CASE EXAMPLE-WEEK OF AUGUST 15, 2008

BOATING WHILE INTOXICATED (“BWI”)

IMPLIED CONSENT VICTORY

A DRIVER WAS STOPPED FOR DRIVING WITHOUT LIGHTS ON HIS BOAT RIGHT AROUND SUNSET.  THE DRIVER ENDED UP CHARGED WITH “BWI”: BOATING WHILE INTOXICATED.  HE CHOSE TO FIGHT THE STATE’S EFFORTS TO SUSPEND HIS RIGHT TO DRIVE A BOAT OR A CAR.  READ ON TO SEE WHAT HAPPENED...

http://www.ByeByeDWI.com

Please note-this is an example of the disposition of a recent New Hampshire Boating While Intoxicated (BWI)”implied consent suspension” case. It is by no means a guarantee of any particular result in any other case. It DOES further illustrate though, that the only really “automatic” suspensions of a driver’s license occur when the driver does not challenge the suspension at a hearing:

http://www.ByeByeDWI.blogspot.com

Now on to the facts of this case….

BASIC FACTS: The driver of a boat was stopped for driving without his lights on.  He had passengers on the boat at the time.  An officer activated the blue light on his patrol boat and stopped the driver.  Once stopped, the patrolman orchestrated the driver through a ritual “safety inspection”, demanding to see lifejackets, flotation devices; even asking the driver to honk the horn of the boat and make sure that everyone on the boat had the right size life jacket.  During this time the patrolman saw some empty alcoholic beverage containers. 

          Even though the boat driver performed these tasks well, the patrolman interrogated him about drinking any way.  The driver chose to answer the questions about drinking and eventually said that he had had a couple of beers earlier.  The officer reported that the driver’s eyes were “bloodshot and glassy”, a rote observation that appears in nearly every DWI or BWI report.

            The officer then invited the driver to board the patrol boat for some “marine field sobriety testing”.  (NOTE FOR THE UNWARY: THIS IS THE POINT AT WHICH THE ARREST DECISION HAS PROBABLY ALREADY BEEN MADE.  CHOOSE WHETHER TO PERFORM THESE “TESTS” CAREFULLY.  THERE IS NO SCORING SYSTEM FOR THESE EXERCISES, AND THE DECISION TO ARREST IS ENTIRELY BASED UPON THE OFFICER’S WHIM).  Marine field sobriety tests are an unusual battery of seated dexterity exercises designed to trick the driver.  These are the seafaring version of the sidewalk acrobatics known as “standardized field sobriety testing” done during DWI cases at the roadside.  The most basic difference is that there is NO OBJECTIVE SCORING CRITERIA FOR MARINE FIELD SOBRIETY TESTING.  One of these “tests” is much like the childhood game of “one, potato, two potato”. 

          (For a series of articles on the 6 most common “floating field sobriety tests”, feel free to review my blog):

          http://www.byebyedwi.blogspot.com

          This driver supposedly “failed” all 6 of the counting and sleight-of-hand tricks he was directed to perform.  NOTE-THIS IS A GREAT EXAMPLE OF WHY COOPERATION OFTEN DOES NOT BENEFIT THE DRIVER; YOU SHOULD CHOOSE WHETHER TO DO FIELD SOBRIETY TESTS CAREFULLY.  The fact that you can’t perform the “one, potato, two potato” trick well really has nothing to do with whether or not you’re drunk or whether you can safely drive a boat.  But it will be used as evidence against you if you choose to do this “test”.

          Back at the station the driver chose not to blow into the black rubber breath testing hose when asked to do so by the officer.  Therefore, the state sought to suspend his driver’s license via an “implied consent suspension” request to the New Hampshire Department of Safety. 

          The boat driver hired Attorney Stevens to fight the boating “implied consent suspension”.  NOTE-if you are facing an implied consent suspension after a “boating while intoxicated” arrest, the state is seeking to suspend not only your right to drive a boat, but they are trying to take away your right to drive a car as well!

THE BOATING IMPLIED CONSENT SUSPENSION HEARING:    

After the state filed its request for an administrative license suspension, also known as an “implied consent suspension” hearing request, Attorney Stevens filed an appearance in this case.  At the hearing, Attorney Stevens moved to dismiss the state’s request to take the driver’s license away, based on a fatal error in the petition process itself and the rules that govern these proceedings.  Attorney Stevens’ motion to dismiss the state’s suspension request was granted after the hearing.  The driver avoided a six month suspension of his driver’s license.  The administrative license suspension request in this “boating while intoxicated” case was DISMISSED!!!!!

RESULT:  IMPLIED CONSENT SUSPENSION FOR RWEFUSING TO BLOW INTO THE BREATH TEST HOSE DISMISSED!!!

Attorney Stevens thanks God for this successful defense!!!

TODAY’S SCRIPTURE:

“Say among the nations that the Lord reigns; the world also is established, so that it cannot be moved; He shall judge and rule the people righteously and with justice.”

Psalm 96:10.

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