NH Supreme Court - Right against Self-Incrimination - Shield Against Elevated Penalties at DWI Sentencing

NH Supreme Court: Right Against Self-Incrimination Applies at Sentencing Hearings, Not Just Trials.

Here's a familiar scenario: Prosecutor thinks DWI defendant has no prior DWI convictions.

Client, and attorney through attorney-client privilege, know there are prior convictions in another State.

Judge, at sentencing hearing, asks client: "Before I impose sentence, I will ask you: Do you have any prior convictions for DWI?"

A skilled lawyer will be able to deflect this question, or refuse to answer it outright, under the authority of State v. Burgess, an appeal briefed and argued by Ted Lothstein. In Burgess, the Court squarely held that the right against self-incrimination applies not just at trial, but at a sentencing hearing. The defendant retains the right to remain silent, and the sentencing judge may not draw an adverse inference from silence (e.g., if accused had nothing to hide, he would not need to remain silent).

Thus, under Burgess, the judge has no right to ask that question, the client should not answer, and the lawyer should protect his or her client.