Sadly, there are lawyers who advertise they get 70% of their DUI cases "off".

Lt. Dunleavy could be a great resource in this debate. I'd never read of Danny's memory being used as a speed estimate before, even though long-time posters have quoted courtroom testimony over and over.

Lt. Dunleavy remarked a few years ago that 80% of Winni boaters had alcohol on board. Not good...any of this.

Years ago, maybe even decades at this point, when MADD was changing the way people thought about drunk driving I remember asking a Marine Patrol officer at an event we were at if NH was considering an open container law for the lake. At the time he told me no and the reason was quite simple. He says every one of those large cruisers out on the lake are likely to have a bar or makeshift bar on board. In that bar will be liquor bottles with the seals broken. It simply is not feasible to enforce a law like that.

Now, as I said it was decades ago, maybe the law has changed I don't know. I do know that when I am operating a boat my beverage of choice is bottled water but that does not stop my passengers from having a beer or two while we're anchored. Drinking much of anything underway can be a little rough at times.

Citing doctor appointments, work needs, extreme weather, jury duty or whatever, you can ask for multiple continuances to carry the date well past Autumn, when the part-time officers have little reason to travel far to the rescheduled hearings. Even the most dedicated and determined officer still has the weather to contend with. It's no wonder that "officers don't show up".

Now with gas nearing $4, the MP may not even provide adequate travel compensation for those former officers, much less pay them adequately for their time in court and waiting for the court to call their cases.

District Court continuances....not so simple!
 

Another commonly repeated myth.

While officers do not appear on occasion for a trial due to a multitude of reasons, chronic non-appearances are noted by the Court and can result in sanctions against the officer and/or the officer's department and every officer knows that such unexcused events will have an effect in that courtroom on that officer's credibility. Recently the NH State Police came under unwanted scrutiny for antics the court system felt were inappropriate in granting speedy trials and keeping the court dockets clear, especially in summer months when arrests & subsequent trials swell.

Additionally, the inference that you can get multiple continuances for a simple violation (speed) is also more urban legend. There is a clearly defined procedure one must follow to be allowed a continuance, and abuse of the process or a mistake on the defendant's part will at a minimum result in a finding of guilt and worse case, additional charges for contempt of court.

For the readers convenience I will list below the NH District Court procedure for requesting and being granted continuances. Note the specific requirement that you will need the prosecutor/arresting officer's permission and
notification.

C'mon guys, its getting awfully hot in these waders! :rolleye1:



RULES OF THE DISTRICT COURTS OF THE STATE OF NEW HAMPSHIRE
GENERAL RULES
Rule 1.8-A. Continuances and postponements.

A. All motions for continuance shall be in writing, signed by the moving party stating the reasons therefor and stating that the opposing party does not desire a hearing on the motion, if such is the case.

B. No motion for continuance shall be granted without a hearing unless approval of the opposing party is obtained. The moving party shall have the burden of obtaining such approval.

C. Agreement of the parties shall constitute a waiver of hearing on a motion to continue; but notwithstanding agreement of the parties, the Court shall exercise its sound discretion in granting such continuances.

D. All motions for continuance or postponement in a civil action shall be signed and dated by counsel. Other counsel wishing to join in any motion shall do so in writing. Each motion shall contain a certificate by counsel that the client has been notified of the reasons for the continuance or postponement, has assented thereto either orally or in writing, and has been forwarded a copy of the motion.

E. In exceptional situations, motions to continue may be made orally in accordance with these rules and shall be effective as such, but it shall be the burden of the moving party to establish a record thereof by confirming such request in writing. Only attorneys, police prosecutors, or parties pro se, shall be permitted to continue orally.

F. In all civil cases, no motion for a continuance, grounded on the want of material testimony, will be granted, unless supported by an affidavit stating the name of the witness, if known, whose testimony is wanted, the particular facts expected to be proven with the grounds of such expectation, and what has been done to procure attendance or deposition, so that the Court may determine whether due diligence has been used for that purpose. No action shall be continued on such motion if the adverse party will agree that the affidavit shall be received and considered as evidence in like manner as if the witness were present and had testified to the facts therein stated; and such agreement shall be in writing at the foot of the affidavit and signed by the party or the attorney.

G. The same rule shall apply, with necessary changes, when the motion is grounded on the want of any material document, paper or other evidence of like nature; or in the absence of a material witness whom the party deems it necessary to have upon the stand.

H. All grounds for recusal that are known or should reasonably be known prior to trial or hearing shall be incorporated in a written motion for recusal and filed promptly with the Court. Grounds for recusal that first become apparent at the time of or during the hearing shall be immediately brought to the attention of the judge. Failure to raise a ground for recusal shall constitute a waiver as specified herein of the right to request recusal on such ground. If a record of the proceedings is not available, the trial judge shall make a record of the request, the Court's findings, and its order.

Per Usual, Skip is right.

