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We are representing the defendant's in State v. Lilley et al, where we challenge the City of Laconia ordinance which prohibits the display of the female nipple but not the male nipple. NH ACLU has filed an amicus brief. You can read our brief here.

FTN-NH-Supreme-Court-Appeal.pdf

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Our firm is representing two people who were cited in Gilford for being topless at the Gilford Beach. Those women are part of the Free the Nipple Movement. The Free the Nipple Movement seeks to bring attention to the inequality of women who are not allowed to be bare-chested in public while men are. One of their primary goals is to express that the female chest is not in itself sexual and to normalize women being allowed to be in public just as men are (in the past even men in this country in many places could not be topless). This issue received significant media coverage over the last year as many members and supporters demonstrated/ exercised their right to be top-free in Hampton Beach and throughout New Hampshire.

In New Hampshire, it is not a crime or against State law for women to be topless in public. Some towns such as Laconia & Gilford have ordinances prohibiting such conduct. Our clients were cited for one of the ordinances and today in Laconia District court it went to trial. During the trial we made a motion to dismiss the charges as violating their equal protection rights, 1st amendment rights, and that the town ordinance is not allowed under New Hampshire Law. The judge took the matter under advisement and will be issuing a written decision shortly.

Here is the video. Thank you Ian Freeman for filming

The following is our motion to dismiss which we encourage other people to use if they are fighting one of these cases (please note the motion is very specific to New Hampshire, and likely only helps as a starting point for other states).

THE STATE OF NEW HAMPSHIRE

       LACONIA DISTRICT COURT

 

STATE OF NEW HAMPSHIRE

 

V.

 

 

DEFENDANT’S MOTION TO DISMISS

 

 NOW COMES the defendant, and requests the town ordinance complaint against them be dismissed and the town ordinance be declared unlawful/unconstitutional.

 

FACTS

1.  Defendant is charged with Town Ordinance 3.4(G)(7) which reads: “There shall be no skinny dipping, nude tanning, female topless sun bathing or exposure of genitalia allowed on Town Beach property.”

 

2. Defendant was cited due to her nipple and breast being exposed in public. There was no exposure of genitalia and defendant at all times had an appropriate layer of clothing in that regard.

3. There is no state law which prohibits adult females, or males, from being in public with their nipples or breasts/chest exposed.

3. Defendant belongs to/supports the “Free the Nipple” Movement.

“Free The Nipple is a film, an equality movement, and a mission to empower women across the world. We stand against female oppression and censorship, both in the United States and around the globe. Today, in the USA it is effectively ILLEGAL for a woman to be topless, breastfeeding included, in 35 states. In less tolerant places like Louisiana, an exposed nipple can take a woman to jail for up to three years and cost $2,500 in fines. Even in New York City, which legalized public toplessness in 1992, the NYPD continues to arrest women. We’re working to change these inequalities through film, social media, and a grassroots campaign.

THE MOVEMENT

Free The Nipple has become a “real life” equality movement that’s sparked a national dialogue. Famous graffiti artists, groups of dedicated women, and influencers such as Miley Cyrus, Liv Tyler, and Lena Dunham have shown public support which garnered international press and created a viral #FreeTheNipple campaign. The issues we’re addressing are equal rights for men and women, a more balanced system of censorship, and legal rights for all women to breastfeed in public.

THE FACTS

Over 75 years ago it was illegal in all 50 states of America for men to be ‘Shirtless’ on a beach. A small dedicated group fought the puritanical status quo, the police and the courts. After several arrests and protests men finally won their basic human right to be ‘TOPLESS’ in public in 1936. Today there are 37 states in the USA that still arrest women for this same freedom, in some states that even includes breastfeeding. “  See http://freethenipple.com/what-is-free-the-nipple/

4. Shortly prior to the date of this occurrence, on August 23, defendant joined many other people as part of the “Free the nipple day”/ International Go Topless Day in which many women participated in Hampton New Hampshire by being topless at the beach. That event gained significant media coverage including comments regarding the movement[1].

