04/27/2009.  NH Supreme Court upholds Due Process right in DWI investigations.

Today the Court held that police must capture and preserve additional breath samples when administering breath tests at the police station, for later analysis by an independent laboratory at the accused's own expense.

Without captured breath samples, the Intoxilyzer 5000 is nothing but a "black box" - we don't know how it's software works, we don't know the extent to which it can be trusted to screen out "interferent" compounds that are misidentified as alcohol on the breath, and we don't know when it has malfunctioned and produced a misleading and erroneous result.

For decades, the legislature and courts have required that police preserve a captured breath sample for analysis by a much more sophisticated gas chromatograph instrument, but in 2010, the legislature sought to eliminate that fundamental safeguard for the falsely accused.

That's why Ted Lothstein, and friends and fellow DWI lawyers John Durkin and Mark Stevens agreed to co-author an Amicus ("friend of the court") brief on behalf of the New Hampshire Association of Criminal Defense Lawyers (NHACDL).  The brief opposed a pending Bill that would eliminate the requirement of captured breath samples in DWI investigations.  David Rothstein, on behalf of the Appellate Defender Program, also submitted a brief in opposition to the proposed law.

On April 27, the NH Supreme Court rejected the position of the Department of Safety, House Criminal Justice Committee and Attorney General's Office — instead ruling that eliminating the captured sample requirement would be fundamentally unfair.  A big victory for the NHACDL, for DWI lawyers and their clients, and for the cause of justice.  Read NHACDL's Amicus Brief here.

New Hampshire statutes, regulations and caselaw require that breath testing machines capture and preserve a second sample of the accused's breath.  The accused is given the captured sample and has the right, at  her own expense, to have the sample tested by an independent laboratory.  The independent laboratory, CG Labs, uses a gas chromatograph - a far more reliable instrument - to determine the alcohol concentration in the breath - and the presence or absence of any interferents that may have tainted the reliability of the Intoxilyzer's reported result.  The Department of Safety, and prosecutors, want to do away with this important safeguard that tends to prevent the conviction of the innocent.  Why?

According to a front page article in the Concord Monitor, entitled, ironically, "State Aims to Upgrade Breath Test," government bureaucrats at the Department of Safety are lobbying the legislature hard to eliminate the captured sample requirement.  They say their motive is "good science" - the Intoxilyzer 5000 is an old machine, new machines made by other manufacturers cannot be configured to capture a breath sample for the accused, so legislators should repeal the laws mandating captured samples.  State Forensic Laboratory Director Tim Pifer contends that the Intoxilyzer 5000 is not only old, but fundamentally unreliable, so upgrading is in everyone's interest, including the accused.  What's wrong with that argument?  

First, Pifer's only evidence that the Intoxilyzer 5000 is "unreliable," is that the captured samples show the machines to be wrong 5% of the time.  As an aside, this will come as a rude surprise to the hundreds of defendants over the last two decades who have been convicted by judges and juries based on sworn testimony from other bureaucrats at the Department of Safety that the Intoxilyzer 5000 is highly reliable!  More to the point, however, is the sheer chutzpah of this argument which basically goes as follows:  1) Captured samples show that the breath testing is prone to error, 2) How do we solve that embarrasing problem?  3) Eliminate the captured samples!  Then, the error rate will magically fall to zero.

Second, the State does not actually propose to buy all new machines, because that would cost a fortune to the taxpayers.  New machines from manufacturers like Germany's Draeger can cost upwards of $12,000 per machine, plus expensive training of maintenance personnel, etc.  So, Pifer suggests in the Monitor article that we upgrade the machines one by one.  Of course, that makes no financial sense whatsoever.  The cost of the machines will be far less to the State if purchased in bulk.  So, do the bureaucrats really want to promote reliable science... or do they simply want to eliminate the embarrassment that occurs when captured sample analysis demonstrates the problems with breath testing. 

NH Supreme Court: Right Against Self-Incrimination Applies at Sentencing Hearings, Not Just Trials.

Here's a familiar scenario: Prosecutor thinks DWI defendant has no prior DWI convictions. 

Client, and attorney through attorney-client privilege, know there are prior convictions in another State. 

Judge, at sentencing hearing, asks client:  "Before I impose sentence, I will ask you:  Do you have any prior convictions for DWI?"
 
