Collateral Consequences of DWI Convictions

If you hire an inexperienced lawyer, a lawyer who does not frequently handle DWI cases, or a lawyer whose caseload is too high to pay sufficient attention to your case, “collateral consequences” will mean:

A big nasty surprise, that comes along

1. just when you think the case is over, and
2. when its too late for your lawyer to do anything about it.

Good News for Lazy Lawyers, Bad News for Clients

Don’t think for a minute that the courts will protect you from a lawyer’s failure to inform you of collateral consequences.

First, court decisions protect the courts – sentencing courts are not required to warn clients about all collateral consequences of conviction. State v. Elliott,133 N.H. 190 (1990).

Second, court decisions protect the unprepared or ill-informed lawyers. Specifically, several NH cases state that failure to warn of collateral consequences will not constitute ineffective assistance of counsel. Wellington v. Commissioner of Dept. of Corrections, 140 N.H. 399 (1995); State v. Harper, 126 N.H. 815 (1985). That means that if you find out about the collateral consequence only after you have pled guilty or tried your case, it might be too late to do anything about it.

The Bottom Line: Only You Can Protect Yourself from Inadequate Legal Advice

Only you can protect yourself from inadequate advice regarding collateral consequences – by hiring a highly-experienced, skilled and focused NH DWI defense lawyer — like defense attorney Ted Lothstein (statewide DWI defense, office located in Concord, NH) or Richard Guerriero (DWI defense in southwestern NH, office located in Keene, NH), or either one of our terrific associate attorneys, Kaylee Doty who works primarily out of the Concord office, and Oliver Bloom who works primarily out of the Keene office.

Out-of-State License Holders

In most if not almost all instances, a NH DWI conviction or administrative license suspension (e.g.,for refusing a breath test) will cause severe consequences to driver’s home-state driver’s license. The inexperienced or ill-prepared lawyer may advise client that she will receive a “reciprocal suspension” and define that as: when you meet all NH requirements and restore operating privileges in New Hampshire, you can restore your license in your home State.

The reality is much, much more complicated.

For example, one NH case tells the nightmarish story of the Massachusetts driver who was told by his lawyer that if he pled guilty to DWI, 1st offense in New Hampshire, he would receive as little as a 90 day suspension. He pled guilty, and then the Massachusetts Registry of Motor Vehicles suspended his driver’s license – for life. State v. Sharkey, 155 N.H. 638 (2007). Fortunately for him, the lawyer's wrong advice was deemed so egregious, it did justify overturning the guilty plea and sentencing and restoring the case to the court's docket.

This happened because New Hampshire only takes into account prior DWI convictions within the last 10 years, whereas Massachusetts is a “lifetime look-back” State – DWI convictions never get removed from driver’s record and never become so old as to fall out of consideration.

We are highly experienced lawyers when it comes to representing drivers from many other States, including Massachusetts, Maine, Connecticut, Vermont, Rhode Island, New York, and we have also represented many clients with licenses issued by far-away States such as Virginia, North Carolina, Texas, Florida, Pennsylvania.

Mostly, these clients are arrested in NH while visiting family, staying at a second home, boating, skiing, snowboarding, hiking the White Mountains, snowmobiling, etc.

More information for Massachusetts drivers.

Information for Connecticut drivers.

Information for Maine drivers (coming soon)

Information for Vermont drivers (coming soon)

Medical Suspension – Worse than a DWI Conviction?

Most DWI defenses run along a common theme where the defense does not necessarily dispute all of the factual observations made by the police officer, but attributes them to a cause other than alcohol/drug impairment, such as exhaustion, nervousness, physical impairments, ADHD, etc. Sometimes, the best available theory of defense looks something like this: Driver was physically ill, or mentally ill, and the officer mistook symptoms of mental or physical illness (or both) for alcohol or drug impairment.

Raising a “medical defense,” however, runs the risk of activating a significant collateral consequence – an indefinite license suspension after DOS "Improper Driver" Hearing, governed by NH RSA 263:56, and administrative regulations Saf-C 203.13, 204.02 and 205.08.