 

5. Defendant’s conduct involved expression and political speech and has artistic value. By appearing topless, Defendant not only enjoyed the value of the right afforded to males under the town ordinance, but also engaged in promoting an idea and message.

 

ARGUMENT

I. THE TOWN ORDINANCE IS UNCONSTITUTIONAL

A: The town ordinance violates the due process/ equal protection clause of the United States Constitution as well as Art 1.and Art 2.  of the N.H. Constitution.

6. Article 1. [Equality of Men; Origin and Object of Government.] All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.

 [Art.] 2. [Natural Rights.] All men have certain natural, essential, and inherent rights - among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin.”

7. The town ordinance in question applies solely to “female topless sun bathing”. As the ordinance discriminates based upon sex/gender, it is subject to strict scrutiny.

“In considering an equal protection challenge under our State Constitution, "we must first determine the appropriate standard of review: strict scrutiny; fair and substantial relationship; or rational basis." Boehner v. State, 122 N.H. 79, 83, 441 A.2d 1146, 1148 (1982). Equal protection under the law does not forbid classifications, see 2 B. SCHWARTZ, RIGHTS OF THE PERSON § 471, at 496-97 (1968), but requires us to examine the individual rights affected and the purpose and scope of the State-created classifications. See Allgeyer v. Lincoln, 125 N.H. 503, 508-09, 484 A.2d 1079, 1082-83 (1984).

 

We apply the strict scrutiny test, in which the government must show a compelling State interest in order for its actions to be valid, when the classification involves a suspect class based on "race, creed, color, gender, national origin, or legitimacy," State v. LaPorte, 134 N.H. 73, 76, 587 A.2d 1237, 1239 (1991) (quotation omitted), or affects a fundamental right”. LeClair v. LeClair, 137 NH 213, 222 - NH: Supreme Court 1993

 

B: The ordinance in question violates defendant’s rights under the 1st amendment of the federal constitution and Art 22 of the State Constitution.

 

8. “[Art.] 22. [Free Speech; Liberty of the Press.] Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.”

 

9. By appearing topless in public, defendant engaged in speech and expression deserving of constitutional protection. Defendant was not just utilizing her right to be topless under state law, but to demonstrate to others her political viewpoint and message that the female nipple is not a sexual object.  Defendant’s message further seeks to bring attention to gender equality and how the female nipple is treated different than the male nipple both legally and for social norms. Defendant’s message seeks to continue the advancement of women’s rights and to have the conduct of being topless be accepted and normalized.

 

10. This message/movement was apparently recognized as a witness indicated people at the beach had “freed the nipple”, and Officer O’Connor said he “understood and was aware of what they were doing as far as the “Free the Nipple event”. The Free the Nipple campaign had recently received significant media coverage as a result of many women appearing topless at Hampton Beach in support of international topless day.

11. The expression of the female nipple also contains artistic value and accordingly is not considered obscene.   To be considered obscene and outside of first amendment protections, "the Government must prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value." Ashcroft, 535 U.S. at 246, 122 S.Ct. 1389 (citing Miller, 413 U.S. at 24, 93 S.Ct. 2607).

 

12. "The First Amendment commands, `Congress shall make no law . . . abridging the freedom of speech." Ashcroft, 535 U.S. at 244, 122 S.Ct. 1389. "As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear." Id. at 245, 122 S.Ct. 1389. "[A] law imposing criminal penalties on protected speech is a stark example of speech suppression." Id. at 244, 122 S.Ct. 1389. If a statute regulates speech based upon its content, application of the statute is subject to strict scrutiny. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). This places the burden upon the State to prove that the statute is "narrowly tailored to promote a compelling [state] interest. If a less restrictive alternative would serve the [state]'s purpose, the legislature must use that alternative." Playboy Entertainment Group, 529 U.S. at 813, 120 S.Ct. 1878 (citation omitted).”  State v. Zidel, 940 A. 2d 255 - NH: Supreme Court 2008

 

13. Exercising free speech and free expression are fundamental rights. Petition of Brooks, 140 NH 813 - NH: Supreme Court 1996.

