The Felonies First Program in Superior Court

The Superior Court system in New Hampshire has been several years in implementing a Felonies First criminal program.  This space has written about the proposed change in the past.  It has finally come into being.  Essentially, the program does away with the probable cause hearing process and sends felonies to the Superior Court for first contact with the court system.  The theory is that the time spent in the District Court with arraignments, bail hearings and probable cause hearings is wasted time.  It is more efficient, the reasoning goes, to head felonies directly to the Superior Court.

The program has been in place for several months and has met with mixed success.  There has been a period of adjustment where the county prosecutor’s office has had to respond to requests for discovery and evaluate the case.  The true advantages and disadvantages of the system have been exposed.  The only advantages are that the process moves much more quickly.  In those cases that are very simple and the outcome is easily agreed upon, this saves time.  In all other cases there are problems that will take some time to resolve.

Felony cases are serious matters with serious consequences.  The minimum exposure for someone charged with a felony is 3½ to 7 years in the New Hampshire State Prison plus a fine.  That is no small matter.  In the former system, these cases would be discussed between the local police prosecutors and defense counsel.  They have an opportunity to see if the matter might be resolved as a misdemeanor or even a violation.  Decisions made by the police on the street with respect to charging is often done without any opportunity to reflect and think the decision all the way through.  The process of having an arraignment and bail hearing before probable cause hearing 30 days later gave the State a chance to see what the facts of the case really were and what the proper charging decision should be.  That opportunity for a non-superior court resolution to the case has now been taken away.  Instead, that period of reflection and communication with the arresting police department must take place after there has already been an arraignment in the Superior Court.

The Grand Jury process and its relative the probable cause hearing have been pretty much dispensed with.  While both procedures had a cost, they also gave defendants an extra measure of due process that would allow abuses of state discretion and “close calls” to be weeded out.  There were often times cases that probably would not have survived the reasonable doubt standard were stopped in the Grand Jury or probable cause system because the facts to support of probable cause was questionable.

Time will likely cause the system to adjust to the new way of doing things so that the delay for reconsidering the form of the charge and how it fits the facts to be attended to Superior Court.  The transition period will take some time.  It is hoped that those compromises of the rights of the accused will be corrected as well.  If not, this attempt at judicial economy will result in far more problems than it solves.

By: Kent Barker

Attorney Kent M. Barker practices Personal Injury, Family & Divorce, and Criminal Law at Winer & Bennett, LLP. To learn more about the Felonies First Program or receive expert legal counsel from Kent, call 603-882-5157. Visit our website at www.winerbennett.com.

Driving Privileges after DUI Conviction

In January of 2016, a new statute became effective in New Hampshire that allows individuals convicted of Driving Under the Influence, first offense, to apply for limited driving privileges in New Hampshire.  Individuals who qualify may request permission to drive on specific days and times in order to travel to obligations including work, job interviews or training, drug and alcohol treatment, school or to care for an ill family member.

This new law will permit many individuals to minimize the negative personal, professional and academic impacts following a conviction for DUI.  To learn more about how to apply for limited driving privileges, contact DUI defense attorneys Brenner Webb or Kent Barker today.

“DUI/Alcohol OR Drugs”

There was no mistaking what DUI, or driving under the influence, meant 20 years ago. Alcohol was the substance that prompted the arrest of impaired driving and the statutory scheme reflected that. There were technological improvements in the early 1980s that allowed breath alcohol to be tested through the breathalyzer machine. The Legislature established standards which set a prima facie or “on its face,” blood alcohol level reflecting impairment. Impairment by the use of alcohol became better defined among the law enforcement and defense bar communities.

That definition has gradually changed over the past ten years. The creation of synthetic drugs and the more widespread use of known but very powerful substances have lead the legislature and law enforcement community to react. Driving under the influence includes being influenced by any substance and not just alcohol. This phenomenon has intensified with the advent of pharmaceutical opioid creations such as Oxycontin. This drug has been prescribed and some would say over prescribed during the past five years. The pharmaceutical industry is attempting to get that situation under control right now.

The question of what the change in substance use and abuse means to the defense bar is an ongoing discussion. There are no “prima facie” standards for any substances other than alcohol. There is simply inadequate science to support such a finding. The day when there will be such data and interpretation sufficient to satisfy the legislature is quite far off if it can ever be achieved. How much THC (the active ingredient in marijuana) is sufficient to say that a driver is impaired? How does the level of THC in one driver compare to another driver in terms of their ability to operate a motor vehicle?

