanor in every state in the Union. If that doesn’t scream justice, I don’t know what does.

Jordan Lewis

Houston, Texas Criminal Lawyer

Jordan Lewis is a prominent Houston, Texas DWI attorney. Please contact Mr. Lewis at 713-222-0400 if you have any questions regarding your DWI arrest.

The ignition interlocks prevent engines from starting until drivers blow into the alcohol detectors to prove they’re sober.

Alaska, Colorado, Illinois, Nebraska and Washington state began Jan. 1 requiring the devices on all motorists convicted of first-time drunken driving. South Carolina began Thursday requiring them for repeat offenders.

Mothers Against Drunk Driving has been conducting a nationwide campaign to mandate ignition locks for anyone convicted of drunken driving, claiming doing so would save thousands of lives. But critics say interlocks could lead to measures that restrict alcohol policies too much.

Users must pay for the fist-sized devices, which in Illinois cost around $80 to install on dashboards and $80 a month to rent; there’s also a $30 monthly state fee. They also require periodic retesting while the car is running.

“It’s amazingly inconvenient,” said David Malham, of the Illinois chapter of MADD. “But the flip side of the inconvenience is death.”

Other states with similar laws include New Mexico, Arizona and Louisiana. Most other states give judges the option of forcing convicted drunk drivers to use the devices. In practice though, they are rarely ordered unless laws mandate them, according to MADD.

Until now, that’s been true in Illinois, said MADD national CEO Chuck Hurley.

“Illinois has excellent law enforcement,” he said. “But the judicial system leaks like a sieve. This law will change the catch and release system to one where people are at least caught and tagged.”

In Illinois, the interlocks are mandated only for the five to 11 months licenses are suspended with a first DUI. Drivers can opt not to install them, but then would be banned from driving at all during the suspension period.

Motorists in Colorado get a similar choice — install the devices or get a longer suspension.

The law taking effect in Washington state actually relaxes penalties on drunk drivers, allowing them to avoid a previously mandatory license suspension by getting an interlock. The bill’s author, Rep. Roger Goodman, said too many motorists were driving with suspended licenses.

Motorists could try skirt the devices by, say, having someone else blow into detector or driving someone else’s car. But if caught trying to circumvent the interlocks, they could go to jail.

Within a year, up to 30,000 first-time offenders in Illinois could be using them, state officials estimate.

New Mexico was the first state to mandate the devices in 2005. Since then, according to MADD, that state has seen its drunk-driving deaths fall 20 percent.

Hurley said other states could see the same percentage decline within a few years.

DUI deaths nationally have plummeted to around 15,000 from around 30,000 annually in the early 1980s.

Malham, who supports the technology, said in the future even more advanced technology will enable cars to effectively sniff car cabins, scan faces and eyes of drivers or even test sweat on steering wheels to assess sobriety before engines start.

Not everyone is as enthusiastic.

One of the staunchest critics of interlock laws for first-time offenders is the Washington, D.C.-based American Beverage Institute, a trade association representing restaurants and retailers.

ABI managing director Sarah Longwell said the group backs interlock laws targeting repeat offenders and those arrested with high blood-alcohol levels.

But she said laws advocated by MADD don’t allow judges to distinguish between those who have a few drinks and go just over the 0.08 blood-alcohol legal limit and those who go way over.

“We want sensible alcohol policies,” she said. “We want 10 people to be able to come in and have one drink and not one person to come in and have 10.”

She said current interlock laws could lead to more draconian measures.

“We foresee is a country in which you’re no longer able to have a glass of wine, drink a beer at a ball game or enjoy a champagne toast at a wedding,” she said. “There will be a de facto zero tolerance policy imposed on people by their cars.”

She argued that MADD puts too much emphasis on links between alcohol and traffic deaths, giving too little regard to the roles excessive speed and driver cell-phone use in deadly accidents.

Proponents of interlock laws say studies back their approach. They cite a 2008 study by the Pacific Institute for Research and Evaluation that found interlock devices in New Mexico helped decrease repeat offenses by approximately two-thirds.

MADD also points to figures showing one-third of all drunk drivers have a prior DUI conviction.

The American Beverage Institute questions studies cited by advocates, saying they other factors, like education programs, also account for the declines.

Malham concedes Illinois’ new law isn’t perfect. For one, it only applies to drivers during relatively short license-suspension periods.

“But perfection can’t be the enemy of the good, to quote (18th century philosopher) Voltaire,” he said. “I’d like to see more teeth in the law in the future. But this is a start.”

It is amazing the lengths to which some people will go to keep their beer cold.

I wonder if the cop said, “Good evening sir. May I see your license, registration, and proof of insurance? Do you know why I pulled you over? Please step out of your Zamboni, sir.”

