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Archive for the ‘Criminal’ Category


Supreme Court Strikes Down Warrantless Blood Tests in DWI Cases

Wednesday, April 17th, 2013
By Richard J. Lehmann – Concord NH Criminal Lawyer

The United State Supreme Court issued a decision that could limit the power of law enforcement officers to investigate and prosecute DWI cases in New Hampshire. The decision of Missouri v. McNeely should be of immediate concern to any person facing a DWI charge. If you have a DWI charge pending in court, you should immediately find out if today’s ruling helps your case. Today’s decision may be the first step toward rolling back what DWI defense experts sometimes refer to as the “DWI exception to the Constitution.”

The Fourth Amendment to the United States Constitution protects us all against unreasonable searches and seizures of our homes, belongings, and bodies. Under the Fourth Amendment and the New Hampshire Constitution, a search warrant issued by a judge is required to authorize a search. However, an exception is made for emergency situations. One of these exceptions involves DWI cases.

One of the main ways that police officers collect evidence to prosecute DWI cases is by getting a blood or breath sample and having it analyzed for blood alcohol content (BAC). Because the body is constantly removing alcohol from the blood, courts have held that gathering this evidence constitutes an emergency under the Fourth Amendment. In other words, no warrant was required to seize a DWI suspect’s blood.

Today, the Supreme Court changed that. The Supreme Court held that the mere fact that BAC would be lowered while police obtained a warrant from a judge would no longer constitute an emergency under the Fourth Amendment.

DWI cases require specialized knowledge that can only be gained through experience handling this kind of case. If you have been charged with a crime or believe your rights have been violated, you should consult an experienced criminal lawyer at Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form for a case evaluation.


New Allegations Involving Former New London Police Chief

Wednesday, April 10th, 2013
Attorney Richard Lehmann of Douglas, Leonard & Garvey, P.C. represents the Colby-Sawyer College student who alleged that former Police Chief David Seastrand of New London Police Department asked her to pose nude in exchange for dropping charges against her.

Our firm has been contacted by several other women alleging complaints against David Seastrand. Douglas, Leonard & Garvey, P.C. is actively and aggressively continuing to investigate allegations of impropriety involving former New London Police Chief David Seastrand.

If you are aware of any misconduct similar in nature to the events described in recent news coverage, please contact our office as soon as possible at (603) 224-1988. We would be interested in speaking with you.

Click here to read more in Union Leader.

Click here to read more in Concord Monitor.

Click here to watch WMUR news coverage.

Click here to watch WHDH-TV 7 NEWS coverage.

All claims have not been adjudicated and any allegations made are unproven at this time.

New Dui Law Makes Penalties Even Tougher

Thursday, March 14th, 2013
By Richard J. Lehmann – New Hampshire Criminal Lawyer
New Hampshire has once again updated its DUI laws, once again increasing the burden faced by people convicted of this offense.
Prior to the new law going into effect,

People convicted of DUI already faced a mandatory minimum sentence of a $500 fine and 9 month loss of driving license

people convicted of DUI already faced a mandatory minimum sentence of a $500 fine and 9 month loss of driving license. The 9 month loss of license used to be reduced to 3 months if the person completed the Impaired Driver Intervention Program (IDIP). A common problem people had under the old system was that before completing the IDIP they would be subject to an exit interview in which a counselor would attempt to determine whether the person represented an ongoing danger on the highways. Most people did not get “red flagged” but it did happen. Usually, the “red flag” could be remedied with further counseling.
The new law attempts to have this red flag process occur at the beginning of the license suspension, rather than at the back end. In addition to the previously mandatory fine and loss of license, a person convicted of DUI is now required to attend an “Impaired Driver Care Management Program” (IDCMP) within 14 days of conviction to get the 9 month loss of license reduced to 3 months. These programs are licensed by the state department of health and human services. Only time will tell of they are effective or not, but for the near term, they are causing confusion in the courts due to the fact that not all of the prior IDIPs have been approved as IDCMPs. Importantly, confusion in the courts almost always works against citizens charged with crimes.
Do not allow the fact that the police, prosecutors, and courts are confused about the implementation of this new law negatively affect you. If you are charged with DUI, or believe your rights have been violated, you should consult an experienced criminal lawyer at Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form for a case evaluation.