 

C: The ordinance fails strict scrutiny and is therefore unconstitutional

14. Strict scrutiny is the highest burden and level of scrutiny that a law can face. This burden lies upon the State to meet.

“Strict scrutiny is the correct standard to apply when determining the constitutionality of a statute that touches upon a fundamental right. In re Sandra H., 150 N.H. 634, 638 (2004). As parental rights are fundamental and protected by due process, strict scrutiny should be applied when examining statutes dealing with these rights. Robert H., 118 N.H. at 716. Under the State Constitution, this test requires that I determine if granting custody to a stepparent or grandparent is necessary to achieve a compelling State interest. Sandra H., 150 N.H. at 638; see also Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Additionally, such a custody award must be neither unduly restrictive nor unreasonable. Seabrook Police Assoc. v. Town of Seabrook, 138 N.H. 177, 179 (1993). In this sense a strict scrutiny analysis under the State Constitution is much like the "narrowly tailored" analysis required under the Federal Constitution. See id.; Washington v. Glucksberg, 521 U.S. 702, 721 (1997).” In the Matter of RA & JM, 153 NH 82, 95-96 - NH: Supreme Court 2005”

 

15. Strict scrutiny requires that legislation be necessary to achieve a compelling governmental interest, reasonably related to its objective, and not unduly restrictive. Seabrook, 138 N.H. at 179. Intermediate and strict scrutiny also contain some type of least-restrictive-means inquiry, although the level of "fit" between the legislation's means and ends differs under each test. Id. ("requirement that regulations be neither unduly restrictive nor unreasonable [under State strict scrutiny test] is similar to the federal `narrowly tailored requirement'"); City of Dover v. Imperial Cas. & Indemn. Co., 133 N.H. 109, 126 (1990) (Souter, J., dissenting) (discussing over- and underinclusive nature of statute to determine whether it was "fairly and substantially related" to objective under intermediate scrutiny).Boulders at Strafford v. Town of Strafford, 153 NH 633, 640-641 - NH: Supreme Court 2006

 

16. The State cannot show the ordinance is necessary to achieve a compelling State interest, is narrowly tailored/ not unduly restrictive nor unreasonable, and is the least restrictive means. Accordingly, the ordinance must be deemed unconstitutional.

 

17. The United States’ Supreme Court’s recent decision on marriage equality recognizing same-sex couples right to marry is further evidence of evolving social norms of equality where the court will not hesitate to step in and declare a law unconstitutional. In Obergefell et al. v. Hodges, Decided June 26 2015, the Court held:

“Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.

This dynamic also applies to same-sex marriage.  It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.  Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.“

 

 

II. THE TOWN ORDINANCE IS UNLAWFUL AS THE TOWN LACKS AUTHORITY FOR THE ORDINANCE

18. Under state law, it is legal for women to be topless/display their nipple in public. As New Hampshire is not a “Home Rule” state, towns and cities can only pass laws that the legislature gives them permission to pass.

 

“...towns are but  subdivisions of the State and have only the powers the State grants to them.” Piper v. Meredith , 110 N.H. 291 (1970). Further, “[u]nder our State Constitution ‘(t)he supreme legislative power...(is) vested in the senate and house of representatives ....’ N.H. Const. pt. II, art.  2. See also N.H. Const., pt. I, art.     For these reasons, we have held that the towns only have ‘such powers as are expressly granted to them by the legislature and such as are necessarily implied or incidental thereto.’” Girard v. Allenstown , 121 N.H. 268, 270 71 (1981)..

19. Here, the authority for the ordinance/regulations as stated in the town regulations is:

“3.1 AUTHORITY

These Regulations are adopted pursuant to the authority granted under RSA 41:11-a”.

