Defenses that work in all Criminal Cases including DUI (taken from my NH DWI BOOK)

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[1]. A delay exceeding 9 months, or possibly 6 months[2], is presumptively prejudicial[3].

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 what they must prove, as well as notice for his rights to be free from Double Jeopardy[4].


7.4.3 Statute of limitations

For misdemeanor offenses, the Statute of limitations in New Hampshire is one year[5]. For felonies, it is 6 years[6], except murder, which has no Statute of limitations[7].

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

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

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

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

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

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

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

New Hampshire Affirmative defenses (Taken from my DWI Book)

7.5 Affirmative Defenses

Affirmative Defenses tend to be rare in DWI defenses. However, there are a couple 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 their 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[1].

7.5.2 Competing Harms

An example of a competing harms defense in DWI could be where someone is at home drinking, and either the person drinking, 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[1].

7.6 Unfit For Trial

Once in awhile, the Defendant may be incompetent to stand trial. In this instance, 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.

[1] N.H. RSA 627:3

[1] N.H. RSA 626:1