The Right to Remain Silent

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.

Avoiding a DWI Arrest, Part 1: Don’t Pull Over

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.

DWI Defined, Part 1: How does New Hampshire define Drunk Driving?

If you are charged with drunk driving in the state of New Hampshire, you are being accused of driving or attempting to drive a motorized vehicle (or boat) while under the influence of alcohol. In New Hampshire, this is referred to as DWI (driving while intoxicated). While there are legal limits regarding alcohol concentration levels, New Hampshire courts have found that “impairment to any degree” is cause for arrest.

Since 1994, the New Hampshire legal limit (Per Se limit) of alcohol concentration for drivers aged 21 years and older has been 0.08 percent. If the driver is under the age of 21 (it is not legal to drink under the age of 21 in New Hampshire), the limit is reduced to 0.02 percent. If you are operating a commercial vehicle, you are not allowed to have an alcohol concentration of 0.04 percent or more. As you can see, underage drinkers are held to the strictest standards because New Hampshire has a zero-tolerance policy for underage drinkers.

Driving while intoxicated is a “strict liability” offense in New Hampshire, meaning that just committing the offense is enough to be guilty, even if you do not appear to be impaired or actually endanger anyone with your driving. It requires no mens rea, or no actual intent, to commit a crime.

Something else that is extremely important to understand about New Hampshire law is that if your alcohol concentration is at or above the legal limit of 0.08 percent for a non-commercial driver over the age of 21, the alcohol concentration is considered “prima facie” evidence of the traditional or aggravated DWI offense, BUT if your alcohol level is anywhere between 0.03 percent and 0.079 percent, your alcohol concentration can still be used against you during your trial as relevant evidence of impairment.

If you are arrested for a traditional DWI, there are two different statutes concerning your arrest. You can either be arrested for driving while intoxicated or you can be arrested for the more serious crime of aggravated DWI, which carries stiffer fines, penalties and potential prison time.

Stay tuned for Part 2: DWI Charges in New Hampshire

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.

NH Looks Into Updating Breath Test Laws

The New Hampshire Department of Safety recently asked the State Legislature to drop a requirement for DUI/DWI suspects. As it currently stands, New Hampshire law requires all suspects in DWI arrests the opportunity to receive an independent sample of their breath test in addition to the sample taken by law enforcement. With this individual sample, suspects can obtain their individual lab results and offer them as evidence in court.

Unfortunately, there are two major problems with this proposition. First, the law protects DUI suspects by providing them with a way to obtain independent lab results. Second, the technology currently used by New Hampshire law enforcement is outdated. Currently, New Hampshire law enforcement depends on the Intoxilyzer 5000 to preserve a breath sample – a machine whose technology is more than 20 years old.

The Intoxylizer is the only machine on the market that can preserve breath samples. Unfortunately, the quality of breath preservation has not advanced at the same rate as lab tests, meaning that samples obtained at the scene with current technology often present very different results than those obtained from the Intoxilyzer. To demonstrate the degree to which the results differ, in 2008 approximately 250 cases were thrown out due to the low correlation of the Intoxilyzer breath test with the independent lab tests.

Despite differing correlations in breath results, the manufacturer of the Intoxilyzer, CMI, Inc., will not release its source code due to its own proprietary interest. Their conversion ratio from breath to blood is unknown and outdated. Relying completely on a machine that has been shown to have a large percentage of discrepancies is extremely worrisome for individuals who are accused of drunk driving.

Although the defendant’s independent breath tests receive the same degree of consideration as those obtained by police, not all suspects use this to their advantage. Only approximately 15% of DWI defendants actually pursued independent breath tests last year.

It is in the state’s best interest to continue offering individuals the opportunity for an independent evaluation. Due to the inconsistently of state equipment, stripping individuals of this right would surely lead to the wrongful conviction of numerous individuals.