 

20. RSA 41:11-a holds: “41:11-a Town Property. –
    I. The selectmen shall have authority to manage all real property owned by the town and to regulate its use, unless such management and regulation is delegated to other public officers by vote of the town, or is governed by other statutes, including but not limited to RSA 31:112, RSA 35-B, RSA 36-A:4, and RSA 202-A:6.
    II. The authority under paragraph I shall include the power to rent or lease such property during periods not needed for public use, provided, however, that any rental or lease agreement for a period of more than one year shall not be valid unless ratified by vote of the town.
    III. Notwithstanding paragraph II, the legislative body may vote to authorize the board of selectmen to rent or lease municipal property for a term of up to 5 years without further vote or ratification of the town. Once adopted, this authority shall remain in effect until specifically rescinded by the legislative body at any duly warned meeting provided that the term of any lease entered into prior to the rescission shall remain in effect.”

 

21. Defendant is not disputing the jurisdiction/authority of the entire town beach regulations, just Town Ordinance 3.4(G)(7) as it relates to female topless sunbathing.

 

22. While RSA 41:11-a gives towns certain authority to regulate their property, that authority is not unlimited. The plain language of the statute indicates it does not apply when governed by other statutes. Here, the town is preempted under state law as this issue has been decided at the State level. There is no State law criminalizing the public display of the female nipple or breast. See   “N.H. .RSA 645:1 Indecent Exposure and Lewdness. –
    I. A person is guilty of a misdemeanor if such person fornicates, exposes his or her genitals, or performs any other act of gross lewdness under circumstances which he or she should know will likely cause affront or alarm.”

 

23. The legislature has authorized/condones defendant’s conduct by not prohibiting it. The ordinance is further prohibited under RSA 354-A (see section III of this motion).

 

24. The town does not have carte blanche to make illegal any conduct they want just because it is occurs on town property. Any such interpretation would necessarily make RSA 41:11-a unconstitutionally overbroad and essentially convert New Hampshire into a “home rule” state. Additionally, town ordinances cannot “be repugnant to the constitution of the State”.  Dover News Inc. v. City of Dover, 117 NH 1066 (NH 1977). As previously discussed, the ordinance runs afoul of the State Constitution.

 

III. THE TOWN ORDINANCE VIOLATES RSA 354-A STATE COMMISSION FOR HUMAN RIGHTS (ANTI-DISCRIMINATION LAWS)

 

25. 354-A:1 Title and Purposes of Chapter. – This chapter shall be known as the "Law Against Discrimination.'' It shall be deemed an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state, and in fulfillment of the provisions of the constitution of this state concerning civil rights. The general court hereby finds and declares that practices of discrimination against any of its inhabitants because of age, sex, race, creed, color, marital status, familial status, physical or mental disability or national origin are a matter of state concern, that such discrimination not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants. A state agency is hereby created with power to eliminate and prevent discrimination in employment, in places of public accommodation and in housing accommodations because of age, sex, race, creed, color, marital status, familial status, physical or mental disability or national origin as herein provided; and the commission established hereunder is hereby given general jurisdiction and power for such purposes. In addition, the agencies and councils so created shall exercise their authority to assure that no person be discriminated against on account of sexual orientation.

 

354-A:25 Construction. – No provision of this chapter shall be deemed to supersede any other provision of law for the protection of minors or for the regulation of the employment of minors. The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this chapter shall be deemed to repeal any of the provisions of the civil rights law or any other law of this state relating to discrimination because of age, sex, race, creed, color, marital status, physical or mental disability or national origin; but, as to acts declared unlawful by this chapter the procedure provided in this chapter shall, while pending, be exclusive and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned. If such individual institutes any action based on such grievance without resorting to the procedure provided in this chapter, such person may not subsequently resort to the procedure in this chapter, provided, however, that nothing in this section shall prevent any individual from applying for or receiving unemployment compensation while the procedure provided for in this chapter is pending or after the procedure provided in this chapter has been concluded. This section shall not prevent the commission for human rights from investigating and acting upon a complaint of discrimination when the complainant has also filed a claim for unemployment compensation in which the issue of illegal discrimination is raised. (Emphasis added)

 

   354-A:16 Equal Access to Public Accommodations a Civil Right. – The opportunity for every individual to have equal access to places of public accommodation without discrimination because of age, sex, race, creed, color, marital status, physical or mental disability or national origin is hereby recognized and declared to be a civil right. In addition, no person shall be denied the benefit of the rights afforded by this section on account of that person's sexual orientation.

