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November 2014 Archives

DUI - Criminal Law Part III

So you have been arrested... Part III: Driving Under the InfluenceThe dreaded DUI. This is one of the most complicated and quickest moving types of cases; and if it is your first offense, the court may not appoint a lawyer to represent you. You have to hire your own attorney. This is because there is no possibility of going to jail, even though it is still a criminal offense, which must stay on your record for at least 10 years. The penalty that you are facing is a fine of at least $500, various substance abuse assessments with potential follow-up treatment, and a license loss of anywhere from 9 months to 2 years. Some, but not all, of this suspension could be suspended if you successfully fulfill other parts of the sentence, but you may have to install an ignition interlock device (in essence a breath test) into your vehicle. There are also the collateral consequences of a conviction that include potential habitual offender implications, as well as the increase in the cost of insurance.You will go to jail if you are convicted of a subsequent offense, or an aggravated DUI, as these are statutorily mandated jail sentences. Consequently, you may be eligible for a court-appointed lawyer, if the court determines that your financial status is such that you cannot afford one. A subsequent offense would be if you had one or more DUI convictions, even from another state, within the previous 10 years. There is an enhanced jail sentence if it was within the previous 2 years. There are several different permutations that define an Aggravated DUI. Some include if their was a child under 16 in the vehicle, or if you drove in excess of 30 miles per hour over the speed limit; but the most common, is when the blood alcohol test reveals a level of a .16 or greater. One part of a DUI that really shocks people, is that there are actually two ways of losing your license for a DUI charge. If you are arrested under the suspicion of DUI, you are subject to what is referred to as the Implied Consent law. In short, it means that by driving you are agreeing to take whatever alcohol concentration test the officer requests; blood, breath or urine. You do have the right to refuse, but either comes at a price. If you refuse, or if you test over the legal limit of .08, you will lose your license for 180 days for your first offense and 2 years for a subsequent offense. This starts 30 days after your arrest.The thing is, you can request a hearing as to whether this suspension is legitimate, but you must do so within those first 30 days. But, since this suspension is entirely in the purview of the Department of Safety Division of Motor Vehicles, a department of the executive branch, it has nothing to do with your court case. You can be acquitted of your case in court and still have this suspension in effect. Additionally, if you were appointed a lawyer, they may not be able to do this hearing, since it is outside of their appointment by the judicial branch.As you can see, there are many issues that lie ahead, and this Blog merely scratches the surface. Here at Martin, Lord & Osman, P.A., we can counsel and guide you through this difficult process, and will vigorously represent you not only in court, but also will arrange for and represent you at the DMV hearing you are entitled to.

Criminal Law Part II

So you have been arrested... Part II: Felonies in Circuit Court - District DivisionYou said that Felonies are handled only in Superior Court, why do I have to go to Circuit Court?So worst case scenario happened, and you are facing a felony. Felonies are the highest level of offense in New Hampshire and are broken down into classes; A and B. Class A felonies are punishable by up to 7.5-15 years in the New Hampshire State Prison, while Class B felonies are punishable by up to 3.5-7 years in prison. In either case, felony matters are dealt with at the Superior Court level. Each county has a Superior Court (in the case of Hillsborough County there are two divisions to the Superior Court, one in Manchester and one in Nashua). Your focus will go immediately to your trial, and you may even think that the first court date that you have is a trial; not true. All charges start off with an arraignment, and if you were arrested, that arraignment will actually be in the Circuit Court. There are several Circuit Courts in each county. This arraignment is when the judge informs you of the charge(s) that are pending against you, and regarding felonies, no plea will be entered on your behalf. You cannot say that you are either guilty or not guilty of the charge; that determination is for the Superior Court level.Sounds harmless... but there is a catch. Your bail gets revisited at this stage. So even if you have made bail when you were arrested, the judge can change it. He can raise it, lower it, or more-likely, add conditions governing what you can and cannot do while your case is pending. So even at this early of a stage, having an advocate on your side is important.What's next? Well, at that arraignment the judge will assign a date for you to come back for a Probable Cause Hearing, and that hearing is scheduled quickly. If you are still in custody because you have not made bail, that hearing is 10 days after your arraignment. If you are out on bail, it has to be scheduled within 20 days of your arraignment.No, the Probable Cause Hearing is not your trial; it may feel like it though. This is a hearing where the Circuit Court judge has to determine whether there is probable cause to believe that the charged offense occurred and that you committed it. Just like anything in a criminal proceeding, the burden of proof is on the Prosecution. Probable cause is a very low burden that they have; much less than the "beyond a reasonable doubt" that is required for a conviction.If the judge finds that there is probable cause, you are not convicted of the crime. Rather, the case is transferred to the Superior Court where the County Attorney presents the case to the Grand Jury and they determine whether an indictment is appropriate, and they do so in a secret proceeding. During this time, you remain under the bail conditions as set by the Circuit Court judge. If you are indicted the process starts for you in the Superior Court, and this is where your guilt or innocence is determined.If the judge does not find probable cause, it does not mean that your case is over. You could still be indicted if the County Attorney wishes to continue to prosecute the case. But, you are no longer under the bail conditions as set in the Circuit Court.This process moves fast, so it is important to have someone fighting for you. What happens next? Stay tuned for Part III: Felonies in the Superior Court.

Criminal Law Part I

So you have been arrested... Part I: Crime ClassificationsSo you have been arrested, probably not something you ever wanted to go through. Now what do you do? Well, these are tough waters to navigate through, and you may not even understand what you are facing.In New Hampshire, you can be arrested for offenses that can put you in prison for years, and offenses that are not even crimes. So how do you move forward? It all depends on the type of charge(s) that you are facing, so here at Martin, Lord and Osman, we have put together a multi-part practical overview of the criminal justice process from your perspective.First off, let's lay out what the potential is, and it is easiest to look at it as three different things. The first, and the most serious; Felony offenses. These offenses are handled only at the Superior Court level, and carry with the potential for years in the New Hampshire State Prison. The second category would be Misdemeanors; and these are the most common. These are handled at the Circuit Court level. Now there are two kinds of Misdemeanors, Class A and Class B, and the difference is important. Class A Misdemeanors carry the potential for up to 12 months in jail in the House of Corrections. Class B Misdemeanors are only punishable by fines.The last category would be Violation level offenses. These are also handled at the Circuit Court level, and are only punishable by fines. It is important to understand that these are not criminal offenses. You are not a criminal if you are convicted of one; so even though you may be sitting in a crowded courtroom and you see people coming in and out in handcuffs; that is not going to happen to you.For more information, stayed tuned for more on our Blog, and for a chance to sit down with our criminal defense team, give us a call at (603) 524-4121.

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