Pre-trial Defenses

7. DWI Related Criminal Procedure

7.1 Pre-Trial Motions Practice

There are certain motions that must be made prior to trial to protect all of the Defendant’s rights. You can see copies of these motions in the Appendix.

The following issues should be addressed:

Notice of public way, Requirement ofIntoxilyzer operator’s attendance at trial, Requirement of phlebotomist & certifying scientist’s attendance at trial, Demand to preserve any blood and/or urine sample, and demand for formal proof of public way.


7.2 Discovery Requests

Besides the standard District Court 2.10discovery letter, there are specific items you will want in a DWI case.


7.2.1 All Cases

In all cases, try to get cruiser videos if they exist, as well as booking videos. Often they do not exist (or are not very useful),  but if they did exist at one point, and have since been destroyed, you may have a motion to suppress/dismiss remedy. Also, determine what year/training manual the officer uses for DWI detection.


7.2.2 Breath Cases

In breath cases, you may want copies of the arresting officer’s certification to operate the Intoxilyzer, as well as certification that the machine was certified on the day in question.

You also should request the presence of the Intoxilyzer officer. While the statute in question may be unconstitutional, certain judges will uphold it. If you do not know the policy of your local prosecutor and court, then you should error on the side of caution and request the presence of the operator.


7.2.3 Blood Cases

You must notify the crime lab that you want them to preserve the blood sample for independent analysis. You generally have 30 days to do so, but as long as they still have the blood at the time of your request, it shouldn’t be destroyed.

In blood cases, you need the complete file from the State Crime Lab/ Department of Safety.

This information includes:

The evidence examination request form.

Chain of custody form.

The Daily Worklist for Alcohol Analysis/run, which shows the standards used, Gas Chromatograph values associated with control samples, and the two actual values for the driver’s blood (From which you can determine if any rounding occurred).

The chromatograms, which can show any irregularities, or unknown substances besides ethanol in the test.

You also want information regarding which “blood kit” was used, so you can determine what types of tubes and swab were used, as well as any expiration dates.

Similar to breath test cases, you should specifically request at trial the attendance of the Certifying analyst, and any person who drew the blood.


7.2.4 Subsequent Offense Cases

If the client is charged with a subsequent offense, you may want certified copies of the underlying conviction.

Further, the underlying prior conviction must be from New Hampshire or a “reasonably equivalent offenses in an out-of-state jurisdiction.” The legislature did not define “reasonably equivalent”, however, the N.H. Supreme Court has addressed it.

In State v. Hull, 149 NH 706 (2003), the Court used the formula of “The text of the elements of the law of the other jurisdiction shall be analogous but not necessarily exactly the same as the elements of the statutes in New Hampshire[2].”

Get a copy of the underlying conviction, to see exactly what the Defendant was previously convicted of. Many states have numerous types of DWI statutes.  Some will be equivalent, yet other subsections of the statute likely are not. Many states define impairment differently, some states may define operation differently, and some states, such as California, do not have a public way requirement.

Practice Note: Massachusetts convictions under their present statute will be reasonably equivalent as a matter of law, under Hull.


7.2.5 Drug Recognition Expert (DRE) Paperwork

If the arresting officer is either a DRE, or a DRE evaluation was performed on the Defendant, you will want the “Rolling log”, DRE face sheet, and paperwork showing the officer is presently certified as a DRE.


7.3 Motions to Suppress

7.3.1Invalid Stop /No Reasonable Articulable Suspicion

In order to justify a stop, the Fourth Amendment  and Part I Article 19 require the police to have reasonable and articulable suspicion that the defendant had committed, is committing, or is about to commit a crime[3].


7.3.2Expanded Scope of Stop

Assuming the initial stop was valid, the New Hampshire Supreme Court has repeatedly held, “that the scope of an investigative stop must be carefully tailored to its underlying justification, must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Any expansion of the scope of [a motor vehicle] stop to include investigation of other suspected illegal activity is [constitutionally] permissible… only if the officer has a reasonable and articulable suspicion that other criminal activity is afoot.[4].”


