If the jury feels that the application of the law under which the defendant is accused is unjust, the jury has the power to acquit, and we all must abide by that decision. Id.

This “undisputed power” will not be presented to the jury with the kind of clarity or conviction that state and federal courts use in legal opinions after the jury has already made its decision. Jury nullification has remained a well-kept secret in courtrooms and judges/prosecutors would be very happy to keep it that way.

The word “should” is the code used to unlock the “historical prerogative of the jury and power that must exist as long as we adhere to the general verdict in criminal cases…” United States v. Dougherty, 473 F.2d 1113, 1130-33 (D.C.Cir.1972), and United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970).

The courts have decided that a single word “provides the equivalent of a jury nullification instruction.” State v. Wentworth 118 N.H. 832, 838-39, 395 A.2d 858, 862-63 (1978). The word “should” is a signal to the jury that they need not return a verdict of guilty if that verdict would not be the right thing to do under the circumstances.

Here is the instruction that contains the word:

“If you decide that the State has not proved all of the elements of the crime
charged beyond a reasonable doubt, then you must find the defendant not
guilty. If, however, you decide that the State has proved all of the elements
of the crime charged, then you should find the defendant guilty.”

“[T]he effect of ‘should’ in the charge provide[s] the equivalent of a jury nullification instruction that even if the jurors found that the State proved beyond a reasonable doubt all the elements of the offense charged, they could still acquit the defendant.” State v. Brown, 132 N.H. 520, 527, 567 A.2d 544 (1989).

In this text, the relevant portions are bolded and underlined. In practice, however, the jury has been listening to lawyers who are often confusing, intentionally or not, for days before they are instructed on the law of the case. The judge then begins to read a document containing carefully parsed legal definitions and explanations line by line through many pages (16-20 pages in a typical possession of marijuana case) and uses the word should in most of the paragraphs. It is this single use of the word “should”, in contrast to the word “must” in the previous sentence, that courts consider to be a jury instruction in and of itself.

The government is uncomfortable with the concept of jury nullification. If juries know of their power to review government action, and in that review they find the government action to be unjust, then it is the court and the prosecution who have been judged as the offenders when the jury returns their nullification verdict. That is why juries are notified of their “historical prerogative” and “undisputed power” by only a single word buried near the end of a lengthy recitation of legal concepts.

If you are thinking about relying on jury nullification, you may need counsel. Give us a call for a free initial consultation (603) 589-8015 or visit our website at sweeneylawgroupllc.com

(r) Conviction of any offense specified in RSA 265:82; [or]

(s) Conviction of any offense specified in RSA 265:82-a;

(t) Conviction of any offense specified in RSA 262:23; [Driving After Certification as an Habitual Offender]

(u) Conviction of any offense specified in RSA 265-A:43; or [Tranportation of a Controlled Drug in a Motor Vehicle]

(v) Conviction of any offense specified in RSA 265:79-b. [Negligent Driving]

This change in the law means that from September 9, 2010 forward any convition for the above listed offenses will be counted toward Habitual Offender certification by the DMV.

Don’t enter a plea to anything without first finding out what the consequences of the plea are. Your license could be gone for 1-4 years or more and you could face a lengthy manditory jail sentence for driving during that time.

If you are not sure about the plea you have been offered, give us a call at Sweeney Law Group 603-589-8015

According to Hudson police, Scott Dow, 28, was speeding when he lost control of his car and hit a tree, ending up on a lawn near 60 Kimball Hill Road.

Police said Dow, a Hudson resident, left his car after he crashed it and was arrested by police shortly afterward. He faces charges for a second offense of driving while intoxicated, operating a vehicle with a suspended license and having an outstanding bench warrant.

Dow is being held on $1,000 cash bail and is scheduled to be arraigned on Jan. 18 in the Nashua District Court.

The more factors you add in to a DWI arrest, the more you need an experienced attorney to guide you. There several potential pitfalls in this case that the average DWI case never encounters. The warrant may lead to new charges for bail jumping. The driving after suspension, if the suspension was from a DWI, may lead to potential minimum mandatory jail sentences. The driver, whoever that was, apparently left the scene of the accident leading to a potential charge of Conduct After and Accident. Speed and crash together often give rise to a claim of Reckless Operation or a potential felony charge of Reckless Conduct. There are civil claims available to the homeowner and others who may have been put in danger.

The driver escaped with minor injuries and relatively minor charges so far. According to the Nashua Telegraph: “He was charged with driving while intoxicated, second offense; operating after suspension; and on an outstanding bench warrant.”

The attorneys at the Sweeney Law Group specialize in Defending people accused of motor vehicle offenses and those injured in motor vehicle accidents. If you have questions about an accident or charge effecting your life, we would be happy to talk with you about them during a free initial consultation at our offices. Give us a call at 603-589-8015

The truth is that the “evidence” used to try to convince people to plea to DWI is most often things like: inability to locate registration in a glove box, admission to two drinks and smell of alcohol, stepped off the line twice, and didn’t stand on one foot long enough.

The police have to show up at the administrative hearings, evidentiary hearings, and trials with the evidence necessary to prove all of the parts of their case. Sometimes they don’t. If you show up prepared to go forward and they do not, then you may very well win the hearing just for showing up ready to go.

Request the hearing properly, within time limits, and with proper notice to the arresting officer and anyone else who must be notified/present. Then show up at the hearing ready to proceed. This procedure results in success in about twenty percent of cases without any challenge.

A Preliminary Breath Test (PBT) is not to be confused with the Breathalyzer test that is administered at the police station. The PBT is usually administered (stuck in the subject’s mouth) at the time of the stop at the roadside or scene. The officer says something to the effect of “Blow into this.” Since the device is generally inaccurate and the none of the safeguards are in place that would lead to an accurate result, the outcomes of these PBT tests are not admissible for most purposes at trial but help the police to establish probable cause for a questionable arrest.

RSA 265-A:15 reads: “The police officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 265-A:4.” This is an instruction rarely, if ever, given. RSA 265-A:4 reads, in pertinent part: “If the law enforcement officer, authorized agent, or peace officer fails to comply with the provisions of this section, the test shall be inadmissible as evidence in any proceeding before any administrative officer and court of this state.”

These statutes together seek to prevent the inevitable confusion arising from a DWI arrest with multiple blood alcohol tests and differing consequences of refusal. Of course, the confusion remains. The practical impact is the possible exclusion of blood alcohol results obtained illegally.