 

354-A:17 Unlawful Discriminatory Practices in Public Accommodations. – It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, because of the age, sex, race, creed, color, marital status, physical or mental disability or national origin of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof; or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of age, sex, race, creed, color, marital status, physical or mental disability or national origin; or that the patronage or custom thereat of any person belonging to or purporting to be of any particular age, sex, race, creed, color, marital status, physical or mental disability or national origin is unwelcome, objectionable or acceptable, desired or solicited. In addition, no person shall be denied the benefit of the rights afforded by this section on account of that person's sexual orientation.

 

26. It is clear under RSA 354-A that a town would not be able to exclude someone from being on public property based solely on that person’s sex/gender. Yet, that is precisely what this ordinance accomplishes. The ordinance manages to make it illegal to be a female while enjoying the beach in the same manner that any male can.

27. The only exemption under the statute is for religious purposes (see RSA 354-A:18), which is clearly inapplicable here. It does not matter what the reason for the town ordinance is; treating females differently than males is strictly prohibited under RSA 354-A:16 and RSA 354-A:17.

 

28. The town ordinance is not only prohibited by the State Constitution, RSA 354-A invalidates the town ordinance under RSA 41:1(a), and denying someone access to a public accommodation based upon their sex is expressly deemed unlawful under RSA 354-A. Accordingly, defendant seeks this Court to dismiss the charge and declare Town Ordinance 3.4(G)(7) unlawful/unenforceable/enjoining the State from bringing any complaints under it as it relates to the female nipple/treating females differently than males..

 

CONCLUSION

The language in the town ordinance dealing with “female nipple” is unlawful as it treats females differently than males and is an equal protection violation. It also violates first amendment protections. The ordinance is outside the scope of laws that the town is permitted to adopt. The ordinance violates RSA 354-A. Defendant does not contest the portion of the ordinance dealing with exposure of genitalia. Defendant has no objection to the Court declaring the portion of the statute addressing “female nipple” as unenforceable/unconstitutional while allowing the rest of the ordinance to maintain in place; assuming the language skinny dipping/nude tanning would not apply to the display of the female nipple or female breast/chest area.

 

WHEREFORE, the defendant respectfully requests that this Court:

a:  Dismiss the charge;

b:  Declare Gilford Town Ordinance 3.4(G)(7) unlawful/unconstitutional in regard to the phrase
“female nipple”.

c: Issue an injunction/enjoin the town from bringing any further complaints against females for being topless in public.

 

Daniel Hynes

 

 

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How Does a DWI Charge Become “Aggravated”?

In the state of New Hampshire, DWI charges are not always prosecuted as misdemeanors. In particular sets of circumstances, an NH motorist may be charged with aggravated DWI. What exactly qualifies as an aggravated DWI? As dictated by New Hampshire State Statute § 265-A3, there are four specific scenarios in which aggravated DWI charges can be applied.

First and foremost, if an intoxicated motorist is driving more than 30 miles over the speed limit, an aggravated DWI charge may be applied. This charge often results when a law enforcement official pulls on motorist over for speeding. If the officer suspects that the motorist is intoxicated, he/she will request that the motorist submit to a battery of field sobriety tests. NH motorists who fail these tests will be arrested.

In the second scenario, an aggravated DWI charge can be applied if an intoxicated motorist is responsible for causing an accident that result in great bodily injury to another. According to New Hampshire state statutes, an aggravated DWI charge in this circumstance is different from vehicular manslaughter. Vehicular manslaughter charges are applied only if the accident results in the death of another.