7.3.3Invalid Roadblock Stop

A DWI checkpoint is a warrantless seizure. For the State to get approval for a roadblock, they must petition the Superior Court. So, your first step in disputing the roadblock is to attempt to get the petition that was filed, as well as the Court order.

“265:1-a Sobriety Checkpoints. – Notwithstanding any provision of law to the contrary, no law enforcement officer or agency shall establish or conduct sobriety checkpoints for the purposes of enforcing the criminal laws of this state, unless such law enforcement officer or agency petitions the superior court and the court issues an order authorizing the sobriety checkpoint after determining that the sobriety checkpoint is warranted and the proposed method of stopping vehicles satisfies constitutional guarantees.”

The N.H. Supreme Court addressed the constitutionality of the roadblock Statute in State v. Hunt, 924 A. 2d 424, (2007). The Court noted that advance notice was given to the public, and used a balancing test, finding the roadblock constitutional. “We stated that the validity of a sobriety checkpoint depends upon two factors: (1) whether it is more effective at advancing the public interest than other, less intrusive means; and (2) whether its value outweighs the degree of intrusion it involves.[5]

For support of whena DWI checkpoint is unconstitutional, seeState v. Koppell[6]. “The validity of these roadblocks, however, depends first, on whether they are more effective toward advancing this interest than other, less intrusive means; and second, on whether their value outweighs the degree of intrusion they involve.” Often, the checkpoints do not lead to many DWI arrests. So, in your case, see how many arrests for DWI were made at the checkpoint, as compared to how many drivers were stopped, as well as how many drivers are typically arrested on nights where no checkpoint is used. You may be able to dispute the legality  of the roadblock based upon its ineffectiveness. For example, in the Koppel, the roadblock lead to an arrest for DWI of 1 out of 100 drivers stopped[7].

Roadblocks may be permissible under the 4th amendment of the Federal Constitution again when certain guidelines are met. See Michigan v. Stitz, 496 U.S. 444 (1990) upholding a checkpoint where there were guidelines regarding its operation, site selection, and advance publicity.

However, in City of Indianapolis v. Edmond, 531 U.S. 32 (2000) the Court invalidated a checkpoint. The Court stated: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. 440 U. S., at 659, n. 18. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.[8] to Accidents

Officers generally are allowed to speak with a person after an accident without it constituting a seizure (absent objective reasons for the person to believe they are free to leave)[9].  The Court recognized the need for police accident investigation as a tool in the effective enforcement of law and preservation of safety[10]. Community Caretaking

In certain circumstances, an officer can stop and approach a vehicle / person, and it not arise to the level of a constitutional seizure. “So long as a reasonable person would feel free to leave, or terminate the encounter, the citizen is not seized under Part I, Article 19 of the State Constitution”[11].

Two factors that can convert the encounter to a seizure are when the officer uses physical force, or a show of authority[12]. “Circumstances indicating a `show of authority' might include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.[13]” Asking for a license, and using a spotlight, which would allow the officer to see what he would in the day, does not automatically convert the stop into a seizure[14].  If the officer indicates through words that the person is not free to leave, such as by saying “Hey, you, stop[15]”, that will likely be considered a seizure.

When the officer uses his takedown/ emergency cruiser lights, that often will be considered a seizure because no reasonable person is free to leave. “Even though law enforcement officers are authorized to activate emergency lights for a variety of reasons, including "when parked on or adjacent to the highway to warn other traffic of a hazard or obstruction," N.H. RSA 266:78-f (Supp.2008), doing so behind a parked automobile often constitutes a seizure[16].”  “The reason is obvious — drivers simply are not free to disregard blue lights. See RSA 265:3, I (Supp.2008) (entitled "Obedience to Police Officers"); N.H. RSA 265:4 (2004) (criminalizing purposeful neglect of signal to stop or "willful[ ] attempt to elude pursuit").[17]” However, in Steeves, the Court managed to find there was not a seizure when the officer activated just his rear-facing takedown lights. “Although the rear-facing blue lights may have been visible to the defendant, the totality of circumstances would have communicated to "[a] reasonable person ... that the officer was... [just] checking to see what was going on and to offer help if needed, and not "that [the defendant] was not free to leave.[18].” So, while not very helpful for DWI cases, if a client is charged with disobeying an officer, and the officer only used his rear-facing lights, that person was free to leave, at least according to the logic of Steeves.

