Wednesday, February 26, 2014

Defending Your DWI Charge - Odor Of Alcohol Laws in NH

Defending Your DWI Charge Odor Of Alcohol

Police Report: “I approached the vehicle and immediately detected a strong odor of alcohol emanating from the operator.”

Some things in life are guaranteed: the sun will rise, taxes are due and nearly every DWI police report in NH will contain a damning claim by the arresting officer that he/she “smelled the odor of an alcoholic beverage” either coming from the interior of a person’s vehicle or directly from the person herself.   Yes indeed, death, taxes and your DWI police report repeatedly echoing the phrase “odor of alcohol” are a virtual certainty. 

At first blush this “odor of alcohol” claim seems like powerful evidence of intoxication and guilt.  One may conclude (erroneously) that “hey, if he smells like a brewery then he is probably intoxicated.”  The reality, however, is that the phrase “odor of alcohol” is junk – the phrase tells us nothing about a person’s sobriety and fitness to operate a motor vehicle.

Ethyl Alcohol has no smell.  What the officer smells is the aroma - the flavoring that gives the beverage its taste.  The strongest smelling beverages usually contain the least amount of alcohol, such as beer and wine.  Some very strong beverages, such as Scotch and Vodka, produce a light, faint smell.
 What if I Drink Non - Alcoholic Beer?

Consider “Near Beer” – after guzzling a “Near Beer” you will likely smell like a brewery.  However, despite the strong odor wafting from your gullet, you have absolutely zero alcohol in your system. 

An odor of alcohol, standing alone, does not provide probable cause to make a DWI arrest. Remember, the law prohibits impaired driving, not driving after having consumed a drink. 

“The mere odor of alcohol about a driver’s person….maybe indicia of alcohol ingestion, but it is no more a probable indication of intoxication than eating a meal is of gluttony.”  Saucier v. State, 869 P. 2d 483 (1994)

We make sure the jury or judge understands that there is no correlation between an odor of an alcoholic beverage and the amount of alcohol you have consumed.   An odor of an alcoholic beverage does not tell us what type of alcohol you consumed (beer, wine, mixed drink), how much alcohol was consumed, the time the alcohol was consumed, over what duration the alcohol was consumed and in what quantity it was consumed.


You are NOT required to answer this question.  Politely tell the officer that you are declining his invitation to answer this potentially incriminating question and you wish to have an attorney with you before answering any further questions. 

By Law Office of Shepherd and Osborne


Thursday, February 13, 2014

When Do The Police Need To Read Miranda Warnings?

They Never Read Me My Rights!

…And the police didn’t even bother to read me my Miranda rights!!!  This statement is echoed numerous times thought our office when meeting with clients.  The following is a brief Miranda outline:
When does Miranda apply?

Miranda rights apply when a person is in custody and subjected to interrogation. 

 What do you mean “in custody?”

A person is considered to be in custody when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.   If you are placed under arrest you are “in custody” for Miranda purposes.

However, if there is no formal arrest, the issue becomes a little murky.  When formal arrest is lacking “the court must determine whether [your] freedom of movement was sufficiently curtailed by considering how a reasonable person in [your] position would have understood the situation.”  The court will consider whether the suspect was familiar with his surroundings, the number of police officers present, if the suspect was physically restrained and, importantly, the interview’s duration and character.  Routine traffic stops typically do not invoke Miranda safeguards.

What do you mean by “interrogation?”

Interrogation is asking point-blank questions.  However, interrogation also includes “words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.”  

For example, you’re stopped for speeding and the police notice a severed head rolling around the inside of your car.  Predictably, you are arrested and hauled down to the police station.   The police read you Miranda rights.  Smartly, you reply that you wish to remain silent and speak to my attorney.  The police officer says “fine,  but if you want to be a man and tell us where the rest of the body parts are so the victim’s family can rest… let us know”   This statement “would be reasonably likely to elicit a response” and is considered improper. Exercising your Fifth Amendment Rights and understanding the Miranda Waning Laws can protect you and allow you time to have your attorney present at time of questioning.

What warnings must be given? 
  • You have the right to remain silent; 
  • Anything you say can and will be used against you in court;
  • You have a right to consult with a lawyer and have that lawyer present during interrogation; 
  • If you cannot afford a lawyer one will be appointed.
What now?
If you are facing a situation wherein the police are looking to speak with you, politely decline.  Tell the officer that you are exercising your right to remain silent and you wish to have a lawyer present before proceeding any further.

By Law Office of Shepherd and Osborne


Thursday, February 6, 2014

Can I Refuse a Police Search on Me or My Car? NH Search and Seizure Laws

Should I consent to a search when the police ask?