In the third scenario, an NH motorist will be charged with an aggravated DWI offense if they attempt to flee the scene of an accident or elude law enforcement. For example, if a police officer suspects that a motorist is driving while intoxicated and signals the motorist to pull off to the side of the road, but the motorist attempts to flee, upon apprehension, the motorist can be charged with an aggravated DWI offense.

In the last scenario, aggravated DWI charges can result if an intoxicated motorist is discovered to have a passenger in the car that is under the age of 16. In the past, some NH motorists have been charged with aggravated DWI if their blood alcohol content exceeded .16%, which is double the legal limit.

Depending upon the particular circumstances surrounding the arrest and the discretion of the prosecutor, an aggravated DWI charge may be prosecuted as either a felony or a misdemeanor. If the charge is prosecuted as a class A misdemeanor, the defendant faces a minimum monetary fine of $750, as well as a minimum imprisonment term of 17 days in the county jail. Additional penalties, such as suspension of one’s license or the mandatory installation of an ignition interlock device, may also be imposed. If the aggravated DWI charge is prosecuted as a class B felony, then the minimum imprisonment term is extended to 35 days, and the minimum monetary fine that must be paid is raised to $1000.

In most instances, our experienced NH DWI lawyers can have aggravated DWI charges reduced to standard DWI charges or reckless driving charges. It may be possible to even have your charges dismissed altogether. For a better understanding of the charges you face and to learn what types of defense strategies are available for you, please contact us for a free consultation today!

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New Hampshire State Rep. Gary Wheaton was recently convicted of Reckless Driving in Derry District Court.  Wheaton received the minimums on the violation level offense, which are $500 plus penalty and 60 day loss of license.  He was stopped in the parking lot of a local Londonderry restaurant. 

http://www.seacoastonline.com/apps/pbcs.dll/article?AID=/20110215/NEWS/102150325

Tagged in: reckless driving
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Posted by on in Bankruptcy

Individuals that are currently in foreclosure may benefit from a program that many large banks offer.  It's called cash for keys.  Essentially, once a house is foreclosed and ownership transfers to the buying, that buyer does not immediately take possession of the house.  In some case, foreclosed on homeowners stay at the abode for 6 months or even a year after the foreclosure sale.  

Instead of going through the eviction process and to advert possible damage to the house from the previous homeowners or others, many banks will offer cash for keys.  The previous homeowner agrees with the bank to maintain the property and to leave at a current date.  In exchange, the bank will offer the "tenant" cash.  This can range from $1500-$5000.  If you're in the situation, it is advisible to give your bank a call and inquire about the program. 

Tagged in: cash for keys
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Posted by on in Blog

Driving under the influence of NyQuil can now land you in jail for driving under the influence.  Starting on January 1 of this year, New Hampshire has amended it's DWI laws to include over the counter cold medicines.  Simply admitting to having a cold and taking medicine could give police officer probable cause to arrest you for DWI.

http://www.dailymail.co.uk/news/article-2261994/Driving-influence-NyQuil-Sudafed-illegal-New-Hampshire-DUI-laws-toughened.html?ito=feeds-newsxml

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Posted by on in Blog

http://news.yahoo.com/judge-limits-stop-frisk-searches-yorks-bronx-175834468.html

"A federal judge on Tuesday ordered the New York Police Department to immediately stop conducting trespass stops outside certain residential buildings in the borough of the Bronx without "reasonable suspicion" that an individual is engaged in criminal activity."

"

The NYPD and Mayor Michael Bloomberg have defended the stop-and-frisk program, in which police stop and question people they suspect of unlawful activity and frisk those they suspect are carrying weapons. The NYPD and the mayor say it has reduced crime.

Opponents have contended that stop-and-frisk targets minorities and violates their Fourth Amendment rights for protection against unreasonable searches and seizures.

In her 157-page ruling, Scheindlin said it was "difficult to believe that residents of one of our boroughs live under such a threat" of being stopped as they leave their homes.

"In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case," she wrote."

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Posted by on in Blog

http://news.yahoo.com/texas-school-force-teenager-wear-locator-chip-judge-021126100.html

"A public school district in Texas can require students to wear locator chips when they are on school property, a federal judge ruled on Tuesday in a case raising technology-driven privacy concerns among liberal and conservative groups alike."