Turning to community caretaking, the purpose of the warrant exception is for the officer to help drivers, or to safeguard property[19], not to investigate crime.

For a community caretaking stop to meet constitutional muster, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion[20].” The facts are judged “by an objective standard: would the facts available to the officer at the moment of the seizure warrant a person of reasonable caution to believe that the action taken was appropriate. To determine whether the grounds for a particular seizure meet constitutional requirements, we balance the governmental interest that allegedly justified it against the extent of the intrusion on protected interests. Finally, to be valid under the community caretaking exception, the seizure must be totally separate from the detection, investigation or acquisition of evidence relating to a criminal matter.[21]"

Examples of community caretaking stops include: Erratic driving where the officer believes there can be a medical issue[22], to warn the driver of an icy road, and to warn the driver of a vehicle problem which could endanger him or other drivers[23].

The United States Supreme Court has set forth the following factors for an officer to use a suspicionless vehicle stops to protect the person’s well-being:

1. The nature and level of any distress exhibited by the individual

2. The location of the individual

3. Whether the individual was alone and had access to assistance independent of an offer by the officer

4. The extent to which the individual, if not assisted, may have presented a danger to himself or others[24]


7.3.5. Anonymous/ Citizen Tips

There are two types of tips that may lead an officer to stop a vehicle; Anonymous tips, and tips where the person making the call/report is identified. Anonymous Tips

When a tip is from an anonymous caller, the issue is how reliable the tip is. The Court adopts the “totality of the circumstances” test[25].

The following factors should be used:

Amount of innocent details observed and/or corroborated,

Time interval between receiving the tip and locating the vehicle,

Contemporaneous eyewitness observations,

How much sufficient detail is included in the tip[26] Identified Caller Tips

When the caller/reporter identifies themself, in theory, the tip is more reliable. When there is an identifiable witness, the police do not have to inquire into or demonstrate the witness’s credibility.[27]

However, "the tip [must] contain[] sufficient indicia of reliability to justify the stop."[28]


7.3.6 Suppress Blood Test or Medical Records When Results were Unlawfully Obtained

See Chapter Lawfully Obtained Sample.


7.3.7 Motion to suppress Preliminary (Portable) Breath Test - PBT

There are statutory regulations in place dealing with a preliminary breath test.

N.H. RSA 265-A:15 Preliminary Breath Test. –
I. Any law enforcement officer, authorized agent, or peace officer, who has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A, having reasonable grounds to believe that a person has been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat upon the public waters of the state while under the influence of intoxicating liquor or controlled drug or while the person's alcohol concentration was 0.08 or more or in the case of a person under the age of 21, 0.02 or more or in the case of a person licensed to operate and operating a commercial vehicle or operating a commercial vessel and licensed pursuant to RSA 270-E:22 at the time of the offense, 0.04 or more may, without making an arrest, request that such person submit to a preliminary breath test for alcohol concentration to be administered by the officer. The results of any test administered under this section may be introduced into evidence in a court for any relevant purpose. Failure to submit to the test shall not constitute a violation of this chapter. Evidence of a failure to submit to a preliminary breath test shall not be admissible in court in any prosecution under this subdivision, except for the purpose of determining whether the officer had probable cause to arrest the person. The provisions of this section shall not limit the introduction of any other competent evidence bearing on the question of whether a person charged with violating RSA 265-A:2, I(a), RSA 265-A:2, II, or RSA 265-A:3 was under the influence of intoxicating liquor or any controlled drug. Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 265-A:4. The police officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 265-A:4. The results of the test shall be furnished immediately to the person tested by the police officer administering the test and in writing, if requested.
II. No device may be used to give a chemical test under the provisions of this section unless it has been approved as to type and make by the department of safety.
III. The commissioner of the department of safety shall adopt rules, pursuant to RSA 541-A, relative to methods and procedures for evaluation and approval of preliminary breath test devices.

