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Bar News - January 14, 2011

Criminal Law: Crossing Borders: Five Differences between MA and NH Drunk Driving Cases


Nicholas Howie
For a new attorney, the most difficult part of the practice of law is the actual practicing part. You learn the facts of the law in law school; however, you are never truly able to grasp the practical side of the law until you get into the courtroom. In my first two years as an attorney, I was licensed only in MA and I practiced primarily criminal law, with a concentration on drunk driving cases.

Last year I joined the NH Bar and again focused my practice on drunk driving cases. Having two years of trial experience in MA, I figured I’d have a smooth transition to the practice in NH. However, I was sorely mistaken; yes, the law and the elements are essentially the same, but the practical side in NH has several key differences.

1. Terminology - OUI v. DWI

The first difference I noticed was the terminology. When I picked up my first case in NH, I called a colleague who had been practicing there for the past few years. When I told him I had just been retained to do my first NH OUI case, he said, "Up here it’s DWI." Hence, the first difference: in MA a drunk driving complaint will likely say, "Operating Under the Influence" (OUI). In NH the complaint will say, "Driving While Intoxicated" (DWI).

Once I had the terminology down, I noticed another key difference on my clients DWI complaint: it stated he was charged with "Aggravated DWI." In NH if your BAC (blood alcohol concentration) is .16 or more, or if you are driving 30 mph over the speed limit, or a serious bodily injury occurs while you are driving drunk, you will be charged with "Aggravated DWI" and face a mandatory jail sentence, if convicted. In MA, there is no such law.

2. Breath/Blood Test Access

Next, while on the subject of breath or blood tests, let me say that in NH you are able to gain possession of the actual breath test tubes and allowed to have them tested by a lab of your choice. In MA, although I am sure the technology is similar, there is no such freedom. Thus, as a defense attorney in NH, being able to test the samples is an essential tool in defending your client’s DWI case.

3. Administrative Suspensions

The next thing I noticed was the difference in the process followed in appealing your client’s initial license suspension. In NH, the ALS (Administrative License Suspension) allows you to appeal any suspension as long as it is filed within the 30-day appeal period. The ALS hearing requires the arresting officer to appear and give testimony as to the facts surrounding your client’s arrest. This allows you to cross-examine the officer prior to the actual criminal trial and can give you some key insights into the events that took place. In MA, you are only allowed to appeal a breath-test refusal, and such a hearing does not require the arresting officer to appear and is thus not as useful as the ALS hearing.

4. Pre-Trial Subtleties

Next comes the pre-trial plea-bargaining process. In NH, the police prosecutor may break down a case and allow your client to plea to reckless driving and dismiss the DWI charge. This is a great plea for your client and allows him or her to keep the toxic DWI charge off his/her record. In MA, although a district attorney does have the power to amend an OUI complaint in a similar fashion, I have never seen or heard of that happening and even if you suggest it, you will be immediately shot down.

5. Jury Trials

Finally, the trial, the most important part of any drunk driving case. In NH, for a typical DWI first offense, you do not have the right to a jury trial as there is no possibility of jail time. Even in an aggravated or repeat offender case the initial trial will be a bench trial in the district court; then, if your client is convicted, you will be allowed to appeal to the superior court for a de novo trial, which gives your client the right to a second trial in front of a jury. The difference in MA is that all drunk driving cases have the possibility of jail time, so you always have the right to a jury trial. Therefore, when handling a NH case, you may find yourself making the difficult decision of whether to plea or go to trial; this can make it difficult to develop a game plan for the upcoming trial date.

In the end, if you’re thinking of crossing the border into either MA or NH, make sure you seek advice from a seasoned attorney, or purchase the latest CLE in the state you are planning to practice in, to make sure you know what’s coming when you step into the courtroom for the first time. Just knowing the law is not enough to enable you to properly defend your clients’ rights, wherever you are planning to practice.

Nicholas Howie is an attorney in the Law Office of Patrick Shanley in Lowell, MA. He is a member of both the Mass. Bar and the NH Bar. He may be reached at or by calling 978-454-3322.

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