ADMINISTRATIVE LICENSE SUSPENSION (?ALS?)

For ?Boating While Intoxicated? Case

 BWI CASE VICTORY AUGUST 3, 2009
DWI ALS CASE EXAMPLE: 2 YEAR SUSPENSION OF RIGHT TO DRIVE BASED ON AN ALLEGED .REFUSAL TO SUBMIT TO A BREATH TEST-DISMISSED AFTER ADMINISTRATIVE LICENSE SUSPENSION HEARING

http://www.ByeByeDWI.com

Please note-this is an example of the disposition of a recent New Hampshire DWI case. It is by no means a guarantee of any particular result in any other case.

http://www.byebyedwi.blogspot.com

Imagine going to your local DMV and applying for a license to drive a car.  Imagine paying your fee, passing your eye examination, proving your identity, getting your photo taken, then waiting in line.  When you get to the front of the line, the DMV employee tells you:

          ?OK, I need to do one more thing to see if you are OK to drive. Hold your hands out.  When I say ?go?, touch the tip of your thumb to the tip of your index finger and say ?one?, then quickly touch the tip of your thumb to the tip of your middle finger and say ?two?, then quickly touch the tip of your thumb to the tip of your ring finger and say ?three?, then quickly touch the tip of your pinkie and say ?four?, then quickly touch the tip of your pinkie again and say ?one?, then quickly touch the tip of your ring finger again and say ?two?, then quickly touch the tip of your middle finger again and say ?three?, then touch the tip of your thumb to the tip of your index finger again and say ?four?. 

Imagine the registry employee then tells you, ?Now you just keep doing what I just explained again and again until I tell you to stop, keep going faster and faster and faster until you make a mistake.?

First of all, you might well ask, ?What does this have to do with how well I can drive??  The answer the DMV employee gives you is, ?well this is a divided attention test, much like when you are driving?.  Would you buy that? Of course not, because it makes no logical sense.

Secondly, you might want to know how and whether you pass or fail.  Imagine the registry employee tell you, ?Oh, well there really is no scoring system.  It?s entirely up to my own subjective opinion whether I give you a license after I watch you do all this stuff. ?

Would you say, ?Hey sure, that sounds ok to me, more than fair and completely relevant.  I?ll leave it entirely up to your subjective opinion whether I get my license, or keep it or lose it, based on how you think I do with that finger counting exercise you just described!?

Of course you wouldn?t.  But that is one of the things you?ll be asked to do if you elect to run the gauntlet of ?marine field sobriety tests? if the officer smells alcohol.  CHOOSE WHETHER TO DO THESE CARFEULLY.

Now on to the facts of this case?.

BASIC FACTS: The driver of a boat in this case was stopped for having a ?light out?, the usual precursor to a ?boating while intoxicated? arrest.  An officer activated the blue light on his patrol boat and stopped the driver.  Once stopped, the patrolman marched the driver through a gauntlet of ?safety inspection? questions and exercises, demanding to see lifejackets and flotation devices.  Even though these tasks were performed flawlessly, the patrolman interrogated him about drinking.  The officer reported that the driver?s eyes were ?bloodshot and glassy?, stock observations that appear in nearly every DWI or BWI report.

          The officer then ordered 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. 

In this case the driver supposedly failed the ?pen test?, also known as the ?Horizontal Gaze Nystagmus? test, which is when the officer waives his pen in front of the driver?s face and decides the driver is impaired by alcohol. While he allegedly ?failed? the sideways pen test, he ?passed? the pen test that the officer did by waiving the pen up and down.   

The driver went on to fail the ?finger count test?  The ?finger count test? is like a parlor trick in which the driver has to touch the tips of his fingers while counting out loud, faster and faster until he makes a few mistakes, at which point the officer moves along to the next ?test?.  After the finger counting was a ?palm pat test?, another weird exercise in which the driver flips his palm over and back while counting rapidly until he makes a mistake and ?fails? that too.  The driver also performed a ?finger to nose test?, an old law enforcement favorite. 

He was asked to ?say the alphabet without singing it?.  The driver said the entire alphabet, without missing any letters or mixing any letters up, but he said the letters ?slowly? (as in not singing them?).  The officer also directed the driver to ?count backwards? from 25 to 1.  The driver did that test perfectly, but he also counted backwards ?slowly?.  Despite counting backwards perfectly, the officer arrested the driver anyway. 

Back at the station this citizen chose not to blow into the breath testing hose when asked to do so by the officer.  The boat operator hired Attorney Stevens to fight the administrative license suspension attached to his Boating While Intoxicated (?BWI?) charge.

HEARING PROCEDURE:     Attorney Stevens requested a hearing on the driver?s behalf at the Department of Safety.  Attorney Stevens challenged everything in his hearing request that the law and the rules allow regarding boating while intoxicated license suspensions Attorney Stevens moved to dismiss this administrative license suspension action against this citizen based on a statutory and regulatory argument that the administrative license suspension action could not stand.  The driver?s administrative license suspension was dismissed after the hearing.

RESULT:    ADMINISTRATIVE LICENSE SUSPENSION DISMISSED!!!   The citizen?s right to drive was restored immediately.  He did not suffer the 2 year administrative suspension that the state sought to impose on him.

Attorney Stevens thanks God for this successful defense!!!

TODAY?S SCRIPTURE:

?For the law of the Spirit of life in Christ Jesus has freed me from the law of sin and death.

For God has done what the Law could not do, it being weakened by the flesh.  Sending His own Son in the guise of sinful flesh and as an offering for sin.  God condemned sin in the flesh .?

Romans 8: 2-3.

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