A skilled lawyer will be able to deflect this question, or refuse to answer it outright, under the authority of State v. Burgess, an appeal briefed and argued by Ted Lothstein.  In Burgess, the Court squarely held that the right against self-incrimination applies not just at trial, but at a sentencing hearing.  The defendant retains the right to remain silent, and the sentencing judge may not draw an adverse inference from silence (e.g., if accused had nothing to hide, he would not need to remain silent). 

Thus, under Burgess, the judge has no right to ask that question, the client should not answer, and the lawyer should protect his or her client.

May 25, 2007.  Drunk Driving:  Secret Random Stops Upheld.

Being a DWI Hunter is tough.  You've got to hide in darkened parking lots across the street from bars, cruise the highway, and drive all over town, looking for a drunk driver... and hope that the drunk driver drives so badly that you'll develop individualized, reasonable suspicion to pull him over.

There's got to be a better way. 

Commercial fisherman don't always use a hook and line, do they?  Some use a driftnet.

In State v. Hunt,155 N.H. 465 (2007), the New Hampshire Supreme Court, interpreting the State Constitution, upheld a DWI roadblock in Portsmouth where the only advance publicity had been in a Dover newspaper a few hours before the roadblock.  

Five defendants caught in the dragnet won their motions to suppress in the district court, but the State prevailed on appeal. 

Previously, the Court had at held that significant advance notice of roadblocks must be publicized in local media because otherwise roadblocks have no deterrent value in deterring drunk driving. 

Besides, advance notice allows the public can make a choice... do I want to waive my constitutional rights and submit to random, suspicionless searches when I go out this Saturday night, or would I prefer to stay home? 

The Court decided:

1. Sobriety checkpoints do not per se violate Part I, Article 19 of the New Hampshire Constitution.

2.  The Court backed away from its previous emphasis on the importance of advance publicity and even implied that advance publicity may not be constitutionally required at all, leaving that for another day. 

So, what to do about sobriety checkpoints?

If you see a checkpoint up ahead, and you don't feel like submitting to a warrantless and unwarranted intrusion into your privacy, take the next available turn-off.  According to the Hawaii Supreme Court among others, intentional evasion of a checkpoint is not reasonable suspicion to stop the vehicle.

The Court rejected the defendant’s claim that such presentation of rank hearsay regarding the collection and testing of his blood sample would violate the federal confrontation clause as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 126 S.Ct. 2266 (2006).

Further, in reaching this result, the Court acknowledged that the hearsay testimony at issue practically amounted to the only evidence of guilt in the case.

With a new Justice appointed to the Court this month, the time is ripe for the Court to revisit and overrule the O'Maley decision.  Litigators should argue that it was wrongly decided as a matter of State Constitutional law, and at any rate was abrogated by the United States Supreme Court's decision in Melendez-Diaz.  No State can afford its citizens less rights than guaranteed to all citizens across the country by the Supreme Court. 

Stay tuned!  - ted

04/22/2008. Court Narrows Scope of the Exclusionary Rule.

State v. Joseph Panarello, No. 2007-554 (2008). This decision resolves a classic conundrum regarding the scope of the exclusionary rule. When the police violate someone's constitutional rights, and find evidence as a result, the evidence is suppressed. What happens if the police violate someone's constitutional rights, and the person reacts by committing a new crime - is the conduct suppressed?

The State conceded that the police made an unlawful warrantless entry into Panarello’s home, in violation of Part I, Article 19 of the State Constitution. The State, however, appealed from the trial court’s decision to suppress evidence that Panarello reacted to the unlawful intrusion by pointing a gun at a police officer.

In an issue of first impression, the court joined “the overwhelming weight of authority” by adopting a “new crime exception” to the State Constitution’s exclusionary rule. Just as the police need to be deterred from violating the constitutional rights of citizens... citizens need to be deterred from taking the law into their own hands.

Thus, the trial court was wrong to suppress the evidence. Nevertheless, the court affirmed the trial court's order, because the prosecutor never argued the existence of a "new crime exception" to the trial court. Just as the game of Monopoly has a card entitled "Bank Error in Your Favor"... Panarello wins his case because of a card in the criminal justice deck entitled "Prosecutor Error in Your Favor."  Read the State v. Panarello decision.

04/08/2008. New Weapon for War on Marijuana Users.

In this most unfortunate decision... the Court upheld the right of the police to make a warrantless entry into a private home, based on the smell of burning marijuana.  Thus, police were allowed to enter a private room without a warrant where the circumstances presented no emergency and indeed, presented no risk whatsoever of injury to any person. State v. Luis A. Rodriguez, 945 A.2d 676 (N.H. April 8, 2008).While investigating an unrelated matter, police officers smelled the odor of “burning marijuana” emanating from a particular hotel room. The officers knocked on the door and eventually gained entry by threatening to forcibly open the door. Inside, the officers observed drugs and drug-related material, at which point they secured the room and obtained a search warrant.