First off, the example we're using is a speeding ticket. Assume there are no other charges so a continuance isn't really going to happen unless there are unusual circumstances that the DA agrees with.

While it would be a good defensive move to delay any and all responses that are legally required until the last minute, eventually the court date will arrive. That is when the BURDEN OF PROOF comes into play.

Because the speed limit crowd decided that USCG Nav Rule 6 wasn't good enough, there are specific speed parameters that would not otherwise exist. What was the actual speed of the vessel and how was that speed determined?

BURDEN OF PROOF on the Marine Patrol.

If the suspect was shown to be operating the vessel at over the HB847 limits can he/she show that conditions were such that 45/25 was not a dangerous speed under the conditions?

If the suspect can show that conditions at 45/25 were not dangerous then the BURDEN OF PROOF would then again shift to the Marine Patrol.

The Marine Patrol would have to PROVE that above 45/25 for those conditions was a dangerous speed. If the Marine Patrol can not PROVE that, then the case is dismissed.

Some might say, Why bother? Or, the process itself is part of the punishment!

Why bother? Because if I am convicted of a moving violation (speeding ticket) it not only goes on my driving record, but I lose my good driving discount and will pay top dollar for my car insurance (Massachusetts) for several years to come!

The process is part of the punishment? No doubt, but to pay it without a challenge is worse than taking a day out of work to deal with the court. Every court challenge also means the Marine Patrol has to pay the officer involved to show up and testify. Something the speed limit, "this bill won't cost any money", crowd also lied about.

This was a "FEEL GOOD BILL" so that certain legislators could go to their supporters and say, "See...I fixed it, vote for me"!

I thought it was very funny to see Joe Kenney announce he's running for governor on a fiscally conservative platform yet he was one of the leaders of this bill that will force the Marine Patrol to waste money!
Hey, the water is still chilly it's only June :emb:

referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A case presented to a Grand Jury by the prosecution will result in an indictment."

The prima facie evidence language means is that any speeds above the speed limit are automatically rated as "not reasonable or prudent" and therefore are unlawful ... so the burden would be on the DEFENDANT to prove otherwise.


Hey, the water is still chilly it's only June :emb:[/quote]

[/QUOTE]

They are talking about a speeding violation, not a lawsuit or criminal prosecution at the Grand Jury level... When was the last time you saw a speeding ticket taken to the Grand Jury??? :laugh:

Give me a break, can't you see that I messed up my previous post? Since I can't edit my posts, I'll try to repost what I actually was trying to post:

This is the legal definition for Prima Facie: "adj. Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial. A prima facie case presented to a Grand Jury by the prosecution will result in an indictment."

I was only trying to clarify that according to the legal definition, the prima facie language as used in HB 847, means is that any speeds above the speed limit are automatically rated as "not reasonable or prudent" and therefore are unlawful ... the burden would be on the defendant to prove otherwise.

You guys seem to be forgetting that the same prima facie language is used for NH highway speed limits.

I also wanted to reply to Airwave's comment "Hey, the water is still chilly it's only June", by saying that I'm still wearing my wetsuit on most days.

Sorry for messing up - but it was late when I was replying and I hit [Submit Reply] instead of [Preview Post].<!-- / message --><!-- sig -->

For someone who does not have an agenda, you spend too much time in this section of the website.

Try some diversity in your life.

I found this document, defines what Evenstar is referring to.
http://www.nhtsa.gov/people/injury/e...oc/nhspeed.pdf

Interesting points in this document.

1. Notice the words "Based on engineering and traffic investigations"
2. Minimum speed
3. Local govt can change speed limits "based on engineering and traffic investigations"

Evenstar, I'm with you on this one, we should mimic the state's speed limits ground rules for highways/roads and based the limits on ENGINEERING AND TRAFFIC INVESTIGATIONS not another lake in another state. And people should not be putt-putting around LOL!

Unreasonable speed is a definite element of the offense..
 

Unfortunately evenstar continues to misconstrue the meaning of "prima facie" as applied to the topic at hand.

I have covered this topic numerous times across several threads, so I will not rehash all the obvious details again.

Simply put....if you receive a summons next year for speed on Lake Winnipesaukee the complaint will reference that you operated at an unreasonable speed "to wit, x miles per hour in a X mph zone". The State has to offer a number of items into evidence including that you were the identified operator, that you were operating a boat with a horsepower in excess of 25 HP and that you were operating on Lake Winnipesaukee and most importantly, given the time and conditions present your operation was unreasonable!

Absent proof of each of those elements the defendant can move to have the case dismissed.

Isn't it fairly obvious to most that if you are being charged with unreasonable speed, that the State must show that element as a condition of conviction?

And the argument that you will give to counter the State's contention that your speed was unreasonable is called an affirmative defense.

It really is as simple as that....