Besides meeting all of those requirements, defense counsel can still argue the reliability of such test. Things that make the test unreliable include a lack of 20 minute observation period (some instruction manuals will specifically state the officer should wait a fixed amount of time, so that the machine does not detect mouth alcohol), no independent sample, typically only one sample is taken, no specificity to ethanol, and no printed results. One may seek to have a Daubert hearing on the reliability of the PBT.

In my opinion, the strongest argument against the admissibility of the PBT is that it does not preserve an independent sample. See  In Re Opinion of Justices, 2 A. 3d 1102,1107 (2010), in dealing with the proposal of eliminating a preserved sample, the Court held the proposed statute “which would eliminate the requirement that a second breath sample be preserved, violates the Due Process Clause of the State Constitution.”


7.3.8 Suppress Field Sobriety Tests(FSTs) in Violation of Informed Consent Statute

Field Sobriety Tests (FSTs) administered prior to arrest or custody do not fall within the special requirements set forth in RSA 265-A:8(II). However, before any post-arrest physical test (FST) specified in RSA 265-A:4 is given, the law enforcement officer, authorized agent, or peace officer shall inform the defendant of the consequences of the defendant's refusal to comply with the law enforcement officer's, authorized agent's, or peace officer's instructions for a post-arrest physical test[29]. If the law enforcement officer, authorized agent, or peace officer fails to comply with the provisions of this section, the test shall be inadmissible as evidence in any proceeding before any administrative officer and court of this state[30].

The officer typically abides by this statute by reading DSMV Form 426 (The ALS warnings).

Similar to Miranda requirements, one may be arrested or in placed into custody, without actually being arrested, or handcuffed[31]. An "arrest'' is the taking of a person into custody in order that he may be forthcoming to answer for the commission of a crime[32].  An arrest "is effected by an actual or constructive seizure or detention of the person arrested or by his voluntary submission to custody, both of which subject him to the actual control or will of the person making the arrest.[33]" "[N]o magic words or the filing of specific charges were required.[34]" .


7.3.9 Motion to Suppress Opinion as to Drugs

As discussed later in this book, it takes extensive training before an officer can be deemed a Drug Recognition Expert (DRE). Accordingly, one can argue that an officer who lacks this training cannot detect drug impairment.

While officers have training in many of the Field Sobriety Tests used in drug detection, their training tells them that the FSTs are reliable to measure a BAC above .10. The FSTs should not be used by an untrained officer to determine if someone is under the influence of drugs.

The New Hampshire Supreme Court has held that a police officer trained in the methods of the SFST’s can testify to the impairment by alcohol, and even though the tests are scientific, the testimony is lay testimony[35].

The underlying reason that it is lay testimony, is: “It has been the law in this jurisdiction for more than a century that[] [i]ntoxication is a fact open to the observation of every man; and no special skill or learning is requisite to discern it. Untrained laymen have always been permitted to testify as to intoxication on the basis of sight, smell, speech and locomotion. It is also a commonly recognized fact that the consumption of alcohol impairs coordination, judgment and alertness.[36]

While the Court noted that intoxication may be within everyone’s knowledge, drug impairment is extremely more difficult, as can be seen with the extensive training required to be a DRE. Further, the Statute speaks of “controlled drugs.” Accordingly, I would argue that any evidence involving non-controlled drugs is irrelevant. What lay person can distinguish between impairment from a drug as opposed to a controlled drug?

New Hampshire Rule of Evidence number 702 states:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

Accordingly, only an expert should be able to opine whether someone is under the influence of a controlled drug.


7.3.10 Failure to give an Independent Test

Any person to whom RSA 265-A:4 is applicable shall have the right at his or her own expense to have similar tests made by a person of his or her own choosing who is competent to conduct the tests, as determined by the commissioner of the department of safety under RSA 265-A:5, and shall be so informed by the law enforcement officer at the same time as the person is requested to permit a test under the provisions of RSA 265-A:4[37].