Police Search Cell Phone at the Time of Arrest

Tuesday, January 22nd, 2013
By Charles G. Douglas, III
So, if you’ve been arrested, can the police scroll through your recent cell phone calls? A recent case in Massachusetts involved a situation where the accused was suspected of doing a drug deal within the sight of police officers. When he was placed under arrest, the detective asked what his cell phone number was. Following arrest and transportation to the police station, the detective conducted a few simple manipulations of the cell phone to check the history of incoming and outgoing calls that had been made recently. (continue reading…)


Can Police Search The List of Recently Dialed Numbers In Your Cell Phone?

Wednesday, December 26th, 2012
By Richard J. Lehmann – New Hampshire Criminal Attorney

The expanding use of technology in our lives has challenged the law to address issues that were unimaginable to the drafters of the Constitution and the Bill of Rights. The Fourth Amendment protects us from unreasonable searches and seizures by the government. A recent decision by Judge Posner, a highly regarded judge on the Seventh Circuit Court of Appeals in Chicago, addressed the question of whether the police may conduct a search without a warrant and look at the recently called numbers list in an arrested person’s cell phone.

The case United States v. Abel Flores-Lopez was a federal drug prosecution. Police arrested the defendant and seized his cell phone. Then without a warrant, the police searched the cell phone’s listing of recently called numbers. By learning those numbers, police were able to conduct further investigation that ultimately implicated the defendant in additional drug activity, for which he was eventually convicted and sentenced to prison.

The defendant tried to have the evidence kept out or suppressed, claiming that the warrantless search of the cell phone violated his right to be free from unreasonable seizure under the Fourth Amendment.

The court started by recognizing that a cell phone is really a computer. It is also, the court wrote. “a diary writ large.” Despite acknowledging that a warrant is required to search a computer or to read someone’s diary, and that computers and diaries can contain huge amounts of personal information, that the degree of intrusion, combined with the fact that many cell phones can be remotely “wiped” clean of any information at all, justified allowing the police to conduct warrantless searches of lists of recently called numbers.

Privacy and the right to remain free from unreasonable searches and seizure is not just important to drug dealers. All of us have an interest in protecting our privacy from government intrusion. The people who wrote our Constitution understood this.

Just how far the police can go in searching your electronic devices for information is a question that will have to be resolved through the development of precedent in this rapidly evolving, specialized field. Anyone who finds themselves caught up in a similar situation should immediately consult with a lawyer with expertise in this area, such as the criminal and civil rights lawyers at Douglas, Leonard & Garvey, P.C. at 224-1988 or fill out our online contact form.


IS A DRUG DOG’S SNIFF A WARRANTLESS SEARCH?

Wednesday, November 28th, 2012
By Richard J. Lehmann – New Hampshire Criminal Attorney

The United States Supreme Court agreed to hear a Florida case challenging the constitutionality of using a drug-sniffing dog in a warrantless search outside a home suspected of being used to grow marijuana. The dog signaled to the police that it smelled narcotics in the house. In Florida v. Jardines, the Court will decide if the narcotics dog’s outside odor detection was a substantial government intrusion into the sanctity of the home and constitutes a search within the meaning of the Fourth Amendment. The suspect’s lawyer argued that the police needed a search warrant to enter the house.

If you believe your constitutional rights have been violated, you need an attorney who has experience handling criminal defense. You should consult one of the attorneys at Douglas, Leonard & Garvey, P.C. Call us at 1-800-240-1988 or fill out our online contact form.

FEDERAL COURT FINDS VIDEO AND AUDIO RECORDING OF POLICE OFFICERS PROTECTED BY FIRST AMENDMENT

Thursday, December 8th, 2011

In the recent case, Glik v. Cunnifee, 665 F.3d 78 (2011), the First Circuit Court of Appeals in Boston recently held that the First Amendment protects the right of citizens to make video and audio recordings of police officers arresting people on the street. The federal court decision was particularly relevant in New Hampshire, where police officers in Manchester, Nashua, Weare, Portsmouth and Keene, have recently charged citizens with violating the New Hampshire wiretap statute for recording police officers performing their pubic duties.

Mr. Glik observed and recorded Boston police officers arresting a citizen on Boston Common. Believing that the police were using excessive force, Glik advised the police that he was capturing their actions on video. The police arrested Mr. Glik and charged him with violating the Massachusetts wiretap statute. His criminal charges were ultimately dismissed and Mr. Glik then sued the officers involved and the City of Boston for violating his civil rights. The police and the city asked the court to dismiss the civil rights claim, but the court denied their request.