"

The American Civil Liberties Union is among the rights organizations to oppose the district's use of radio frequency identification, or RFID, technology.

"We don't want to see this kind of intrusive surveillance infrastructure gain inroads into our culture," ACLU senior policy analyst Jay Stanley said. "We should not be teaching our children to accept such an intrusive surveillance technology."

The district's RFID policy has also been criticized by conservatives, who call it an example of "big government" further monitoring individuals and eroding their liberties and privacy rights.

The Rutherford Institute, a conservative Virginia-based policy center that represented Hernandez in her federal court case, said the ruling violated the student's constitutional right to privacy, and vowed to appeal."

GIven New Hampshire's emphasis on liberty, I do not foresee this coming to NH anytime soon. However, it is pretty outrageous conduct to be allowed anywhere in America. Students still have constitutional rights while in school.

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Posted by on in Blog

http://news.yahoo.com/college-student-wins-stalking-order-against-parents-084658542--abc-news-parenting.html

"A 21-year-old theatre student has obtained a civil stalking restraining order against her parents after convincing a judge that they attempt to control all aspects of her daily life."

"

"They basically thought that they were paying for my college tuition and living expenses that they could tell me what to do who to hang out with ... basically control all of my daily life," Ireland told ABC News.

The dean's list student's complaints against her parents began when she realized they'd installed monitoring software on her computer and her phone. They paid unannounced visits, traveling 600 miles from their home in Kansas, to meet with Aubrey's department head.

They also accused their daughter of promiscuity, doing drugs, and having mental issues to the point where they were considering going to court to order that she get treatment.

"My mom has always been very overly involved," Ireland said. "I would have to get on Skype all the time to show them that I was in my dorm room, or there were nights I had to leave my Skype on all night and my mom would watch me basically sleep.""

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Posted by on in Criminal Defense

Under New Hampshire RSA 179:10, it is unlawful for a minor (under 21) to consume or possess alcohol.  This is a violation level offense with a minimum fine of $300 for first time offenders.  Subsequent offenses raise the minimum fine to $600.

Additionally, any minor convicted under this statute faces license revocation pursuant to RSA 263:56-b.  At the discretion of the court, a minor may lose her license for a minimum of 90 days and a maximum of 1 year.

If you have been arrested for under age possession or intoxication, it is critical to speak with an experienced criminal attorney in order to safeguard your rights. 

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New Hampshire's finest were out in full force on New Year's Eve keeping the roads safe.  Remember be smart and don't drink and drive.

http://bedford-nh.patch.com/articles/nh-state-police-arrest-15-for-dui-on-new-year-s-eve

Tagged in: state police
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WMUR is reporting that Manchester lawyer Lisa Biron is facing a charge of sexual explotaition of a minor.  Allegedly, Ms. Biron solicated a minor for the purpose of taking him to Canada in order to engage in sexual activity.  Since she took the minor across state lines, the U.S. Attorney's office is prosecuting the case.

She is up on additional charges, and has plead not guilty.

http://www.wmur.com/news/nh-news/Lawyer-faces-new-child-exploitation-charge/-/9857858/18003296/-/9pg3x1/-/index.html

Tagged in: federal
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Posted by on in Criminal Defense

New Hampshire RSA 637:4 Theft by Unauthorized Taking is defined as, "A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof."