If the officer fails to accommodate any request, there is an argument of due process violation, as well as a statutory right. Often, the Hospital is the entity denying the right, possibly for fear of liability. However, because the hospital will almost always administer the test at the direction of law enforcement officials, one may be able to shift the blame onto the officer for failing to direct the hospital to administer the test[38].

Although N.H. RSA 265-A:7 includes the language “The failure or inability of an arrested person to obtain an additional test shall not preclude the admission of any test taken at the direction of a law enforcement officer, authorized agent, or peace officer.”, the New Hampshire Supreme Court, in interpreting this language, has held it is not applicable when the failure is the result of the State.

“We reject the State's argument that the results should not be suppressed because RSA 265:86 provides that ‘[t]he failure or inability of an arrested person to obtain an additional test shall not preclude the admission of any test taken at the direction of a law enforcement officer.’ We interpret this provision to exclude situations where the failure or inability of the defendant to obtain an additional test is caused by the State[39].”

7.3.10 Suppress  Horizontal Gaze Nystagmus (HGN) Test

In New Hampshire, HGN is admissible, without an expert witness, as long as the police officer can lay the proper foundation[40]. Generally, the officer must demonstrate he has proper NHTSA training, and administered the test according to the training.

In my experience, there is a split among Judges as to whether the failure to properly administer the test goes to weight of the7.3.11 Miranda Violation

Mirandawarnings are required when a defendant is subjected to custodial interrogation[43]. This means that the defendant must be both in custody, and have been interrogated. Custody is usually defined as handcuffed, or arrested. However, a show of force or otherwise showing the person was not free to leave may amount to custody.   “In the absence of formal arrest, the trial court must determine whether a suspect's freedom of movement was sufficiently curtailed by considering how a reasonable person in the suspect's position would have understood the situation.”[44]

Interrogations are generally any questions related to the crime, except for booking questions.

Further, Miranda waivers must be proved beyond a reasonable doubt to be voluntary, knowing, and intelligent[45]. There is a "presumption that a defendant did not waive his rights." A waiver need not be express to be valid. Rather, "we must ascertain whether, under the totality of the circumstances, the defendant's understanding of his rights coupled with his conduct supports the trial court's ruling that he otherwise voluntarily, knowingly, and intelligently waived his rights beyond a reasonable doubt." "The burden lies with the State to demonstrate beyond a reasonable doubt that a defendant has knowingly and voluntarily waived his Miranda rights."[46]

If the State is arguing that a person is impaired due to alcohol, it could very well have a problem showing that person effectively waived their right. Alternatively, defense counsel may argue because there was a valid Miranda waiver, that person was not impaired by alcohol.


7.3.12 Suppress when Independent Test does not Corroborate

If you get your breath test (or other chemical test) independently tested, there are rules promulgated for a margin of error to confirm the test. If the result is outside the margin of corroboration, the test is not corroborated. In such a case, you may seek to suppress the results of the test.

Saf-C 6305.09  Interpretation of Results.

(a)  Captured samples of breath collected in accordance with Saf-C 6302.02(e) and Saf-C 6304.01 and analyzed by an independent laboratory in accordance with Saf-C 6305.03-08 shall be used to corroborate the reported value obtained by the approved instrument.

(b)  The result of the breath test shall be considered to becorroborated when the reported value of the approved instrument iswithin the deviation limits for the alcohol concentration levels outlined below:

(1)  For alcohol concentrations less than 0.05 g/210L and the deviation does not exceed 0.01g/210L;

(2)  For alcohol concentrations equal to 0.05 g/210L but less than 0.10 g/210L and the deviation does not exceed 0.02g/210L;

(3)  For alcohol concentrations equal to 0.10 g/210L but less than 0.15 g/210L and the deviation does not exceed 0.03g/210L;

(4)  For alcohol concentrations equal to 0.15 g/210L but less than 0.20 g/210L and the deviation does not exceed 0.04g/210L; and

(5)  For alcohol concentrations equal to or greater than 0.20 g/210L and the deviation does not exceed 0.05g/210L.

