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Motions to dismiss a DWI

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New Hampshire DWI Affirmative Defenses & Motions to Dismiss

One of the primary goals of an experienced NH DWI lawyer is to avoid having their client’s DWI case ever go to trial. If an acceptable plea bargain cannot be reached with the prosecution, then a DWI attorney’s next step will often be to file a motion to dismiss. In certain scenarios, the proper remedy will be to have the entire charge dismissed.

Here are a few examples of motions to dismiss that a New Hampshire DWI attorney might use:

§  Speedy Trial. As with any other type of criminal charge, a defendant charged with a DWI has a right to a speedy trial. The NH Supreme Court has devised a four part test to evaluate whether or not the defendant’s legal right to a speedy trial has been violated. These four parts consist of 1) the delay’s length, 2) the reason for the delay, 3) when and how a defendant chooses to assert his right to a speedy trial, and 4) the prejudice the delay has created for the defendant. In general, a delay of 9 months, or six months in some cases, is considered presumptively prejudicial.


§  Insufficient Complaint. In DWI proceedings, a defendant has the legal right to be informed specifically of what the state is alleging has occurred. This is to ensure that the defendant receives fair notice as to what the state is required to prove. A DWI defendant is also entitled to the right of due process in order to be freed from the threat of double jeopardy.


§  Statute of Limitations. Except when otherwise stated for misdemeanor offenses, the New Hampshire statute of limitations is one year. For felony charges, the statute of limitations is 6 years, with the exception of murder, which does not have any limitations.


§  Spoliation/Loss of Video Evidence. When evidence in any New Hampshire criminal proceedings, including DWIs, is destroyed or lost, there is a possibility that the defendant’s due process legal rights may have been violated. With this type of motion, an NH court will examine a number of factors to see if this has happened. In one recent ruling, an NH court held that the destruction of a DWI suspect’s videotape was prejudicial to the case against the defendant.


New Hampshire DWI Affirmative Defenses

If your New Hampshire DWI lawyer cannot have the charges against you successfully dismissed, and an acceptable plea bargain cannot be negotiated with the prosecution, then the next step is for your case to proceed to trial. Depending upon the specific facts surrounding your case, there are a number of DWI defenses that your legal counsel may choose to employ. One of these options is the use of affirmative defense. When it comes to DWI defenses, affirmative defenses tend to be somewhat rare; however, there are specific scenarios in which the facts warrant this type of defense.

Here are a few of the most commonly used types of affirmative defenses in NH DWI cases:

§  Involuntary Intoxication. Naturally, involuntary intoxication cannot be used as a viable defense against a driving while intoxicated charge. However, if the defendant was drugged without their knowledge, or consumed some type of medication (like Ambien) that produced unintended side effects, involuntary intoxication could be employed as a valid defense during a DWI trial. For most crimes in general, including DWIs, a New Hampshire prosecutor must prove that a “voluntary act” occurred. A defendant cannot be found guilty of an offense unless their criminal liability was based upon conduct that includes the voluntary omission or a voluntary act of which they are physically capable.


§  Competing Harms. A prime example of a competing harms DWI offense would occur in a scenario in which the defendant has consumed several alcoholic drinks in the privacy of their own home and either the defendant themselves, or a friend of family member within the home, suffers from an emergency and must be taken to the hospital. In order to save the victim’s life, the individual who has had several drinks must drive the victim to the emergency room ( assuming that doing so would take less time than waiting for an ambulance or alternative form of transportation).


An actor’s conduct which they believe to be necessary to avoid harm to their person or other individuals can be deemed justifiable if the urgency and desirability of avoiding the perceived harm outweigh, according to the accepted standards of reasonableness, that harm being sought to prevent by the state statute that defines the charged offense.


§  Incompetent to Stand Trial. When an individual may be deemed incompetent to stand trial, the defense’s legal representation has a professional and legal obligation to raise the competency issue with a New Hampshire court. The matter at hand will be stayed, pending a competency hearing by a qualified judge, once an evaluation has been conducted.

The current competency test used within New Hampshire is “whether a Defendant has sufficient current ability to meaningfully consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.”

The Importance of Having Experienced Legal Counsel

The laws and statutes that govern driving while intoxicated in New Hampshire are complex and intricate. There are many valid legal tactics that can be utilized to obtain a favorable outcome in your case; however, it requires the experience and skill of a seasoned NH DWI lawyer to determine the best course of action for your unique case. This is where our law firm can step in to help.

With decades of combined experience in NH DWI law, each of attorneys is familiar with the ins and outs of the law. We have developed an extensive network of professional relationships with others whom we can call upon for assistance with a case, and we pledge to work diligently on your behalf. For a free consultation about your case, contact our law firm today via phone, email, or through our website.

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