Criminal Defense

Criminal Law FAQs

1. What happens next after I get arrested?  Will I be released from the police station?

When most people are charged with a crime, they are arrested, brough to the police station and put through the booking process.  The booking process usually consists of collecting your personal information, taking your fingerprints and taking your picture for the police case file.

After this, the police department will call a bail commissioner to come to the police department to set bail.  (In some instances, the police may not call a bail commissioner and may just bring you to the Court for the Court to set bail.)  The bail commissioner will come to the police station and ask you a series of questions about your background (work history, contacts in the local community and criminal record).  Then, they will set bail for you.  Bail can either be set at personal recognizance, a certain amount of cash or surety bail or the bondsman can hold you pending a further hearing by the Court. 

A personal recognizance bail means that you do not have to put up any collateral in order to be released from police custody.  You will be released on your promise to show up at court for the next scheduled hearing. 

Cash or surety bail means that you will be required to post some amount of cash or have a bail bondsman post a bond on your behalf before you are released.  If you post cash bail with the Court, your bail will be returned to you at the end of your case.  If you fail to appear, however, the Court may forfeit your cash bail and you will not get it back.  A bail bondsman will charge you a fee to post a bond on your behalf which you will not get back at the end of the case.  They will also expect some collateral equal to the amount of the bond, like real estate or some other item of value.

In some circumstances, the bail commissioner will have you held pending a bail hearing in front of the Court.  If you are held, the Court is required to give you a hearing within 72 hours of your arrest.  This is an opportunity for you or your lawyer to argue that you are not a danger to yourself or the community and that you are not a flight risk.

2. What are the maximum penalties for the crime I was charged with?

In New Hampshire, crimes are classified as either class A or class B misdemeanors or class A or class B felony level offenses.  Violation level offenses are not categorized as crimes but do carry a potential fine of up to $1,000.

Misdemeanors are considered lesser criminal offenses.  Many misdemeanor crimes can be charged as either a class A or class B level offense.  Recent changes in the law require the State to elect the level of the misdemeanor offense at approximately the same time as when the charge is filed.  The maximum penalty for class B misdemeanors is a $1,200 fine.  The maximum penalty for class A misdemeanors is 12 months at the county house of corrections and a $2,000 fine.

Felony level offenses carry a harsher maximum penalty than misdemeanors and are split into two categories.  The maximum penalties that the Court can impose on a class B felony offense is 3 ½ to 7 years at the New Hampshire State Prison and a $4,000 fine.  The maximum penalties for a class A felony are 7 ½ to 15 years at the New Hampshire State Prison and a $4,000 fine.

There are several categories of crimes, however, that have increased penalties.  For example, certain Aggravated Felonious Sexual Assault crimes carry a penalty of 10 to 30 years at the New Hampshire State Prison and many drug crimes can have a fine of $25,000 or more.

3. What is the possibility of the state dropping the charge against me?

Many people hear or read about cases in which the state ultimately dismisses a charge against someone who has been arrested.  This causes some people to try to negotiate their criminal case, especially misdemeanor or violation level offenses, without the help of a lawyer.

There are times when the State dismisses a case based on many different factors.  These could include illegal searches or seizures of a person or property, a lack of sufficient evidence to prove the case beyond a reasonable doubt or the lack of available witnesses. 

Many times, however, when a case is dismissed it is because a skilled criminal defense attorney is able to convince the prosecutor or Court that there has been a violation of the client’s constitutional rights or the State will not ultimately be successful at trial.

In addition, some people who have been arrested have unrealistic expectations about the outcome of their case.  Even if you are a first-time offender, if the offense is a felony or of a serious nature, the State will most likely insist on some type of conviction on your criminal record.

It is important to always work with an attorney after you have been arrested.  Your attorney will be able to spot legal issues that you may not be aware of and relay your version of the facts of your case in a way that is beneficial to you.

4. They didn’t read me my rights. Will my case be dismissed?

Most people are aware of their Miranda rights from tv or movies.  These are the warnings that are recited by the tv officers after placing someone under arrest: “You have the right to remain silent, anything you say can and will be used against you in a court of law.  You have the right to an attorney.  If you cannot afford an attorney, one will be provided for you….”

In real life, though, police only have to advise you of your Miranda rights if you are 1) in custody and 2) being interrogated.  Custody means that you are under arrest or in a situation similar to arrest where you are not free to leave (but this does not apply to a traffic stop).  Interrogation generally means that you are being questioned by police or the police are acting in a way to illicit responses from you.

If the police question you improperly while in custody, the Court may not allow the State to use the statements that you made to police or any other evidence that the state obtained as a result of your illegal confession.  This does not necessarily mean that the case will be dismissed, however, if the state has other evidence to try to convict you of a crime.

5. What is the difference between suspended vs. deferred sentence?

If you are able to negotiate a resolution to your criminal charge with the state, they may ask that the court impose a suspended or deferred sentence.  This would be a sentence that you would not serve immediately at the time of your guilty plea but instead you would be given the chance to meet certain conditions in order to not have to serve any jail time.

These conditions may include payment of a fine, repayment of restitution, community service, continued mental health or substance abuse treatment programming, a letter of apology to the victim and to not have contact with a certain person or place.

These sentences will almost always include the condition that you remain of good behavior, which means that you do not commit any new local, state or federal crimes, including major motor vehicle violations.  Major motor vehicle violations include offenses like DWI, Reckless Driving and Disobeying a Police Office.

Suspended and deferred sentences are similar but different in which party has the burden to prove to the Court whether the conditions of the sentence have been met.  In a suspended sentence, the state would have to prove to the Court that the defendant violated the terms of his or her sentence.  The state would do this by filing a separate Motion to Impose with the Court and holding a hearing on the motion.

For a deferred sentence, the defendant has the burden to prove to the Court that they have completed all of the conditions of the sentence within a certain time period.  Therefore, the defendant, usually through counsel, files a motion with the Court or agreement with the prosecutor that the conditions of the sentence have been met.

6. What are some of the collateral consequences for my conviction?

Each offense can have different consequences for different people depending on their unique situations.  Certainly, if you hold any sort of professional license, any conviction or even an arrest, may affect the status of that license.  It is important to disclose this information to your attorney so that they are fully aware of the possible consequences of a conviction.

Arrests and convictions may also have administrative consequences.  For example, anyone who is arrested in New Hampshire for DWI and refuses to take or fails a blood alcohol test is subject to an Administrative License Suspension by the Division of Motor Vehicle.  This six-month loss of license is separate from the loss of license if the person is also convicted by the court for the criminal offense.

Any arrest or conviction for a crime of domestic violence will have consequences for the ability to possess a firearm.

7. Can I get my conviction taken off my criminal record?

New Hampshire RSA 651: 6 lays out the criteria and time periods that you need to know to have a conviction removed from your records.  In New Hampshire, this process is known as the “annulment process” as opposed to other states which may talk about a record being “expunged”. 

The period of time that you must wait before the court will grant your Petition to Annul varies depending on the level of the offense as follows:

  • Finding of Not Guilty or Dismissal of Charges: 30 days after ruling
  • Violation: one year
  • Class B misdemeanor: two years
  • Class A misdemeanor: three years
  • Class B felony: five years
  • Class A felony: 10 years

There are some specific offenses which have different waiting periods in order to be eligible for annulment.  For example, although a DWI charge is only a class B misdemeanor and, in some instances, can be reduced to a violation level offense, this will stay on a criminal record for ten years.  This period allows the state to look back through a person’s criminal history in the event that they get arrested for a second DWI offense within ten years.