The answer to these questions in the current state of the law is that it depends upon the trier of fact. The police arrest a driver based upon their observations of his or her operation that appears to be outside of the normal unimpaired method of driving. They then perform specific sobriety tests to make observations of that person’s balance, ability to perform divided attention tasks, and general ability to follow directions. The officer then makes a decision about whether or not there is sufficient evidence to charge the individual with operating while impaired. These observations and conclusions are recorded in a police report which becomes the basis for the trial at a later date. The arresting officer presents his evidence in the form of testimony at trial. In cases where the impairment is due to alcohol, a test of the person’s breath alcohol is requested and, if they submit, that evidence can be used so long as it is scientifically reliable. There is no such test available for impairment by other drugs. The trier of fact, whether it is a judge or a jury, makes the final determination of whether there is proof beyond a reasonable doubt that the driver was impaired. The verdict is subjective, depending upon the officer’s ability to relate his observations, and unique in every case.

Some members of the defense bar point out that police prosecution of drugged driving cases are becoming more frequent and better received by the Court. This is generally true but still presents more of a challenge to the police prosecutor than a DWI case involving alcohol. It is doubtful that the law enforcement community will come up with a scientific test for the level of other drugs causing impairment before the advent of driverless automobiles. In the meantime, the best way to avoid prosecution is to avoid operating a motor vehicle while under the influence of ANY substance.

By: Kent Barker

“JULY 1 PROHIBITION OF USING CELL PHONES WHILE DRIVING”

Effective on July 1st of 2015 New Hampshire RSA 265:79-c will go into effect. This law prohibits the use of cell phones and other electronic devices while driving. As of July 1st, it will be a violation to use a cell phone to make a call with three notable exceptions. Those are:

• While making a 911 emergency call;
• To use one hand to make or receive a non-cellular two-way radio call; or,
• To use a hands-free electronic device integrated into a motor vehicle.

There are special enhanced penalties for drivers who are 18 years of age or younger. These drivers may not use any device at any time except for making a 911 emergency call. These drivers will also be subject to a license suspension or revocation under RSA 263:14 III.

The penalties for violation of the prohibition include a $100 for a first offense, a $250 for a second offense, and a $500 for any subsequent offense within the 24 month period. All of these fines will, of course, be subject to a 24% penalty assessment.

The law is in response to several high profile cases where individuals hurt others or themselves due to inattention while texting or talking on a cell phone. All of us have experienced the distracted driver who is all over the road. When we finally make it past them, we often see that they are talking on their cell phone. This bill promotes public safety and gives notice to the driving citizenry that full attention to what you are doing is necessary while driving a vehicle.

We in New Hampshire take our civil liberties very seriously and are generally opposed to laws that tell us how to behave. “You can’t Legislate responsibility” is the war cry of many a New Hampshire Legislator. In some cases, however, it becomes necessary to establish rules that will establish order in everyday life to eliminate chaos. This is one such law. The intrusion into individual liberties is slight while the focus on the protection of safety is justified.

The real effect of the law over time will be driver’s use of integrated hands free phone systems within their cars. Most cars made after 2008 have the integrated systems at least available. There may also be a market for installing such blue tooth systems within a car to allow the drivers to make telephone calls while still complying with the law. We are all going to have to change our behavior and the time to do so is upon us.

By Kent Barker

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More Rule Changes: Criminal Procedure

In the last five years New Hampshire Courts have made sweeping changes to the Civil, Family Law and recently Criminal Law procedural rules.  Effective December 16, 2013 significant changes were made to the rules governing criminal procedure throughout the superior courts in the state.  Just as we are all creatures of habit and routine, the individual courts too will take time to adjust to the transition.  In other words, the rules have changed but not everyone will follow them.  The fact is, few practitioners have the luxury of familiarizing themselves with all of the rules on a given day.  The courts are painfully aware of that.  The Bar Association has been doing its part to spread the word and encourage lawyers to review them.

The question that one must ask is whether or not the changes will promote better practice in the state.  The system being applied now seems to work just fine.  That is not to say that it works fine in every court in the state.  The rule changes seem to be motivated primarily by an effort to promote consistency throughout all of the state’s counties and to make the administration, and therefore the practice of criminal law, uniform.

Some practitioners also hold the opinion that there are more inefficiencies in the larger counties of the state when it comes to criminal procedure.  There is no question that the criminal docket dominates the court’s time in the larger counties due criminal defendant’s constitutional protections.  This is simply a cost of justice in a country with a constitution that values individual freedom.

