Criminal Law Review

Unlike what you see on television, and what you may read about the process of bail and bond, it is a relatively simple matter.

When you have been arrested for DWI, you are taken to the station, put through the rig-a-marole of being booked and are then held until a bail bondsperson comes to set your bail.

Once the bail bondsperson arrives, an officer explains the charge, and makes recommendations to the bail bondsmen based on your priors, behavior, level of sobriety, the nature of offense, and finally any defaults or outstanding warrants. The bail bondsperson uses all this information to (subjectively) determine the amount of bail. It is in your best interest to be courteous, polite and respectful while in custody, as the police and bail bondsperson work together in determining your bail.

Most people are released on personal recognizance. They pay the bail bondsperson a minimum of $40, in the form of cash only, and then bail is set. Depending on the nature of the offense, the amount of bail can range from a few hundred bucks to thousands of dollars.

When you are released on personal recognizance, the bail bondsperson will explain the arraignment schedule and the terms of bail. If you violate the terms or fail to show up for your court date, you will owe the full amount of bail.

It is very important to understand that from the time of the arrest clear through the completion of trial, you are bound by the terms of your bail. Contrary to popular belief, bail does not only apply to appearing in court. Part of the terms of release state that you must stay out of trouble, and not break any laws, as well as any other stipulations set forth by the bondsperson or the court. Keep in mind that in New Hampshire, the state needs only to prove bad behavior that is in violation of law by preponderance of evidence.

If there are concerns about whether or not you will appear at your court date or if there is an issue of safety to self or community than bail can be set in the amount of cash, or cash and surety. When this is the case, you will be required to put up cash and property equaling the amount of the bail.
In cases where there has been a fatality or homicide, you will be held until a judge sets bail. The judge decides if you are eligible for release, sets the amount of bail, and defines the stipulations regarding bail based on New Hampshire statute 597:2.

If you are impaired, you will not be released unless someone sober comes to get you. Many people call the same friends with whom they were drinking to come and get them from jail. These drunken friends can be, and are, arrested on the spot. If you can’t be released to a sober individual, you are held in protective custody until you sober up and can walk home.

Once arrested for DWI your behavior can have a large impact on the amount of bail set, and whether or not you are eligible for release on personal recognizance. As angry or humiliated as you may be, it will only help matters if you present your best face, and continue your good behavior until the matter is completely resolved.

Blood Alcohol Ignition Interlock Devices are in use in almost every state in the U.S. and in many other countries, including Canada. These devices are inexpensive breathalyzers which are connected to a vehicle’s ignition system. They are designed to prevent a driver with alcohol in his or her system from starting the vehicle. Since their primary goal is not to collect evidence, but to prevent someone who is intoxicated from starting a vehicle, these devices were not designed to meet stringent reliability and accuracy standards. These devices are therefore, not nearly as reliable as breathalyzers found in police stations. One of the reasons why these devices lack accuracy is because these devices use a “fuel cell” rather than infrared technology to measure alcohol. They use a less reliable fuel cell to keep costs down and make them affordable to motorists. Police breathalyzers cost thousands of dollars and these ignition interlock devices cost only hundreds of dollars.

If interlock devices were used only to prevent intoxicated persons from starting vehicles, their lack of accuracy would be insignificant. However, their readings are used as evidence in Registry of Motor Vehicles suspension hearings to decide whether to suspend a motorist’s license for driving or attempting to drive after or while consuming alcohol. In Massachusetts, for example, a positive ignition interlock device (IID) reading can result in a license suspension for at least 10 years up to a lifetime. The Registry is suspending licenses on a machine designed not as a scientific instrument or evidentiary breath test device, but as an “interlock device,” designed to prevent a vehicle from starting.

There have been documented cases of alcohol readings caused by such things as mouthwash, cough drops, medication, baked goods, protein bars, and a variety of other common food items and consumables. When these readings occur, the unsuspecting motorist is often called into a registry hearing and forced to defend himself or herself at the risk of losing his or her license for a very long time, even maybe a lifetime.

Here are some steps you can take to protect yourself from false alcohol readings:

1. If your interlock device falsely registers alcohol, you should immediately go to a police station or hospital to have your blood alcohol level checked. Obtain a copy of the report and save it, so that you can refute the inaccurate ignition interlock readings.

2. Try not to eat anything or put anything in your mouth prior to blowing into the interlock device. Even seemingly harmless items can register as alcohol.

3. Drink water to clear you mouth of contaminants before you blow in to the IID.

4. Do not use a mouthwash that contains alcohol.

5. Take detailed notes of any malfunctions or problems and report them to your service provider. Get the name of the person you speak with.

If you receive an interlock violation notice, you should contact an attorney who specializes in ignition interlock cases. Select a lawyer who is familiar with your device and who has successfully defended clients charged with interlock violations.

No parent wants to get a phone call from a child in jail. Nevertheless, mistakes happen. Don’t compound their mistake by mishandling their call to you.

Being arrested is scary and, odds are, your child is going to be extremely upset by the time they call you for help. Your first priority is to calm them down. Your second priority is to keep them quiet.

Do not make your child explain what happened. In fact, don’t even ask. And don’t let them tell you. Your child is probably calling from the booking desk and is standing in front of a police officer. Or he or she is calling from the holding area and can be overheard. What your child says to you on the phone can be detrimental to their case. Calmly explain that they will be able to tell you everything later.

You must encourage your child not to waive their right to remain silent or to legal counsel. Everything your child says while in police custody can be put in their case file and be used against them. Stress that they are to remain calm, courteous and quiet. You need to know the charge, if bond has been set, and if not, when it will be set. These are the only questions to be answered on the phone.

If the child is too distraught to answer, have him give the phone to the desk sergeant or jailer. Let your son or daughter know that you are going to help them and will see them as soon as you can.

Once you know the amount of bond, get your child out of jail. If you don’t have the cash on hand, you can use a bondsman. They will post bond and charge you a percentage of the total amount as their fee. You will also have to pay jailer fees. If there is no way you can post bond, contact a criminal defense attorney immediately.

Though your child can be represented by the public defender, he or she will have a much better chance at minimizing the legal consequences if you hire an experienced DWI attorney. Take some time and research local attorneys. Once one is hired, information passed between your child and the attorney is privileged. The attorney will not be able to update you on the case or explain the details of the arrest without authorization-even if you are footing the bill.

Depending on the circumstances, a DWI arrest can affect the rest of the child’s life. New Hampshire takes DWI very seriously and offenses carry stiff penalties. The whole process is going to be difficult on everyone involved. Odds are, you will be caught off guard when you receive the initial phone call, and you may feel overwhelmed throughout the entire process. Choosing the right attorney will go a long way toward not only building your child’s defense, but also supporting your family through a very difficult time.

For more information on how to choose the right attorney, read Picking a DWI Attorney.