Under Part I, Article 19 of the State Constitution, warrantless entries into the home are per se unreasonable and illegal unless within the narrow confines of an exception to the warrant requirement. The Court held that this warrantless entry was justified by probable cause and exigent circumstances, because possession of marijuana was a jailable offense, not a minor offense; because the odor of burning marijuana, as opposed to burnt marijuana, represented the destruction of evidence; ...

and because the hotel room had indoor plumbing, further facilitating the ready destruction of evidence!

Yes, the Court actually relied on indoor plumbing. This may give comfort to the many families in NH who will retain their right to privacy because they still haven't installed indoor plumbing.

Justice Hicks dissented. He noted that the expectation of privacy of a hotel room occupant is equivalent to that of an occupant of a private home, and found it “unsettling” that the precedent would allow a warrantless entry into a private home based upon similar facts. Read Court's Decision in State v. Luis Rodriguez.

In State v. Solomon, 943 A.2d 819 (Mar. 20, 2008), Attorney Ted Lothstein persuaded the New Hampshire Supreme Court that the trial court violated Solomon's right against double jeopardy under the New Hampshire Constitution by attempting, without manifest necessity, a mid-trial substitution of judges in a bench trial.  Ted Lothstein briefed and argued this case before the state's highest Court.  News of this decision was published in the National Criminal Law Reporter, and received substantial local coverage, such as in the Concord Monitor and the Lawrence (Massachusetts) Eagle-Tribune.

Solomon, charged with simple assault, began his bench trial before Derry District Court's Judge Coughlin. In the middle of the alleged victim's testimony, a legal issue caused a continuance, and then another continuance.

While waiting for the next court date, trial counsel opened his Bar News... and surprise! Judge Coughlin, a member of the National Guard, had departed for Iraq. Coughlin had requested another tour of duty there, by letter waiving his right to a 30 day notification period to settle his affairs.

Judge Stephen of the Derry District Court offered to start again or pick up where Coughlin left off, but trial counsel argued that Solomon's double jeopardy rights required completion of trial before the tribunal that started the trial - not just any judge, but Judge Coughlin. Judge Stephen declared a mistrial, over Solomon's objection that there was no manifest necessity under all the circumstances.

The New Hampshire Supreme Court agreed, primarily on the basis that the record did not show any attempt by Coughlin to notify the parties of his impending departure and attempt to bring the trial to completion. Thus, there was no manifest necessity to declare a mistrial, because the circumstances that brought about the tribunal's unavailability were not unavoidable.

That being said, its hard to fault Coughlin, not only because he did what he did for an "admirable" purpose as the Court put it, but because before this decision there was absolutely no law in NH.. and very little law anywhere else... regarding the double jeopardy right as applied in a bench trial.

Can judges hand off the baton like a relay race when trial becomes inconvenient for the first judge? A couple of courts have said yes, but most have said no, and now the New Hampshire Supreme Court joins them, determining that the following quotation from LaFave applies to judges just as it applies to juries:

"Every jury has its own character and the initial jury may be more favorably disposed to the defendant than the next jury."

Of course, those of us who practice in District Court... and pray for our case to be specially assigned to a particular judge... couldn't agree more! Read State v. Solomon

03/14/2008. No Cross-Examination on Prior False Accusation = New Trial!

Today, in an appeal briefed and argued by Attorney Ted Lothstein, the New Hampshire Supreme Court reversed an aggravated felonious sexual assault conviction because of the trial court’s refusal to allow the defense to cross-examine the complainant about her prior false accusation of another man. The decision resulted in significant coverage in the Boston Globe, Concord Monitor, and Foster's Daily Democrat.

In the past, the Court has repeatedly upheld the exclusion of such evidence, to the extent that defense lawyers have twice had to go to the First Circuit to get habeas relief. White v. Coplan, 399 F.3d (1^st cir. 2005); Ellsworth v. Warden, N.H. State Prison, 333 F.3d 1 (1^st Cir. 2003)(Andrew Schulman wins on federal habeas).

Today, in a case where Kornbrekke was accused of adult forcible rape in a “date rape” scenario, the Court held that the trial court erred in precluding cross-examination of the victim regarding her false accusation of a different man seven years prior. She had recanted her earlier accusation, and that case was nol prossed, but the prosecution now claimed that her earlier accusation was true, and the recantation false.