Two specific rule changes point to the court’s intent to speed the processing of cases.  First, the deadline for notifying opposing counsel of the intention to use an expert witness.  In theory, the rule attempts to minimize the inefficiencies of late disclosure, such as the need to continue a case that would otherwise be ready for trial.  This does not always square with the practitioner’s experience of criminal practice in New Hampshire.  Cases often must be thoroughly investigated and prepared before the necessity of an expert becomes obvious.  The outcome of evidentiary rulings can also have a major impact on the decision to use an expert.  For example, if a motion to suppress medical evidence is granted, there is no longer a need for a medical expert.  If it is not granted, the necessity of an expert only becomes known at the moment the order is received.  Thankfully, the court is often sensitive to this development and does not hold counsel to a strict adherence to the expert disclosure deadline.

A second change that seems to be promote expediency above all else is the deadline for the State to provide discovery and make an offer on the case.  Prosecutors need to understand the case before making a realistic offer.  This often takes more time than anticipated.  Between communicating with busy investigating officers and juggling their enormous workload, many prosecutors cannot make a realistic offer for some time; often until the structuring conference is about to take place.  The new rule requires that an offer be made very soon after the indictment has been handed down.  The likely result is that offers made at this stage of the proceeding will be unrealistic.  The risk is that defense counsel and the defendant will be outraged or insulted by the initial offer, casting a chilling effect on future negotiations and diminishing the likelihood of out-of-court agreements.  It would seem that such an unnecessary and potentially harmful deadline should be avoided.

Though made with good intentions, the court’s changes to the criminal rules will always need to be catered to the eccentricities of each county.  It is hoped that the court will be enforce these rules with a mindset toward promoting justice and fair treatment rather than strict adherence above all.

By: Kent Barker, Esq.

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Crime and the Media

The temptation is to make an entry on the “issue of the day” whatever that issue may be.  Instead, the subject matter of this post will be Crime and the Media and the role that it plays in our lives.  It seems at first blush that the subject is rather dry and, once a case is over, who really cares?  A closer look reveals that our society borders on crime obsessed.  Take a look at today’s newspaper (or any day’s for that matter,) the TV listings, the movie releases.  They are dominated by stories of crime.  Many social critics lament that we emphasize the social deviant behavior while ignoring the good works of those who deserve praise.  I’m not quite so cynical as to think that good works are ignored.  Heroism is everywhere and we are not slow to recognize it.  Criminal behavior SHOULD be thrust in the spotlight in the spirit of outrage.  This behavior is not acceptable and those who do it should be placed in the spotlight of shame much the same as the Pilgrims did with their public stocks.

The problem I see is with the fascination and media saturation with crime.  It has lost its proper place and share of the attention.  There is a very great risk to this: complacency.  Too much focus on deviance erodes that sense of outrage and gets us to a place of acceptance.  Serial killer trading cards?  True crime books outselling great biographies of world figures?  This is the beginning of a slip down the road of the acceptance of bad behavior that is both wrong and dangerous to future generations.

The answer is not censorship or some kind of control on the media.  The answer is to ignore the hysteria individually and emphasize the good behavior we see around us.  Print stories about the athlete’s breaking of the record first and not the bad behavior that has come to be expected.  Cut off the interest, and the stories will not be printed.  A quick solution?  No.  It is the only way, however, to take back the proper focus of the media onto the right kind news.

By:  Kent M. Barker

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How Delays Deny Justice

The word came down from a clerk in a Hillsborough County Family Court (9th Circut) that all final hearings were being scheduled out to June.  Our case is a contested custody case where the Guardian Ad Litem has already made a recommendation.  This leaves a delay of about nine months for this family to move on to a new way of doing things.  It is difficult to underestimate the damage that can be done as a result of the time that will pass without a Final Order.

Criminal cases get priority where a defendant is incarcerated.  With a liberty interest at stake, it is only fair that incarcerated defendants get into Court faster.  The misconception is that the Criminal system does not suffer any denial of justice due to the late scheduling of trial time.  Nothing could be further from the truth.  Cases without incarcerated defendants still require prompt resolution for defendants and victims alike.  Repeated trips to the Court only to be told that the case has been rolled over to another date cause added legal costs, lost work time, and wasted public resources like police time that could be better used to serve the community.

