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If you are arrested, you must do everything you can to protect your rights.  Any attempt you make to explain the situation, and anything you do that can later become part of the testimony used to convict you, will only make your case more difficult to defend.  The United States Constitution guarantees you the right to be free from self-incrimination. That is why, when the police officer arrests you, they tell you that you have the right to remain silent. Exercise that right!

Once you have been read your Miranda rights, you must inform the officer of your intent to remain silent, but even if you forgot and began talking, you can stop at any time without it being used against you. Do realize that your right to remain silent does not prevent you from having to cooperate with the officer and provide your name, identification, proof of insurance, etc., but you do NOT have to answer questions about where you were, what you were doing, how many drinks you had, or anything else related to your arrest.

Unless you are in an accident, injure someone or are stopped at a sobriety roadblock check point, you will most likely be stopped based on an officer’s reasonable suspicion that you are driving while intoxicated or for another motor vehicle violation.  Reasonable suspicion is less strict than probable cause, which is required to arrest you. New Hampshire’s exact requirements for probable cause have not come through the courts and remain ill-defined, but cases have been overturned for lack of probable cause. In court, the police officer may be required to testify about what gave them probable cause to arrest you, which may include your physical appearance at the time of the traffic stop (having bloodshot eyes, slurring your speech, weaving or being unable to control your gross motor functions), the odor of alcohol, evidence of alcohol containers visible in your vehicle, or your inability to pass sobriety field tests.

Remaining silent is critical to preventing the officer from obtaining any evidence that may later be used in court to incriminate you. While you should be polite and cooperative about providing your identification and registration, the officer will be asking you questions, not to hear the answers, but to identify if you are slurring your speech or have the smell of alcohol on your breath.

Trying to explain what you were doing, where you were going, or how much you had or had not been drinking will NOT help you avoid arrest.  Remaining calm and polite, not fumbling around for your information, and speaking clearly when you must speak are important details. Keep your answers short and to the point; do not become belligerent.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.

If a police officer directs you to pull over by either activating his emergency lights or motioning to you, you must follow his directions. However, if an officer is simply following you, you do not have to pull over. It is not against the law to share road space with a police car.

People get nervous when they see an officer and sometimes their first instinct is to pull over, even without be required to do so. Resist the urge to pull over. Just do not do it. You are completely within your rights as a citizen to continue driving (making sure you are obeying the rules of the road and thereby not giving the officer any reason to pull you over) to your destination unless the officer flashes his lights or motions for you to pull over.

You are protected to a great degree by the Fourth Amendment to the United States Constitution.  The United States Supreme Court in Terry v. Ohio 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) created a guideline called the “Terry stop”.  The United States Supreme Court said an officer cannot stop you unless they have legal justification to do so (i.e., you run a red light, weave in and out of your lane, or do something else that causes suspicion).

However, an officer has the right to pull over a vehicle whose registered owner has a suspended license, as long as the officer believes that (1) the registered owner is driving or (2) “observes nothing to indicate that the driver is not the owner…”
Even if all you do is pull into a parking lot in an attempt to avoid the officer, the officer can then follow you into the parking lot, where you have voluntarily come to a stop, and confront you in an effort to determine if you are violating the law without having to have any reasonable suspicion. If you continue driving, however, and the officer is forced to put on his siren or flashing lights in order to pull you over, then the officer has to prove that you have done something worthy of being detained.

If the officer cannot prove that he had reasonable suspicion that you were committing or about to commit a crime which caused him or her to pull you over, your entire case can potentially be thrown out of court.

Stay tuned for Part 2: Clues to Inebriation

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.

To be charged with aggravated DWI, you must be traveling more than 30 miles per hour faster than the posted speed limit, cause an accident resulting in bodily injury, attempt to elude police, have a BAC of greater than 0.16, or have a minor under the age of 16 in the vehicle with you.

In a recent case before the Supreme Court of New Hampshire, a defendant attempted to have the aggravated DWI conviction overturned. He was charged with aggravated DWI for being under the influence of alcohol and attempting to elude law enforcement. His argument was that the state failed to prove a scienter (intent) requirement – proof that the defendant purposefully evaded police. The Supreme Court upheld the conviction, however, and determined that scienter (intent) is not a requirement of aggravated DWI; in other words, the state does not have to prove that you intentionally evaded police or that you had a “culpable mindset.”

In addition to DWI and Aggravated DWI charges, you may also be charged with Felony Aggravated DWI if you have prior DWI convictions or subsequent offenses. If you are arrested for any DWI charge, you will be required to appear in court, where the state may decide to charge you with operating under the influence of alcohol and/or operating with an alcohol concentration at or over the legal limit. Minimum penalties for a DWI conviction include a fine of at least $500, a license suspension of at least nine months, and a required completion of an impaired driver intervention program.

Operating under the influence of alcohol and operating with an alcohol concentration at or over the legal limit are two different avenues by which the state can prove your guilt and gain a conviction. In one method, the prosecutor needs to prove beyond a reasonable doubt that you were operating a vehicle or an off-highway recreational vehicle (OHRV), that you were on a New Hampshire “way,” and that you were under the influence of an intoxicating substance.  While an alcohol concentration test can be introduced, it is NOT required to obtain a conviction.

The second way the prosecutor can obtain a conviction is by proving that you had an alcohol concentration at or above the legal limit.  If the prosecutor can prove that your alcohol concentration level was above the legal limit of 0.08 percent, he can obtain a conviction whether or not you were actually impaired by your consumption.  The way they prove this type of conviction is by means of a breathalyzer test administered during the traffic stop, or by a subsequent blood or urine analysis.

If you already have a DWI conviction, and you are driving on a probationary license, having an alcohol concentration above the legal limit is a “per se” offense, meaning the state does not have to prove that you were impaired; the test alone can serve as evidence of your guilt.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.