A man is facing drunken driving charges..for trying to drive an ice smoothing machine inside a Portland, Maine civic center.

Police responding to an alarm at the Cumberland County Civic Center found Adam Patterson riding an idling Zamboni. The 22-year-old had crashed it into a wall near a storage area. Authorities say he

had also tried to operate two fork lifts.

The civic center is home to the Portland Pirates hockey team.

A Waco man who crashed his car into the back of a police car is now in the McLennan County jail charged with DWI.

It happened at the intersection of West Waco Drive and North Valley Mills just after midnight.

Officers say 23-year old Martin Flores Jr. crashed his car into the back of the police cruiser stopped in traffic at the intersection.

No one was injured. Flores’ arrest was the first in Waco for the year.

Mr. Barkley could have done well to follow the advice I’ve previously posted. In California, field sobriety tests are voluntary. You don’t have to submit to anything except an official chemical test to determine your blood alcohol level if you are arrested for DUI. You can decline to answer questions. Even though the police do not necessarily have to read you your Miranda rights during the DUI investigation, it doesn’t mean you have to incriminate yourself.

And I’m sure he regrets it now, but . . . trying to bribe a police employee to get you out of criminal charges? Not highly recommended. The full story on TMZ is here.

It offers a lesson for DWI defendants. The information contained in a police report may very greatly from the evidence at trial. Cross examination is still the best way to test the veracity of evidence.

What is a directed verdict?
In general, at trial after the State rests (finishes presenting their case in chief) the defense will move for a directed verdict. The defense is asking the judge to find the defendant not guilty because as a matter of law the State has failed to produce any evidence on an element of the case. I’ve seen and made dozens of directed verdict motions. They are routinely denied.

Why was mine granted?
I made a motion to suppress all the State’s evidence during trial. The judge granted that motion. That meant that the State had not put on any evidence of DWI. Therefore, a directed verdict was required.

Why was my motion to suppress granted?
The arrest report listed one set of facts regarding the initial traffic stop. At trial, the officer testified to a complete different reason for the traffic stop. However, that reason was factually impossible. It couldn’t have happened. Evidence from an illegal traffic stop can’t be used against the defendant (38.23). Ergo, all the State’s evidence vanished.

Why did I have a bench trial instead of a jury trial?
The decision to have a judge or jury trial is always up to the defendant. I provide advise of what to do. But if the client and I disagree, it’s his/her decision.

Going into trial I thought there was going to be a legal defense of necessity. DWI necessity is a strange animal. I thought allowing the judge to rule on the facts and the law would be most beneficial in that situation. However, with the directed verdict the necessity issue was never raised.

In Florida, police may take blood, breath, or urine under implied consent rules. If an officer wants to test your blood after you were involved in an accident, he must have probable cause to believe you have been drinking. In Arizona, however, the standards are significantly more relaxed. The police officer chooses the method and increasingly, even small police forces are electing to draw blood rather than rely on breathalyzers.

Blood evidence is considered to be more reliable than breath testing. There are many flaws with the breathalyzers used in Broward County and throughout Florida. Blood testing is subject to fewer variables, like the secret software inside breathalyzers, which even the government agencies employing the devices do not have access to.

Blood testing by local police officers in Miami-Dade, Broward, and Palm Beach Counties still sounds disturbing. Inserting a needle into someone poses many more health risks, such as exposure to disease for the officer or unsafe testing conditions for the DUI suspect. In Arizona, regular police officers are authorized to perform the test following a short course in phlebotomy (also known as venipuncture, the practice of drawing blood).

Blood drawing by police officers raises some serious concerns. For example, what if the encounter between the DUI suspect and the police officer was confrontational leading up to the blood draw? Collecting blood is substantially more invasive than blowing into a breathalyzer . In certain situations, the blood may be drawn forcibly at the scene. In Florida, procedures seem more reasonable. Although the implied consent law covers blood and urine in addition to breath testing, all blood draws must be performed by a physician, a licensed nurse, or other qualified medical professional, such as a phlebotomist/lab technician. In short, police in Broward County may not insert needles into you when they pull you over because you were weaving on the road. Instead, you will likely be tested at a local hospital. Police officers in Arizona, however, are training to draw blood samples on one another. Fort Lauderdale DUI attorney William Moore believes this disturbing trend is probably the new wave in DUI arrests, but hopes that the Florida legislature will stay sensible and keep needles in the hands of the medical community and not law enforcement.

Fort Lauderdale DUI attorney William Moore is a former prosecutor and public defender. If you have been charged with DUI in south Florida, contact William Moore, P.A., which has an experienced Fort Lauderdale DUI lawyer with offices in Miami-Dade, Broward, and Palm Beach Counties.

This article should be used for informational purposes only and should not be construed as legal advice.

Article contributed by Mallory Shipman, Attorney-at-Law.