(c)  When the result of the breath test is not corroborated in (b) above, further evaluation shall be required in order to determine the weight to be given to the reported value of either the approved instrument or the independent laboratory.


7.4 Motions to Dismiss

In certain cases, a proper remedy will be to dismiss the entire charge. Additionally, if the motion to suppress is dispositive, a motion to suppress can be a motion to dismiss as well.


7.4.1 Speedy Trial

The New Hampshire Supreme Court has articulated a four part test to determine whether a defendant’s right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; (4) the prejudice to the defendant caused by the delay[47]. A delay exceeding 9 months, or possibly 6 months[48], is presumptively prejudicial[49].


7.4.2 Insufficient Complaint

The Defendant is entitled to know specifically what the State is alleging happened, so that the Defendant is fairly put on notice as to what the State must prove. The Defendant is also entitled to due process to be free from Double Jeopardy[50].


7.4.3 Statute of Limitations

Except as otherwise provided, for misdemeanor offenses, the Statute of limitations in New Hampshire is one year[51]. For felonies, the Statute of Limitations is 6 years[52], except murder, which has no Statute of limitations[53].


7.4.4 Video Evidence Destroyed / Lost – Spoliation

“Where evidence in a criminal trial is lost or destroyed, the court must examine three factors in order to ascertain whether the defendant’s due process rights have been violated: (1) whether the State acted in good faith when it lost or destroyed the evidence; (2) whether the evidence was material to the defendant’s guilt or degree of punishment; and (3) whether the defendant was prejudiced by its loss or destruction.” State v. Baillargeon, 127 N.H. 782, 784 (1986); see also State v. Michaud, 146 N.H. 29 (2001) (requiring defendant to establish prejudice even if State is culpably negligent).

To satisfy the first prong of this test, “the State has the burden to demonstrate that it acted both with good faith, in a sense that it was free of any intent to prejudice the defendant, and without culpable negligence.[54].”

In determining whether the loss of relevant evidence has resulted in denial of due process, the State has the burden to demonstrate that it acted both with good faith, in the sense that it was free of any intent to prejudice the defendant and without culpable negligence.[55]

One Court has held that the destruction of videotape of a DWI suspect is presumed to be favorable absent showing to contrary[56].


7.5 Affirmative Defenses

Affirmative defenses tend to be rare in DWI defenses. However, there are some instances where the facts may warrant such a defense.


7.5.1 Involuntary Intoxication

Voluntary intoxication is, obviously, not a defense to DWI. However, if the client was drugged without his knowledge, or possibly took medication (such as Ambien) that had an unintended side-effect, involuntary intoxication may be a defense. For crimes in general, the State must prove a “voluntary act.” A person is not guilty of an offense unless his criminal liability is based on conduct that includes a voluntary act or the voluntary omission to perform an act of which he is physically capable[57].


7.5.2 Competing Harms

An example of a competing harms defense in DWI could present itself in a situation where the Defendant is at home drinking, and either the Defendant, or someone else, suffers an emergency and must be brought to the hospital. In order to save the other person’s life, the person must then drive the person to the hospital (assuming it would be quicker than an ambulance or taxi which would take time to get to the person in question).

Conduct which the actor believes to be necessary to avoid harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged. The desirability and urgency of such conduct may not rest upon considerations pertaining to the morality and advisability of such statute, either in its general or particular application[58].


7.6 Unfit For Trial (Competency)

When the Defendant may be incompetent to stand trial, Defense counsel has a professional obligation to raise a competency motion with the Court. The matter will be stayed, pending a competency determination by the Judge, after an evaluation is done.

