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Vehicle Stops, DWI and the Constitution

Litigating Traffic Stops

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.

Motions to Suppress in DWI cases – a Winning Strategy

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.

Motions to Suppress the Vehicle Stop

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.

Typical Reasons that Police Officers Stop Drivers

The following are examples of typical justifications offered by police officers to make a DWI stop.

Community Caretaking

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.

Read more about Ted’s victory on appeal in the Craveiro case.

Weaving / Lane Violations

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).

Driving Too Slowly

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).

DWI Roadblocks/ Sobriety Checkpoints

See our page on DWI Checkpoints.

Taking a Turn-off or Highway Exit to Avoid a Sobriety Checkpoint

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).

Entries into Private Homes

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).

Getting Dismissal of Your Charges — or a Plea to a Lesser Offense — Because of Improper Search or Seizure by Law Enforcement

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:

Client, charged in Plymouth District Court with DWI, was arrested at a Holderness, NH “sobriety checkpoint” (roadblock). At trial, Attorney Lothstein argued that all evidence should be suppressed because a state trooper violated driver’s constitutional rights during the investigation. The Judge agreed, and granted the motion to suppress — case dismissed! Read More
Concord Police Officer stops Client and charges Client with DWI after observing Client drive in circles late at night, seemingly lost, with a plate light out. Attorney Lothstein files motion to suppress the vehicle stop. Subsequently, prosecutor gives Client the opportunity to plead to a lesser offense, with the DWI dismissed. This plea saves Client’s commercial driver’s license. An administrative hearing convened to suspend Client’s commercial driver’s license for one year results in no suspension at all because Client did not get convicted of DWI, and did not sustain a DWI administrative suspension. Read More
State Police arrest Client after he is stopped in a DWI roadblock and blows a breath test over the legal limit. Judge Rappa holds that the investigating officer did not have sufficient suspicion to justify removing driver from the vehicle for field sobriety tests, and grants motion to suppress all evidence that follows, including the breath test. This results in dismissal of the charge. Read More
Pelham police arrest Client for DWI following a traffic stop for weaving. The cruiser video shows that Client did not cross the center line a single time. Client’s DWI is dismissed and Client is allowed to plead guilty to negligent operation, a much less serious offense. Read More
Enfield Police Department stop Client for driving with a seemingly defective headlight, late at night in a neighborhood recently plagued by vandalism. Attorney Lothstein files motion to suppress the stop, and subsequently, prosecutor allows Client to plead guilty to lesser offense, negligent operation. Read More

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