6. Appeals & Vacating a Plea

6.1 Appeals to Superior Court

A standard first offense DWI is a Class B Misdemeanor. Therefore, there is no right to a jury trial.

All aggravated DWIs, and subsequent DWIs are Class A misdemeanors (and carry mandatory jail time). As a Class A misdemeanor, there is a right to jury trial.

If, upon conviction at District Court, the defendant appeals for a de novo trial to Superior Court, the sentence will be stayed, except for the license loss, which takes place immediately[1].


6.2 Appeals to Supreme Court

Bail/release from custody “shall” be granted pending appeal to the Supreme Court in misdemeanor cases[2].  However, in a felony case, there is a presumption against release[3].

Appeals to the Supreme Court for a DWI conviction are a “mandatory appeal”, meaning the Supreme Court must accept the appeal. The appeal must be filed within 30 days of the date of sentencing[4].


6.3 Appealing an ALS decision

6.3.1 Appeal to director

An ALS decision of a Hearing Examiner can be filed within 10 days of the decision for a paper review, to be decided by the Director. The review shall determine whether the ruling is erroneous as a matter of law or cannot be sustained by the facts as presented at the hearing[5].


6.3.2 Appeal to Superior Court

An appeal to Superior Court must be made within 30 days of the date of the ALS decision[6]. The burden of proof shall be upon the appellant to show that the decision of the director or agent was clearly unreasonable or unlawful, and all findings of the director or agent upon all questions of fact properly before him or her shall be deemed to be prima facie lawful and reasonable. The order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that the order is unjust or unreasonable[7].


6.3.3 Appeal to Supreme Court

The Supreme Court will “defer to the trial court's factual findings, provided there is evidence in the record to support them. However, we review the trial court's application of the law to the facts de novo”(original citations omitted)[8].


6.4 Vacating a Previous Plea

If a driver is charged with a subsequent DWI, sometimes, the best defense is to vacate the first plea. A plea to DWI (and every other crime) must be “knowingly, voluntary, and intelligent”[9].

The State must prove by clear and convincing evidence that the original plea was valid[10].  If counsel wishes to vacate a previous plea, it is best to obtain the oral record/colloquy (if still available), and the acknowledgement/waiver of rights.

There are three instances in which a previous plea or conviction may be successfully vacated: 1: Where the client was pro se, 2: Ineffective assistance of counsel, 3. No valid waiver of right to counsel.


6.4.1 Right to Counsel

In crimes for which the right to counsel is guaranteed, the Defendant is entitled to additional safeguards. In Faretta v. California, 422 U.S. 806 (1975), the U.S. Supreme Court held that a waiver of the right to counsel must be made with sufficient awareness of the “dangers and disadvantages of self-representation.” In  Patterson v. Illinois, 487 U.S. 285 (1988), the Court focused on whether the Defendant was made aware of his right to counsel at the particular stage of the proceedings and of the possible dangers of entering a plea without counsel.

The Montana Supreme Court has held[11], that the statement “if you plead guilty, you waive your right to counsel ….” is not a valid waiver. The Court concluded that a judge should cover and explain the waiver issue in a separate question rather than make it part of the consequence of pleading guilty. “The difference between, ‘by pleading guilty you waive your right to counsel,’ and ‘do you waive the right to counsel?’ is important ….” and  “only the latter provides the defendant with the opportunity to affirmative[ly] and expressly waive the right. Combining the two issues into one affirmative statement increases the possibility that an unrepresented defendant may become confused and decreases the likelihood that she will be able to specifically, voluntarily and knowingly waive her right to counsel as Montana law requires.[12]


6.4.2 Vacate Pro Se

Besides the Arsenault case, look at Boykin v. Alabama, 395 U.S. 238 (1969). Defendant must make valid waiver of privilege against compulsory self-incrimination, right to trial, and confrontation clause rights.


6.4.3 Vacate for Ineffective Assistance of Counsel (IAC)

To vacate after a trial, the Defendant must prove that counsel’s performance fell below an objective standard of reasonableness, and that counsel’s deficient performance prejudiced the defendant. This requires a showing that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different[13].

To vacate a plea based upon IAC under the Federal constitution,  the Defendant must show that defense counsel’s performance fell below that of an ordinary fallible attorney, and that there is a reasonable probability that, but for his attorney’s error, the defendant would not have entered a guilty plea and would have insisted on going to trial[14].

To vacate for IAC under the State constitution, the Defendant must show that counsel grossly misinforms the defendant about the collateral consequences of a guilty plea, that the Defendant relied on the advice, and that there was a reasonable probability that the defendant would not  have plead guilty but for the erroneous advice[15].


6.5 Expungement / Annulling the Record of DWI

Under N.H. RSA 265-A:21, a DWI cannot be annulled until 10 years after the date of conviction. However, any record thus annulled shall be retained in a permanent file, to be opened only for purposes of sentencing in the case of an offense under RSA 265-A:3[16].

However, a DWI conviction can be reduced to a violation one year after the date of conviction[17].

[1] N.H. RSA 265-A:26(II)

[2] N.H. RSA 597:1-a(IV)

[3] N.H. RSA 597:1-a(III)(a)

[4] N.H. Sup. Ct R. 7(1)(C)(2)

[5] N.H. RSA 265-A:33

[6] N.H. RSA 265-A:34(II)

[7] N.H. RSA 265-A:34(III)

[8]Saviano v. Director N.H. Div. of Motor 151 NH 315, 318 (2004)

[9]State v. Aresnault, 153 N.H. 413 (2006)

[10]Id. at 417-418.

[11]State v. Howard, 72 Crim.L.Rep. (BNA) 265 (Mont. 2002)

[12] As cited in Defending Drinking Drivers, Patrick Barone, (2011) Ch. 5 pg. 49 (Hereafter referred to as Barone)

[13]Strickland v. Washington, 466 U.S. 668, 688-694 (1984)

[14]Hill v. Lockhart, 474 U.S. 52, 59 (1985)

[15]State v. Sharkey, 927 A. 2d 519 (2007)


[17] N.H. RSA 265-A:18(I)(a)(6)