The test of competency in 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.[59]

[1]State v. Lougee, 137 NH 635, 636 (1993)

[2]Id at 709

[3]State v. Giddens,922 A.2d 650 (2007); Terry v. Ohio, 392 U.S., 1, 20-21 (1968)

[4]State v. Hight, 146 N.H. 746, 748-49(2001).State v. Livinston, 153 N.H. 399, 404 (2006); State v. McKinnon-Andrews, 151 N.H. 18, 23 (2004)

[5]Id at 428

[6]State v. Koppell 127 N.H. 286 (1985)

[7]Id at 292

[8]Id at 41-42

[9]State v. Riley 126 N.H. 257 (1985)

[10]Id. at 263

[11]State v Licks, 154 N.H. 491, 493 (2006)

[12]Id at 493


[14]State v. Steeves, 972 A. 2d 1033, 1037 (2009)

[15]State v. Quezada, 141 N.H. 258, 260 (1996)

[16]Id at 1037.


[18]Id. (Original citation omitted)

[19]State v. Psomiades, 139 N.H. 480, 482  (1995)

[20]State v. Craveiro, 924 A. 2d 361, 364 (2007)

[21]State v. Craveiro, 924 A. 2d 361, 364 (2007)

[22]State v. Maynard, 114 N.H. 525 (1974)

[23]State v. Craveiro, 924 A. 2d 361, 365 (2007)

[24]Cady v. Dombrowski, 413 U.S. 433 (1973)

[25]State v. Sousa, 151 N.H. 297 (2004)

[26]Id. at 303-304.

[27]State v. Corey, 127 N.H. 56, 59 (1985)

[28]State v. Gowen, 150 NH 286, 289 (2003)

[29] N.H. RSA 265-A:8 (II)

[30] N.H. RSA 265-A:8 (III)

[31]State v Jennings, 929 a.2d 982, 986 (2007); State v. Turmel, 150 N.H. 377, 382-383 (2003)

[32] N.H. RSA 594:1

[33]State v. Murray, 106 N.H. 71, 73 (1964) See also State v. Riley, 126 NH 257 (1985) discussing an objective standard

[34]State v. Garceau, 108 N.H. 209, 211, 231 (1967)

[35]State v. Dahood,148 NH 723 (2002), State v. Cochrane, 153 NH 420 (2006)

[36]State v. Kelley, 986 A. 2d 620, 625 (2009) (original citations omitted)

[37] N.H. RSA 276-A:7

[38]See also the Opinion of the Justices 2 A. 3d 1102, 1106 (2010), “Given the current statutory scheme, we fear that the right of a suspect to have timely independent testing of his blood or urine is merely illusory.”


[39]State v. Sullivan 144 NH 541, 544 (1999)

[40]State v. Dahood 148 N.H. 723 (2002)

[41]State v. Dahood 148 N.H. 723, 733 (2002)

[42]State v. Cochrane, 153 NH 420, 424 (2006)

[43]State v. Locke, 149 N.H. 1, 813 A.2d 118 (2002); See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

[44]Id. at 6.

[45]State v. Plante, 133 N.H. 384, 386 (1990)

[46]State v. Duffy, 146 N.H. 648, 650 (2001) (original citations omitted)

[47]State v. Locke, 149 NH 1, 813 A.2d 1182, 1189 (2002)

[48]State v. Allen, 150 NH 290, 294 (2003)- Defendant charged with misdemeanor and not in Jail, Supreme Court assumed 6 months is prejudicial.

[49]State v. Fletcher, 135 NH 605, 607 (1992)

[50]State v. Johnson, 144 N.H. 175 (1999), and State v. Cote, 126 N.H. 514 (1985)

[51] N.H. RSA 625:8(I)(c)

[52] N.H. RSA 625:8(I)

[53] N.H. RSA 625:8(II)

[54]State v. Murray, 129 N.H. 645, 648 (1987)

[55]State v. Flagg, 154 N.H. 690,  691 (2007)

[56]Thorne v. Department of Public Safety, State of Alaska, 774 P.2d 1326 (1989)

[57] N.H. RSA 626:1

[58] N.H. RSA 627:3

[59]State v. Dana Champagne, 127 N.H. 266, 270 (1985), citing Dusky v. United States 362 US 402, 402 (1960)