The problems with scheduling hearings in a more timely fashion are not the fault of the Clerks or the Judges.  The problem is money and it is no secret.  Prosperity will return when the political landscape is more predictible.  The key for the justice system is to resist panic.  Economies prosper where there is safety and order and infrastructure.  The State needs to circle the wagons, work a little harder, and continue to produce the best access to the Court that it can.  Businesses need to see that NH is a stable place where companies and their workers can feels safe and have their disputes settled fairly.  Investment in NH will return when it is seen by the national and world business community that we have best weathered the storm and kept our doors open while others have paniced.  They will choose NH as a place to live and work and pay taxes.  Only then will State revenue rise and allow some breathing room for the Court system.

Justice delayed is justice denied.  The road out of the current delay problems is to work harder, be patient, and remain confident that prosperity will return.  It is the NH way and has always been successful in the past.  This crisis will be no exception.

By:  Kent M. Barker

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Circuit Courts Are Upon Us

The advent of the Circuit Courts in NH is upon us.  The idea is to centralize the services provided by the Court in order to reduce administrative costs and, in theory, to make the Court more convenient for the consumer.  One stop shopping.  Where we now have Probate Court, Family Court, Juvenile Court, and Criminal Court, all those will be under one roof with a common Clerk and, I assume, Judge

The Judiciary will be the ones most stretched by the new arrangement.  A judge will often have to switch gears from reviewing a Probate Accounting to accepting a plea on a DWI, to hearing a Custody issue.  All in the same hour.  It will not be easy and the Judges will have to be cross trained.  Patience will be required.

The transition will have its challenges.  All changes do.  The current system has been in place for decades and confusion will reign for a while.  Lawyers and litigants alike are used to lines of demarcation.  It will take more time to figure out where to go and what to do.  There will be less human contact with the people who are the system.  Like the self checkout lines at the Supermarket, you will have to ring things up yourself, then pay.

It is unfair to criticize unless one has a better idea.  Obviously, our legal system has been neglected and needs some updating.  Electronic filing will help.  Streamlining the litigation process will free up valuable resources.  It seems like implementing these changes gradually would make sense.  We are told that the economic realities do not give us that luxury today.

It is hoped that, after a period of adjustment, the system will be in a better place.  Time will tell.  The effort is well intended.  Let us hope it is well designed.

By Kent M. Barker

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Use of Information

One of my favorite quotes of the past ten years is by the author Philip Caputo who wrote “we drink greedily from the salt water of information while our throats are parched for droplets of wisdom.”  So it seems that our world edges ever closer to the inevitable conclusion that all of the information we have is useless because we do not know what to do with it.  I suppose I am not so pessimistic.  Mankind has always found a way to adapt to the technological changes that have a profound effect on our lives.  We survived the automobile and the telephone in this century alone.  The computer will be assimilated into the 21st century and our lives will be better.  It leaves the question of the moment, however, which is “how do we actually USE all of this information?”

The answer is one that is constantly morphing along with the changes in technology.  There are certain guidelines that I try to use to keep the torrent of information under control:

1.  Under commit.  It took some time to decide to actually do this blog.  It is not worth doing unless it is to be taken seriously.  Committing to too many different kinds of information attachments creates confusion and erodes credibility.  Like Gram said about the buffet line; take all you want but eat all you take;

2.  Set limits.  The telephone revolutionized communication but it created a situation where too much needless communication was done and it actually became counterproductive at times.  Like limiting a teenager’s time on the phone after school, we have to decide how much time and information is productive and where it no longer serves its best purpose.  An example is legal research.  Lawyers have mountains of case summaries at their fingertips, far more than ever before.  Processing, understanding and organizing all of that information takes precious time and energy.  There are few cases where a ton of legal research is necessary.  Managing ALL of our resources is an art and a skill that brings success and results that any lawyer strives for;

3.  Narrow the focus by learning.  I first touched a computer keyboard in college.  Advances in software are not things that I process or accept easily.  I resist it whenever I can.  The reality is that old dogs HAVE to learn new tricks in this day and age to stay competitive.  I try to keep an open mind and learn something new about the power of my computer each day.  I ask for help when I need it which is often.  I try to jettison the cumbersome processes and focus on what works, what information is valuable to me and can be used most efficiently;

4.  Integrate experience.  Law practice is still a people centered business.  Instant communication of information does not mean a response has to be shot back in an hour.  Cases some times have to ripen.  A non-response is often a very powerful response.  Using the information available in the context of years of experience is what gives each client the very best of his or her lawyer’s talent.

The list above grows and changes each day of my practice in the areas of Criminal, Family Law and General Litigation.  I strive to find the “pearls of wisdom” by using the information I have as best I can with thought, consideration, and realistic expectations of my self and others.   I try to make each day a little better than the last so that I can best serve my clients and the legal system.

By:  Kent M. Barker

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