One of the most frustrating issues criminal defense attorneys face is when a client consents to an otherwise unwarranted search of her vehicle, apartment, house or any area where the client has an expectation of privacy.  Often times the law enforcement officer is simply on a “fishing expedition” - you look young, nervous, timid, and guilty, therefore, the police officer, playing his hunch, asks for your “consent” to rummage about your vehicle, house or jacket pockets.  Your slight hesitation will be met with the following, “We can do this the easy way or hard way, and we can sit here all night while I call in a K-9 to search your vehicle or you can simply consent.”    Or, “if you have nothing to hide why don’t you just consent to a search?’  You have just fallen prey to manipulative police tactics.

<img title='Being Frisked' alt='Searched By Police' src='' >

What’s the law on consent searches?

Both the Federal and New Hampshire Constitutions protect you from unreasonable searches and seizures from the State and its agents.  Evidence obtained in violation of your 4th Amendment rights may be excluded from trial depending upon the facts and circumstances surrounding your purported consent.  A consent search is an exception to the requirement that the police obtain a warrant.  The State bears the burden of proving that your consent was given “freely, voluntarily and knowingly.” 

What if I didn’t really “consent” to the search?

Sometimes consent is subject to a legal challenge when the police expand the scope of a stop.  For example, the police pull you over for speeding and issue a ticket.  However, prior to letting you drive off, the officer asks for consent to search your car, usually looking for a chance to nab you on a drug transportation charge.  You consent and, eventually, the officer pulls a baggie of marijuana from under the passenger seat.  A good argument can be made that the police impermissibly expanded the scope of the traffic stop by asking for consent to search when you should have been on your way home.

As addressed above, sometimes the purported consent is not “freely” and “voluntarily” given as when there are threats of obtaining warrants at mid-night, bringing in a pack of angry K-9 dogs or towing your car back to the station. 

What to know

You do not need to consent to an officer’s request to search you, your automobile or your home.  You may politely refuse until presented with a search warrant.  If you are in your car, politely refuse the request and ask if you may simply be on your way.   If the officer insists that he is going to search a particular area, do not resist and/or act belligerent.  Rather, stand aside as this is a battle that will be fought in court. If arrested and contact a good New Hampshire criminal lawyer.

By Justin Shepherd


Saturday, February 1, 2014

N.H. House Passes 1st-Offense DWI Bill – Temporary License To Drive After a DUI

CONCORD — On a voice vote Bill HB 496 was passed by the House of Representatives on Wednesday 1/29/14 that will authorize first-time DWI offenders in NH to obtain a limited license (if approved) so they are able drive to work, to rehabilitation or to receive medical treatment.

Under the new law (HB 496), in order to obtain a temporary license, offenders will be required to pay $50.00 for an application fee and also to petition a judge. If approved, they will be required have to (at their own expense) have an enhanced technology ignition interlock device installed in their vehicle.

This temporary driving privilege will allow offenders to avoid any loss of work due to lack of transportation. This privilege will require following a strict guidelines of the new law. The Criminal Justice and Public Safety Committee is recommended the bill should be passed with amendment, 16-1.
Offenders who are found guilty of violating this privilege will be treated as if they were driving with a revoked license and charged accordingly.

Last week, Pat Sullivan, executive director of the New Hampshire Association of Chiefs of Police, said his organization is against the bill because it would be cumbersome for police to enforce a law that would allow some people to drive some of the time. Sullivan said the state needs tougher DWI laws in NH, not weaker ones, especially considering the number of fatalities New Hampshire had on our roadways last year.
Fatal crashes in New Hampshire reached 133 in 2013. This was the highest reported in five years. According to the New Hampshire Driving Toward Zero coalition, approximately 37 percent of all fatal crashes in NH are alcohol related.

Former police Chief John Tholl in Dalton had plans to propose the bill before he lost his re-election bid in 2012. Tholl says he has seen a dramatic increase in the interlock devices technology and if used correctly can significantly reduce DWI’s in the state.

The bill was proposed by Rep. Steve Shurtleff, D-Penacook, who was named the 2013 legislative champion by Mothers Against Drunk Driving of New Hampshire. MADD is for HB 496 because it would expand the use of ignition interlocks for convicted drunk drivers.

According to the CDC (Centers for Disease Control and Prevention), these ignition interlock devices help DWI offenders from becoming repeat offenders by 67 percent in relation to drivers with suspended licenses. Interlock devices are able to use real time to email a picture of the person blowing into it, their location and the results of the test to a server which notifies state police instantly if anything is out of parameter.

By Justin Shepherd