Yes, you read that correctly – if a lawyer carelessly presents a defense at trial without consideration of collateral consequences, the lawyer may cause client to face an INDEFINITE medical suspension. Worse yet, the medical suspension hearing will occur before an administrative hearings officer, not a judge or jury, and may proceed entirely upon hearsay paperwork, without witnesses from the law enforcement authority that initiated the proceeding and without live testimony from the physician.

Commercial Driver License (CDL) Holders, Pilots and Air Traffic Controllers

Not surprisingly, an administrative license suspension (ALS) or DWI conviction may have devastating consequences for a CDL holder, airplane pilot or air traffic controller. There are many different laws and administrative regulations that require pilots and air traffic controllers to report convictions, and require suspension of CDL licenses for at least one year and possibly for life depending on the overall set of circumstances. There are special provisions for drivers carrying hazardous materials, drivers who left the scene of an accident, drivers of commercial vehicles who provided as low as a 0.04 breath or blood test, etc.

More information for CDL holders.

Travel to Canada

An email from a NY lawyer to a national list-serv of DWI lawyers, described the sad saga of his former client trying to travel with friends to a bachelor party in Montreal – but only his friends were allowed in the country. Client was turned away at the border. Client had been charged with two DWIs, but the lawyer had beat one of them, and the other case hadn’t even gotten to Court yet! Again, the definition of a collateral consequence, all too often, is a consequence that involves a call to client’s former lawyer, reporting a BIG SURPRISE, and former lawyer or her legal secretary having to utter the sad words, “S*&t happens” !!!

Canada will bar anyone charged with DWI from entry, even while they are legally presumed innocent – e.g., before they even get to Court.

For those convicted of DWI, Canada bars the client from entry for 10 years, unless the Canadian grants a waiver based on application and good cause shown.

Immigration

Conviction for a DWI or other alcohol-related offense may create immigration problems for the client who seeks to adjust his status to that of lawful permanent resident. Such a conviction may thus affect the person’s “admissibility” for immigration purposes. Conviction of DWI or other alcohol-related offense may also negatively impact the client’s prospects for becoming a naturalized citizen. For these reasons, we recommend that non-citizens retaining us for a DWI or other case also consult with an expert immigration lawyer before making a decision relative to the DWI.

Habitual Offender – a Devastating Collateral Consequence of Conviction

DWI is a major offense for purposes of certification as an habitual offender in New Hampshire.

Driving after certification as an habitual offender, with a DWI on the record, is a felony with a mandatory minimum one year jail sentence.

The existence of a DWI as a predicate offense disqualifies client from potential of a misdemeanor conviction for driving after certification as an habitual offender.

Probationary License

Conviction for any level of DWI under RSA 265-A:2 or 3, Reckless Operation (RSA 265:79) or Transportation of Controlled Drug (RSA 265-A:43) means that driver will have a “probationary license” for 5 years.

When driver has a probationary license, his/her new “legal limit” is .03 BAC or more – not for purpose of the DWI laws – but for purpose of ALS revocation. That means that for purposes of the administrative consequences of submitting to or refusing breath tests, driver's new legal limit is .02 (approximately one drink). The definition of a criminal DWI remains the same when you are a probationary driver who is at least 21 years old – a .08 legal limit, and/or “impaired to any degree”. The purpose of the probationary status is to make it very easy to revoke your license administratively if you drink as little as one drink and then submit to, or refuse, a breath, blood or urine test.

• Administrative suspension imposed for .03 or more of not less than 90 days, not more than 180 days
• This suspension shall be “in addition to” (consecutive?) any court imposed suspension or revocation periods.
• An administrative suspension also follows refusal of test if “police have reasonable cause to believe” probationary license holder is “driving with an alcohol concentration of .03 or more” – 90 day administrative suspension

Life Insurance Policies

According to www.insurance.com, a DWI conviction is a red flag that may cause an insurance company to decline a life insurance policy application, charge a higher premium, or check background more carefully, including checking a blood sample for liver enzymes that are sign of alcohol abuse.