Frequently Asked Questions

Contrary to popular belief, and contrary to the portrayal of lawyers in certain TV shows like “The Lincoln Lawyer,” lawyers in real life are not allowed to knowingly present false testimony, not even from their own client. We are not allowed to do that, we have never done that, and we would never do it, not just because of ethical rules and morality, but because judges and juries are pretty good at telling the truth from a lie. There are many, many extremely effective ways to represent a client who is factually guilty - and we have probably, in our 80 combined years of experience, seen them all! (By the way, not throwing shade at The Lincoln Lawyer here, a couple of us love the show).

Let’s start with the obvious: Experience matters. We have to do hard things that require not just academic learning, but extensive real-world experience: Cross-examining a veteran detective who has seen every lawyer’s trick in the book and knows how to pounce on any opening given to them to further incriminate the client. Researching and writing a cutting-edge motion that doesn’t read like it was written by “ChatGPT.” Believing that the law is not a static thing etched in a tablet, but a living thing that can evolve and change to better accomplish the goal of doing justice. Persuading a prosecutor to do what is hard for them - to take a risk and agree to an outcome that is more about rehabilitation and redemption than punishment.

Beyond that, think about the skills that a criminal defense lawyer has to master to effectively represent a client. People skills - the power to persuade a prosecutor, judge or juror. The lawyer has to be able to analyze with intellectual rigor, and effectively argue, the vast modern library of criminal law and criminal procedure and courtroom rules. The lawyer has to have a powerful innate empathy towards others, including others that are very different from him or her. And finally, the lawyer has to be a good storyteller. As the old adage goes, no one is ever convinced by facts, they are convinced by a good story. And finally, the lawyer must have good judgment, which does not necessarily go hand in hand with how charismatic the person is, or how good of a "salesman" the lawyer is.

This is the single-most frequently asked question from clients and prospective clients. Probably, because they see cops routinely read those rights on TV shows and movies. But there is no absolute right to be read your Miranda rights at the time of arrest. In fact, the vast majority of NH cops and troopers do not read Miranda rights at the point of arrest, especially in misdemeanor and motor vehicle cases.

The Miranda right is not a right to be informed of something. The actual right is the right not to be interrogated while under arrest or circumstances that amount to a constructive right, unless the police have first advised and obtained a waiver of the right to remain silent, right to an attorney, etc.

In many misdemeanor and motor vehicle cases, especially DWI cases, the arresting officer never reads Miranda rights. Why? Because first, they have already done all the questioning at roadside. This is before arrest, so no Miranda advisory is required. And second, because people under arrest tend to say things spontaneously, in a misguided effort to either spill their guts or win over the officer’s favor. The US Supreme Court and NH Supreme Court have both held repeatedly that “spontaneous” statements made while in custody are admissible without any Miranda rights. So why would a cop remind an arrestee who might otherwise be talkative, that they have a right to remain silent, and that everything they say can be used against them?

All that being said, we often raise Miranda issues in both felony and misdemeanor cases. It’s an important part of our toolset. There is nothing more incriminating than a confession. Social scientists say that jurors find a confession more incriminating than a positive DNA match. That means we have to fight hard to try to limit such testimony.

The Definitions Section of the New Hampshire law on theft casts a wide net so as to include property that the accused has a partial ownership in. Thus, if two people live together and bought a flat screen TV together, and then one moves out and takes it with her without the other's permission, that could potentially be charged as a theft. The same is true for the statute and case law governing “criminal mischief”, which is the crime of damaging the property of another. We see this come up fairly often when a client accused of domestic violence offenses says something like, “I did throw and break the cellphone, which was stupid, but I bought it in the first place, so how is this a crime?” If the client gave the cellphone to another family or household member, it’s their property, at least in part, enough to allow the police and prosecution to pursue that charge.

This might be the second-most frequently asked question by our clients. There’s a very specific answer for sexual assault cases - NH law, upheld by the NH Supreme Court, holds that a sexual assault complainant’s story and trial testimony need not be corroborated at all, the jury just needs to decide whether they believe that story beyond a reasonable doubt. But in other types of cases, it is also fairly common to have a case where one person makes an identification of the assaillant, or the thief, etc, and there is no corroborating evidence such as an incriminating video or an injury.

Yes, that’s scary. The rationale with respect to sexual assault cases makes sense - there rarely is a “witness” to sexual assault, there often is no physical evidence, and confessions don’t happen very often either, even by the guilty. But that logical explanation does nothing to reduce the anxiety and fear of an innocent client who has been falsely accused and understands that he could be convicted based on the accuser’s story alone. And there are a lot of innocent clients out there.

Our answer to this is that it’s our job to dig deep and find the opposite of corroboration - find evidence that tends to identify a motive for the complainant to lie, or evidence that makes the complainant’s story seem improbable, or admissible evidence that shows the complainant is not a trustworthy person generally. This is what we do everyday, because the law does allow a person to be convicted of a crime based on just one other person’s story, and that means we have to do everything we can to undermine that story.

New Hampshire law allows the police and prosecutor to aggregate - add together - the value of multiple items or things of value taken in a single "scheme or course of conduct." NH RSA 637:2,, V(a). This is true even if there are multiple victims — that is, if the property was taken from a number of different individuals or businesses. Whether a series of criminal acts falls within a single "scheme or course of conduct" will be determined based on the accused's mental intent, which is a question for the judge or jury deciding the case. State v. Sampson, 120 N.H. 251 (1980).

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!

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.

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.

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. 

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.