The court held that the protections of the First Amendment are not limited to the mere act of speaking or publishing words that the government may not like. “It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, the First Amendment goes beyond protection for the press and the self-expression of individuals to prohibit the government from limiting the stock of information from which members of the public may draw.”

The Court continued, writing that “the filing of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about public officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs. The court concluded by stating that, “the freedom of individually verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Police officers do not have easy jobs. However, the mere fact that performing their day to day activities may require them to endure certain unpleasantries does not change the fact that they perform their public duties in the name of the public, using equipment provided by the public, and to serve a public purpose. Monitoring and even criticizing the use of public authority and funding goes to the very heart of citizen activism that the First Amendment was specifically written to protect. The First Circuit Court of Appeals decided this case correctly and protected the public’s right to know.

FREE BIRD? THE CASE OF NEW HAMPSHIRE V. WARD BIRD: A MISCARRIAGE OF JUSTICE? PART III: A WORD ABOUT THE APPEALS PROCESS IN THE NEW HAMPSHIRE SUPREME COURT

Thursday, December 16th, 2010

One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government. The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.” The Supreme Court judges assume that the jury got all of the factual questions right. Showing this kind of deference to the factual findings of juries is entirely appropriate. In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal. Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire. Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law. The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard.

FREE BIRD? THE CASE OF NEW HAMPSHIRE v. WARD BIRD: A MISCARRIAGE OF JUSTICE? PART III: A WORD ABOUT THE APPEALS PROCESS IN THE NEW HAMPSHIRE SUPREME COURT

Tuesday, December 7th, 2010

One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government.  The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.”  The Supreme Court judges assume that the jury got all of the factual questions right.  Showing this kind of deference to the factual findings of juries is entirely appropriate.  In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal.  Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire.  Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law.  The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard

Free Bird? The Case of New Hampshire v. Ward Bird: A Miscarriage of Justice? Part II: The Definition of the Crime of Criminal Threatening

Friday, December 3rd, 2010


Mr. Bird was charged with felony criminal threatening.  The government charged that Bird:

did commit the crime of criminal threatening in that by his physical conduct he purposely attempted to place [the woman] in fear of imminent bodily injury or physical contact by waving [a] forty-five caliber handgun, a firearm and deadly weapon pursuant to RSA 625:11, V at [the woman] while telling [the woman] to get off of his property.

In order to gain a conviction at trial, the government is required to prove each and every element of the crime charged beyond a reasonable doubt.  If a single juror has a doubt about even one of the elements, then the judge will tell the jury that it cannot convict a defendant.  The elements of criminal threatening are: (1) that by physical conduct; (2) Mr. Bird placed Ms. Harris in fear of imminent bodily injury or physical contact; (3) by “waving” a deadly weapon at Harris while telling her to get off his property; and (4) he did all of these things purposely.

Based on the facts as set forth in the opinion, there was enough evidence for jury to find that Mr. Bird’s committed each of these elements.  The main controversy seems to surround the rejection of Bird’s claims of self-defense.  RSA 627:7, entitled “Use of Force in Defense of Premises,” governs when a person is justified in using non-deadly force to terminate the commission of a criminal trespass. It states, in relevant part:

A person in possession or control of a premises or a person is licensed or privileged to be thereon is justified in using non-deadly force upon another when and to the extent that he reasonably believes it necessary to prevent or terminate the commission of a criminal trespass by such other in or upon such premises . . . .

When a defendant raises a valid self-defense claim, as Bird did in this case, then the burden shifts to the State to prove that it was unreasonable for Bird to think that his conduct was necessary to terminate Harris’ act of criminal trespass. Based on the guilty verdict, it is clear that the jury believed that Mr. Bird’s conduct was not reasonable in light of the “threat” posed by the trespasser.

 
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Douglas, Leonard & Garvey, P.C. attorneys represent clients in courts throughout New Hampshire, including Concord, Manchester, Nashua, Salem, Rochester, Portsmouth, Laconia, Plymouth, Franklin, Keene, Lebanon, Littleton, Hampton, Hooksett, Derry, Claremont, Goffstown, North Conway, Exeter, Durham, Plaistow, Henniker, Newport, Milford, Merrimack, Hillsborough, Bow, Hopkinton. We also represent clients in all counties, including Merrimack County, Belknap County, Carroll County, Cheshire County, Coos County, Grafton County, Hillsborough County, Rockingham County, Strafford County and Sullivan County.

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