Most driving while intoxicated investigations begin with a traffic stop. When a case begins with a traffic stop, then the first issue that a DWI defense attorney will analyze is whether the arresting officer violated the driver’s fundamental right to be free of unreasonable searches and seizures under the Constitutions of the State of New Hampshire, and of the United States.
In our experience, more cases are won or lost on search and seizure issues than on the merits. That means that many clients of our firm, who are otherwise guilty of driving under the influence, have seen their DWI cases dismissed — or have been allowed to plea guilty to a lesser offense — because the arresting officer violated the client’s constitutional rights in the manner that he or she made the vehicle stop. That’s right — many clients of our firm avoid DWI convictions despite the fact that they probably should not have been driving that night.
The best motion to suppress from the defense standpoint is the motion to suppress the stop, since a successful motion will suppress all evidence in the case. A vehicle stop, referred to in the criminal justice field as an “investigative detention,” cannot be upheld unless the police officer has “reasonable suspicion that the person detained had committed, was committing, or was about to commit a crime. The officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Blake, 146 N.H. 1, 4 (2001) (internal citations and quotation marks omitted); Terry v. Ohio, 392 U.S. 1, 26-27 (1968). In other words, the police officer must be acting on specific facts, not just a “hunch,” according to many decisions of the New Hampshire Supreme Court.
The following are examples of typical justifications offered by police officers to make a DWI stop.
In State v. Craveiro, 155 N.H. 422 (2007), a case that Concord DWI defense attorney Ted Lothstein briefed, argued and won in the New Hampshire Supreme Court, the Wentworth, NH police chief was monitoring a flooded road and stopped Mr. Craveiro’s vehicle because it seemed to be driving right through a flooded portion of the road. The Court held that the officer did not have reasonable suspicion that Mr. Craveiro was committing any crime or traffic violation such as DWI, and did not have a valid “community caretaking” justification to stop the car. Thus, all evidence in the case was suppressed, and the case dismissed.
Many vehicle stops are based on claims that the driver was weaving, and drove over or crossed the fog line one or more times. If the “erratic” operation consists merely of several brief, incidental lane violations, the type of mistakes made by all drivers from time to time, a court may grant a motion to suppress. The wording of New Hampshire’s lane control statute appears to allow for incidental infractions. RSA 265:24 (“A vehicle shall be driven as nearly as practicable entirely within a single lane”).
Courts, interpreting similar “nearly as practicable” lane control statutes, have held that these type of incidental infractions alone do not constitute probable cause for a lane violation, nor reasonable suspicion of impaired driving. Where noted, the court relied on a lane control statute using the same or similar “nearly as practicable” formulation enacted in this State. E.g., U.S. v. Colin, 314 F. 3d 439, 444-46 (9th Cir. 2002) (drift onto fog line for 10 seconds then a drift to the left traveling on yellow line for 10 seconds); U.S. v. Gregory, 79 F. 3d 973 (10th Cir. 1996); State v. Tague, 676 N.W.2d 197, 204-206 (Iowa 2004); Rowe v. State, 769 A.2d 879 (Md. 2001) (twice crossing fog line did not justify stop under lane control law, DWI statute or community caretaking function); State v. Lafferty, 967 P.2d 363 (Mont. 1998) (stop invalid despite two crossings of fog line and anonymous tip that driver was drunk); State v. Caron, 534 A.2d 978 (Me. 1987) (stop invalid where driver straddled center line of undivided highway for 25-50 yards); U.S. v. Smith, 799 F. 2d 704 (11th Cir. 1986) (crossing fog line by six inches, plus weaving, not grounds for stop).
A Nevada Supreme Court opinion holds that driving slower than the speed limit cannot by itself provide the reasonable suspicion of criminal activity necessary to justify an investigatory stop, but it may support a community caretaking stop in rare cases, and can be assessed along with other indicia of impaired operation. State v. Rincon, No. 46322, 80 CrL No. 12 at p. 304 (Nev. Dec. 7, 2006).
See our page on DWI Checkpoints.
According to the Hawaii Supreme Court, a majority of jurisdictions have ruled that a driver’s intentional avoidance of a DWI roadblock, absent other indicia of criminal activity such as erratic operation, is not sufficient to constitute reasonable suspicion to stop the vehicle. State v. Heapy, 80 CrL 17 at p. 462, No. 27375, (Haw. 1/11/07) (so ruling under the Hawaii state constitution, and collecting cases).
When police enter a private home without a search warrant, Courts apply much greater scrutiny because of the heightened privacy interests in a private home. Thus, in the absence of exigent circumstances, a warrantless home entry to investigate a suspected DWI or make a violation DWI arrest is unconstitutional. State v. Seavey, 147 N.H. 304, 307 (2001) (setting high bar for exigent circumstances); State v. Lovig, 675 N.W.2d 557 (Iowa 2004) (metabolization of alcohol alone is insufficient exigency to justify home entry to make misdemeanor DWI arrest);Welsh v. Wisconsin, 466 U.S. 740 (1984) (warrantless nighttime entry of home to arrest for violation drunken driving offense violated fourth amendment).
In cases in trial courts across New Hampshire, we frequently obtain dismissals in DWI prosecutions, or obtained a plea to a lesser, non-criminal offense such as reckless operation, as the result of litigating search and seizure issues. Here are just a few examples of such cases:
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