Everyone who goes through the experience of the roadside embarrassment, then being arrested like a criminal, calling a spouse or close friend for a ride from the police station, and the months of consequences and expenses is certain that they will NEVER go through that again. However, as many later find out, it can happen again unexpectedly. Whether the police interpreted something you said or did as evidence of intoxication or a third glass of wine, too many people end up facing a subsequent DWI charge.
The consequences of a DWI charge are more severe after the first accusation. Even if the DWI first offense ended with a charge reduction or, in some cases with acquittal, the second accusation can carry much more severe consequences.
Every DWI offense has minimum mandatory penalties assigned to a conviction. Here, we are looking at the increased minimum mandatory penalties that result from DWI 2nd Offense that is reduced to a DWI 1st Offense even though there is a prior DWI conviction on record. For various reasons, often involving the strength of the case or how busy the parties may be, a prosecutor may agree to a plea whereby a DWI 2nd Offense is reduced to a DWI 1st Offense. In many cases, this offer may be a gift. Sometimes, however, it’s simply a trap.
It is important to remember that, in every DWI case, the penalties are coming from two separate and distinct places. Typically, the earliest penalties come from the DMV’s Bureau of Hearings. That’s the “automatic” license suspension that results from either refusing a breath/blood test or submitting to a test in which the blood alcohol content (b.a.c.) exceeds that legal limit. Strict time limits apply to this license suspension. So, contact a DWI specialist right away to avoid accepting these penalties by default.
First, let’s address the DMV penalties referred to as Administrative License Suspension or “ALS” suspension. This is the “automatic” suspension that results from refusal to provide a breath or blood sample. The ALS suspension is also triggered if a sample is provided and it tests above the legal limit. Although the ALS suspension from the DMV is often characterized as “automatic”, it is often defeated through flaws in the process. An experienced NH DWI lawyer will be able to comb through the reports and analysis to determine whether an ALS suspension can be defeated. Again, strict deadlines can prevent a challenge; so time is of the essence.
In the instance where a person has a prior DWI offense on his/her record, the ALS suspension can be significantly greater. Even if the prior DWI did not result in a conviction, it may still result in a longer ALS suspension. A second ALS suspension will be 2 years long and any suspension imposed by the court may not start until the ALS suspension has expired. Therefore, if a prosecutor offers “the minimum mandatory sentence” without reference to the ALS suspension, the license may remain suspended for years even with a reduction in charge to a DWI 1st Offense.
As crafty DWI Defense attorneys, we have been finding ways to avoid DWI minimum mandatory penalties for many years. We tend to develop strategies to help our clients avoid the penalties that unrepresented parties will suffer. As each new strategy becomes more commonplace and widespread, special interest groups persuade the legislature to close the loopholes. One such strategy has been to encourage a prosecutor to reduce a DWI 2nd Offense to a lesser charge; thereby avoiding the substantial minimum mandatory penalties attached to the DWI 2nd Offense.
As this practice became a common practice and undermined the term “mandatory”, the legislature acted to eliminate the advantages of charge reduction. In the case of a DWI 2nd offense being pled as a DWI 1st offense, the legislative cure was to require the judge to examine the driver’s prior record. If the judge found that the driver had a prior DWI conviction on his/her record within the past 10 years, the judge is required by law to implement a license suspension between 1 and 3 years instead of the 9 months
Experienced DWI attorneys, not to be confused with attorneys who will take a DWI case from time to time, routinely encounter the complexities of DWI law and are continuously crafting new and creative ways to bring about the best outcome possible.
Call Attorney Shawn P. Sweeney now for a FREE INITIAL CONSULTATION: (603) 589-8015.