If the court or DMV suspends my license, can I get a hardship license to drive to work?

In most first offense DWI cases, the practical answer is no. It’s more complicated than that, but the bottom line is that the limited licenses to drive to work are 1) Not available during the administrative license suspension (ALS), which is usually 6 months, and 2) Not available for a person who has a prior DWI conviction, even if was from decades ago, and 3) Not available for an out-of-state resident, and 4) Even for the true first offenders who need to keep their jobs to provide for their families, limited licenses are  only available for 45 days of the typical court-ordered 90 day suspension. And the applicant has to install an ignition interlock on all vehicles registered to the applicant or used by the applicant on a regular basis for a period of one year and 45 days. Who would pay all that money, and endure all that hassle, to be able to drive to and from work for 45 days? In our experience,  no one. However, for a first offender in a serious DWI who gets a suspension of much longer than 90 days, a limited license can be a lifesaver.

The Arresting Officer did not read me my “Miranda” rights. Do I win?

You might get a post-arrest statement suppressed from evidence, but failure to read Miranda rights is not itself a violation of the State or Federal Constitution. This is possibly the most commonly asked question in DWI consultations. Why? Probably because many NH police officers and state troopers do not read Miranda rights at all when making DWI arrests. 

Why would well-trained officers choose not to read Miranda rights? First, because the law says they don’t have to unless they want to ask you questions that are the functional equivalent of “interrogation” - questions designed to elicit an incriminating response. And most officers are trained to ask the relevant questions before making the decision to arrest - Where are you coming from? Where are you headed? How much have you had to drink? What beverages did you drink? Did you use any illegal or prescription drugs? Did you use cannabis? Do you have any in your car? Do you have any injuries or disabilities or medical conditions that might affect your ability to perform balance and coordination tests? Do you feel like you’re safe to drive right now?  

Since the officers ask these questions before arrest, many employ the strategy of refraining from reading Miranda rights post-arrest. Why? Many people under arrest tend to be talkative, whether due to nervousness, or consumption of “social lubricants” like alcohol, or just because of discomfort with long periods of silence. Some people are verbally abusive to the officer. The law says that everything said by a person under arrest can be used against the person at trial, unless the officer solicited the information with a question or comment. Reading Miranda rights tends to remind people that it’s in their best interest to shut up. 

And so now you know - police officers don’t want you to shut up. They want you to keep talking, so the OFFICER exercises the right to remain silent! The officer asks no questions, reads no Miranda rights, and happily writes down any comments made by the arrestee that might incriminate them at trial. The takeaway of course is that the best strategy for a person under arrest is the same as the strategy employed by the officers - exercise the right to remain silent. Be polite, be respectful, but otherwise… shut up!

I’m being prosecuted for driving under the influence. The only substance I consumed was a prescription drug for which I have a valid prescription. How can they prosecute me when it wasn’t an illegal substance, I have a prescription, and I was using it as prescribed?

The answer, unfortunately, is that a prescription is not a license to drive under the influence of the prescription drug. Some prescription drugs have significant impairing effects - particularly drugs in the benzodiazepam family such as Clonopin (Clonazepam); and virtually any medication prescribed as a sleep aid, like Ambien; and most pain killers or muscle relaxants. All of these drugs have warning labels about the risk of driving or operating heavy machinery.  Of course, just using the medication and driving is not a crime. The government still has to prove beyond a reasonable doubt that the driver was impaired by the medication, just like in alcohol-DWI prosecutions.

I got arrested for DWI. The only thing I used was cannabis, which is completely legal where I live! And, I have a cannabis medical card. Aren’t the police violating my civil rights?

This is a very frequently-asked question. Now first of all, unlike in all other States in the Northeast USA, cannabis is not legal in NH. Possession of small amounts of cannabis has been “decriminalized”, but that doesn’t mean it's legal. Compare it to speeding – going in excess of the speed limit is also usually not a crime, but speeding is, nevertheless, illegal. 

More to the point, even if cannabis consumption was completely legal in NH, that doesn’t  mean that driving under the influence of cannabis is legal. Think about alcohol. It’s also completely legal in NH. But nobody thinks its OK to drive under the influence of alcohol. 

All that being said, the government still has to prove that the person’s ability to operate a motor vehicle was impaired by consumption of cannabis. That tends to be more difficult to prove than with alcohol, where the outward effects of intoxication are more obvious  to most people than with cannabis. We like getting the DWI-cannabis cases, because they present special challenges for the government, giving us more ways to get a good outcome for our client.

I have a prior DWI conviction from a long, long time ago. Can I get a limited license to drive to work?

Unfortunately, the NH DMV interprets the limited license law to bar any application by a person who has a prior DWI conviction, no matter how long ago. This is an instance where the NH DMV does not employ a 10-year lookback for prior convictions, but instead employs a “lifetime lookback” for prior convictions. And it doesn’t matter if the prior DWI conviction is from another State or jurisdiction, it still bars the applicant from receiving a limited license. 

I have a driver’s license from another State. I was arrested in NH for DWI. If I am convicted of DWI in NH and my operating privileges are suspended, will my home State still let me get a hardship license?

This is a very complicated question. The answer is different for each individual State. We are told by our attorney friends in other States that some States, like the Commonwealth of Massachusetts, will not issue a hardship license if the person is still suspended in NH. Other States do allow the person to drive on a hardship license in their home State, even though they are completely barred from driving within the geographical territory of NH. 

The officer wasn’t wearing a body camera. How can they prove me guilty when it's just his or her word against mine?

This is an interesting question that we get from clients and prospective clients during free consultations all the time. You got to  stop for a minute and remember - the criminal justice system has been prosecuting people and putting them in prison since pre-colonial times, and going back hundreds of years before that in England and other countries. We’ve only had body cameras in NH for the last couple decades. Their existence and use by some police departments doesn’t change the fact that people are convicted each and every day based solely on uncorroborated witness testimony - what the person says under oath that  they saw, heard, smelled, otherwise observed. 

The other interesting thing about this question is that body camera footage seems to help the defense more often than the prosecution. But it does take some of the “mystery and mystique” out of criminal defense. If the accused driver is filmed under oath saying things like “I’m sorry, I never should have been driving, I screwed up, I just ruined my life, I’m going to lose my job”, etc, it’s probably going to be a tough case, and there is no lawyer magic that can easily explain away those types of incriminating statements.