The Court rejected that argument: “Regardless of what characterization it is given, inconsistency exists between the complainant’s original allegation and her later recantation, and this inconsistency can be used to impeach her credibility.” Thus, the Court held that the cross-examination was admissible and not unduly prejudicial to the State under Rule 403.

The Kornbrekke decision constitutes helpful support for arguments that counsel should be able to cross-examine an adverse witness about a past act that reflects on his penchant for dishonesty. Different and more onerous legal standards apply when counsel seeks to introduce "extrinsic evidence," or evidence from witnesses other than the one being cross-examined, regarding the past act that reflects negatively on the witness's honesty.

After Kornbekke won his appeal, the prosecution decided not to try the case to a new jury. Instead, the prosecution dropped the charges! Read about it here, in the Concord Monitor.

Read State v. Karl Kornbrekke

02/28/2008. Sentencing Hearings, Remorse, and the Right Against Self-Incrimination.

In State v. John Burgess, 943 A.2d 727 (2008), an appeal briefed and argued by Theodore Lothstein, the Court analyzed whether a criminal defendant's "lack of remorse" could be used against him at sentencing, without violating the right against self-incrimination, when the accused's silence constitutes the only evidence of "lack of remorse."

Burgess was charged with attempted escape. He testified that he did tamper with his restraint device, and did run from the courtroom in the middle of his jury trial, but did not intend to escape. Not surprisingly, this jury trial swiftly led to a sentencing hearing. There, the trial judge said he took into account Burgess’s lack of remorse, and nonparticipation in the PSI, as aggravating sentencing factors.

The Court established the following principles of law:

1. The State Constitution’s (Pt I, Art. 15) privilege against self-incrimination applies not only in the pre-trial proceedings and trial, but extends throughout the sentencing process.

2. Lack of remorse is relevant to sentencing and the trial court may infer it from other facts and circumstances.

3. The trial court cannot punish defendant for standing trial rather than pleading guilty.

4. The trial court may punish a defendant for his false trial testimony.

5. BUT the trial court “may not constitutionally increase defendant’s sentence because he refuses to admit guilt after conviction.” “[U]nder our sentencing scheme, denying a defendant leniency simply because he fails to speak and express remorse is equivalent to penalizing him for exercising his right to remain silent.”

6. The trial court may not make an end run around proposition #5 by reasoning that defendant’s silence after conviction reflects his lack of remorse or lack of potential for rehabilitation. (Here, the Court recognizes a split of authorities, rejects the bad cases, and follows the good ones).

7. Proposition #5 is LIMITED by two substantial caveats, as follows.

8. First, proposition #5 holds only for those defendants who go to trial. If D pleads guilty, but remains silent at sentencing, the trial court CAN justify a “denial of leniency” based on that silence and failure to express remorse.

9. The second caveat is more complicated and can only be resolved on a case by case basis. Some trial defenses, notably mental state defenses, are not necessarily inconsistent with expressing remorse.

Some examples (from the author, not from the opinion): A person can claim self-defense, necessity or other justification defense, but still express remorse for the injuries suffered by the victim. A person can claim entrapment but still express remorse for getting involved in any manner in the drug trade.

10. To work through an example: A person charged with aggravated DWI resulting in a collision with serious bodily injury can claim she was not impaired when she drove her vehicle, but still express remorse for causing a motor vehicle collision resulting in the grave injuries suffered by the occupants of the other vehicle. Thus her silence at sentencing following an unsuccessful impairment defense at trial could be used against her.

If that same person testified that she neither was impaired nor caused the collision, I read Burgess as holding that the trial court in sentencing may not hold her silence at sentencing against her. The only elements of the offense left are operation, vehicle and public way and it would be absurd for someone to express remorse for operating a vehicle on a public way.

11. Finally, a sentencing court can hold defendant’s nonparticipation in a PSI against defendant, but limited as follows. Burgess did not even show up for his PSI, and this complete lack of nonparticipation the trial court properly could infer lack of amenability to rehabilitation.

Lawyers should encourage their clients to appear for the PSI and If a client participates in the PSI, but refuses to discuss the offense or background facts that could elevate the offense or establish other criminal liability, that silence cannot be used against defendant at sentencing. Note that the skilled lawyer must now take into account the principles in paragraphs 8-10 above in advising a client what she should talk about, and what she should not talk about, during the PSI.

Read State v. Burgess