The penalties for theft are found in NH RSA 637:11

637:11 Penalties. – 
    I. Theft constitutes a class A felony if: 
       (a) The value of the property or services exceeds $1,500, or 
       (b) The property stolen is a firearm, or 
       (c) The actor is armed with a deadly weapon at the time of the theft, except that if the deadly weapon is a firearm, he shall be sentenced in accordance with RSA 651:2, II-g. 
    II. Theft constitutes a class B felony if: 
       (a) The value of the property or services is more than $1,000 but not more than $1,500, or 
       (b) The actor has been twice before convicted of theft of property or services, as a felony or class A misdemeanor, or 
       (c) The theft constitutes a violation of RSA 637:5, II(a) or (b), or 
       (d) The property or services stolen are from 3 separate business establishments within a 72-hour period, or 
       (e) The property is stolen with intent to resell or distribute. It would be prima facie evidence that the offense constitutes theft with intent to resell or distribute when the theft consists of goods or merchandise in quantities that would not normally be purchased for personal use or consumption, or 
       (f) The property received in violation of RSA 637:7 consists of goods or merchandise in quantities that would not normally be purchased for personal use or consumption, or 
       (g) The actor has twice before been convicted of offenses under RSA 637:3-a, II and the present and prior convictions were based on offenses committed within a 36-month period. 
    III. Theft constitutes a misdemeanor if the value of the property or services does not exceed $1,000.

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Yes, in the State of New Hampshire you are legally allowed to use non-deadly force when you reasonably believe that such force is necessary to prevent or terminate criminal trespass.  The statute codifying this is NH RSA 627:7 - Use of Force in Defense of Premises.

"A person in possession or control of premises or a person who 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, but he may use deadly force under such circumstances only in defense of a person as prescribed in RSA 627:4 or when he reasonably believes it necessary to prevent an attempt by the trespasser to commit arson."

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The statute is relatively narrow.  Shooting at someone on your lawn, is not advisable. 

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The statute reads:

I.  Any person held in official custody who commits an assault under RSA 631 is guilty of an offense under this section

II.  Aninmate is guilty of aggravated assault on a corrections staff member when, with intent to harass, threaten, or alarm a person whom the inmate knows or reasoanbly should know to be an employee of such facility, or an employee of any law enforcement agency, the inmate causes or attempts to cause such employee to come in contact with blood, seminal fluid, urine, or feces by throwing or expelling such fluid or material.

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The statute then goes on to define terms in the body of the paragraphs I and II.  Make no mistake, Assault by Prisoners is a serious offense and when a police officer and other employee is involved this is a felony charge. 

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Posted by on in Blog

On Wednesday, December 19 a Derry man was arrested for going 108 mph on 93 N in a construction zone near exit 5.   He's set to be arraigned in February. 

http://www.londonderrynh.net/2012/12/derry-man-arrested-for-108mph-in-construction-zone-on-i93/58600

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David Connare was charged with DUI and Reckless driving following a crash on 93 N in October.  He was arraigned in Manchester district court on December 10, 2012. 

http://www.unionleader.com/article/20121017/NEWS07/710189990

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What are lesser included offenses?  These are crimes that contain the same elements as more serious charges.  One example is robbery.  Robbery is larceny by force.  You can think of larceny as theft.  You take someone's property with the intent to permantely deprive them. These are all elements of robbery as well.  However, robbery also includes the use of force or intimination.  The state can't convict you of robbery, larceny, and assault.  If you are convicted of robbery, then under the merger doctrine the lesser offenses are merged into the more serious offense. 

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The simple answer to this is...replevin.  It's one of those odd words that isn't really known outside of attorneys.  A writ of replevin is a state court remedy that allows a creditor to recover unlawfully held goods. In the case of bankruptcy, a debtor who neither reaffirms the debt nor surrenders the property is unlawfully holding the property.  Thus, the creditor must obtain judgment in state court and have the court issue a writ of replevin.  The writ must be served by a sheriff upon the debtor.  The debtor then must surrender the property or by in contempt of a court order. 

Tagged in: replevin
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A Hillsborough County Superior Court jury convicted Myles Webster of convicted murder today.  The incident stemmed from a March 21 shooting on the corner of Wayne and Rimmons streets in Manchester, New Hampshire.  Webster was being chased by Manchester Daniel Doherty after an attempted robbery.  Webster emptied his .357 Glock semi-automatic pistol as Doherty lay on the ground.  Luckily, the officer was not killed in the incident.  The details are below. 

http://www.unionleader.com/article/20121211/NEWS03/121219892

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