DWI CASE EXAMPLE-DECEMBER 9. 2009

BOATING WHILE INTOXICATED (“BWI”)

CASE DISMISSED DURING TRIAL IN COURT

A driver was stopped on Lake Winnipesaukee for operating a boat without bow lights on at around 11:00 p.m.  The operator ended up charged with “boating while intoxicated”, which is now part of the “driving while intoxicated” (DWI) statute and carries similar penalties.  Because the driver had a pair of old DWI convictions on his record, he was facing mandatory jail time and a 5 year loss of his right to drive a car if convicted.  He refused to blow into a breath testing hose at the police station after his arrival on shore.  He also chose to fight the state’s efforts to lock him up and take away his right to drive a car or boat… READ ON TO SEE WHAT HAPPENED...

http://www.ByeByeDWI.com

Please note-this is an example of the result of a recent New Hampshire Boating While Intoxicated (BWI) trial. It is by no means a guarantee of any particular result in any other case. It DOES show though, that the only really “automatic” suspensions of a driver’s license occur when the driver does not fight the suspension at a hearing and at trial:

http://www.ByeByeDWI.blogspot.com

Now on to the facts of this case….

BASIC FACTS: The driver of a boat was stopped for driving without his bow light on.  He had three passengers on the boat at the time.  An officer activated the blue light on his patrol boat and stopped the boat.  Once stopped, the patrolman orchestrated the driver through a ritual “safety inspection”, demanding to see lifejackets, throw-able flotation devices; even asking the driver to honk the horn of the boat and make sure that everyone on the boat had a life jacket.  During this time the patrolman saw some empty beer cans on board and claimed to smell alcohol coming “from the operator”. 

          Even though the boat driver performed these tasks fairly well, the patrolman interrogated him about drinking any way.  The driver chose to answer the questions about drinking and eventually said that he had had a beer earlier.  The officer reported that the driver’s eyes were “bloodshot and glassy”, a rote observation that appears in nearly every DWI or BWI report.

            The officer then asked the driver to board the patrol boat for some “marine field sobriety testing”.  (NOTE FOR THE UNWARY: THIS IS THE POINT AT WHICH THE ARREST DECISION HAS PROBABLY ALREADY BEEN MADE.  CHOOSE WHETHER TO PERFORM THESE “TESTS” CAREFULLY.  THERE IS NO SCORING SYSTEM FOR THESE EXERCISES, AND THE DECISION TO ARREST IS ENTIRELY BASED UPON THE OFFICER’S WHIM).  Marine field sobriety tests are an unusual battery of seated dexterity and counting exercises designed to trick the driver.  These are the seafaring version of the sidewalk acrobatics known as “standardized field sobriety testing” done during DWI cases at the roadside.  The most basic difference is that there is NO OBJECTIVE SCORING CRITERIA FOR MARINE FIELD SOBRIETY TESTING.  One of these “tests” is much like the childhood game of “one, potato, two potato”. 

          (For a series of articles on the 6 most common “floating field sobriety tests”, feel free to review my blog):

          http://www.byebyedwi.blogspot.com

          This driver supposedly “failed” some of these tasks, but counted and said the alphabet pretty well.  He “passed” two tests and “failed” two others.  NOTE-THIS IS A GREAT EXAMPLE OF WHY COOPERATION OFTEN DOES NOT BENEFIT THE DRIVER; YOU SHOULD CHOOSE WHETHER TO DO FIELD SOBRIETY TESTS CAREFULLY.  The fact that you can’t perform the “one, potato, two potato” trick well really has nothing to do with whether or not you’re drunk or whether you can safely drive a boat.  But it will be used as evidence against you if you choose to do this “test”.

          Back at the station the driver chose not to blow into the black rubber breath testing hose when asked to do so by the officer.  Therefore, the state sought to suspend his driver’s license via an “implied consent suspension” request to the New Hampshire Department of Safety. 

          The boat driver hired Attorney Stevens to fight both the criminal charge as well as the boating “implied consent suspension”.  NOTE-if you are facing an implied consent suspension after a “boating while intoxicated” arrest, the state is seeking to suspend not only your right to drive a boat, but they are trying to take away your right to drive a car as well!

THE BOATING IMPLIED CONSENT SUSPENSION HEARING:    

After the state filed its request for an administrative license suspension, also known as an “implied consent suspension” hearing request, Attorney Stevens filed an appearance in this case.  At the hearing, Attorney Stevens moved to dismiss the state’s request to take the driver’s license away, based on a fatal error on the implied consent form itself and the rules that govern administrative license suspension proceedings.  Attorney Stevens’ motion to dismiss the state’s suspension request was granted after the hearing.  Because the driver had prior administrative suspensions on his driving record, this driver avoided a two year suspension of his driver’s license.  The administrative license suspension request in this “boating while intoxicated” case was DISMISSED!!!!!

THE TRIAL IN COURT

Prior to the trial date Attorney Stevens filed a motion to suppress evidence.  The state objected.  During the trial Attorney Stevens argued that all the evidence of intoxication should be suppressed (thrown out) because the officer did not have a reasonable suspicion that the driver was impaired by alcohol.  The Trial Court agreed after hearing the parties’ respective arguments on the motion, and granted Attorney Stevens’ motion to suppress the evidence and motion to dismiss the charges against this driver.

RESULT:  Boating While Intoxicated, subsequent offense charge DISMISSED!!!

Attorney Stevens thanks God for this successful defense!!!

TODAY’S SCRIPTURE:

“She will bear a Son, and you will call His name Jesus, for He will save His people from their sins.”

Matthew 1:21

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