As always, feel free to PM me for any additional explanation...:)

Skip

It's clear ES is only on this forum to argue for speed limits.I've not seen posts in other threads.There are 2 current threads related to Kayaking and I would assume she could add some insite.

I may be wrong, but I believe that there is a slight misconception among some about the effect of the prima facie standard and burden of proof. For instance, Evenstar wrote that "speeds above the speed limit are automatically rated as 'not reasonable or prudent' and therefore are unlawful…the burden would be on the defendant to prove otherwise." [Emphasis added.] Others have written similarly.

I don't mean to quibble with anyone, but it is my understanding that the prima facie language in the law means that the prosecution has to prove that the defendant exceeded the established speed limit. The prosecution does not also have to prove that the defendant's speed was unreasonable or imprudent, the law already says that a speed in excess of the limit is by definition unreasonable or imprudent, as determined by the Legislature. Now, the defendant is certainly free to attempt to challenge the allegation that he was traveling at a particular speed, or to challenge the accuracy of the instrument used to measure his speed, or some other acceptable defense. But, and this is where I differ from Evenstar and others, if the fact of speed in excess of the established limit is proven to the satisfaction of the court, the defendant may not even attempt to prove that such speed was not unreasonable. He is guilty, period, end of story… except that he would be allowed to prove that there was some exigency that excused his violation, such as a medical emergency. Notice that there is a substantial difference between determining that the defendant violated the law but has a good excuse in that one instance, and saying that speed in excess of the limit is not unreasonable or imprudent under certain circumstances -- this is not even close to the same thing as "Well, it was a nice day, there were no other boats around, so no harm, no foul. Let's get lunch." That absolutely would not be accepted as a defense to the charge. Circumstances such as the absence of other boats in the vicinity may mitigate the punishment, but they are not a defense to the charge.

Contrast this with the situation where a boater was traveling at, say, 40 mph (assuming HB 847 were in effect) in rain and dense fog. The MP may cite that boater for speeding, because 40 mph was not reasonable or prudent under those circumstances (or whatever the articulated standard is). In that case, because the boater has not committed a violation of the prima facie speed limit, the burden would be on the prosecution to prove that his speed was not reasonable or prudent and the defendant would be permitted to submit evidence and/or argue otherwise.

I am, as always, willing to be educated if I am mistaken.

Prima facie versus Absolute speed limits
 

You have just offered an excellent description of what is known as "absolute" speed limits. The State of Maine is an "absolute" State, whereby once speed is established at any rate above the posted limit, no defense is allowed.

New Hampshire is actually a hybrid state....we have a combination of both "prima facie" or "absolute" limits. The legislature determines the venue on passage of the RSA. In New Hampshire most roads are "prima facie" with the interstate highway system 65 being "absolute".

Actually, most States are now "absolute" States, as you described above, with NH being in the minority of "prima facie" or "hybrid" States.

The lawmakers that formulated HB 847 could have chosen either standard, but mostly followed the current NH motor vehicle code and put forward the prima facie limits.

Ah, there is still some truth ringing in the motto "Live Free or Die!"...;)

Hope this helped....

Skip

You mean some states have a speed limit for Absolut? How did that happen?

But all kidding aside, thanks Skip. I understand the legal differrence now, but I can't help myself -- what is the practical difference?

For instance, assume a boater is traveling at 70 mph in the Broads on a perfect June Tuesday morning (next year when the speed limit is in effect). No other boats to be seen except the MP and he gets a good radar reading of 70 mph. No silly quibbles about accuracy, cotangents, or any elements of the offense.

Let's also assume the MP stops the boater and issues a citation, and speed is the only issue.

Is the Judge going to accept the boater's argument that 70 mph was not unreasonable or imprudent under the circumstances and let him completely off the hook? Seems like a stretch to me, but that's just my opinion and I wouldn't want to bet my money or my driving record on it.

By the way, I'm not asking this to put Skip on the spot, I'm just sort of wondering "out loud," so to speak.

Good point!
 

Interesting scenario...and only the judge will know for sure.

But I also look at it another way. If the NHMP has the resources to dedicate several officers to radar enforcement on a quiet Tuesday in the middle of the Broads...then I am much less concerned about the one guy going 70 and very concerned about manpower allocation!

Here's the bottom line. The NHMP is stretched way too thin, both in manpower and money. Additionally we are talking about recreational boating with an accident rate that no matter how you spin it, is miniscule given comparison to virtually any other motorized sport or motor vehicle activity statistically.

Will the NHMP ticket some individuals next year? Absolutely. And it will be on random occasions and at a rate much less than most folks expect. Quite frankly, given the conditions, ranges and equipment and manpower available you would have to be a complete fool to travel at a high enough speed close enough to a vessel or other object used as an effective radar platform, that you would definitely deserve a ticket anyway!

My prediction? Regardless of intents or politics...the data already gathered by the NHMP will be shown as valid over the next several years.

Anyway, the media should soon be reporting that HB 847 will be going in to law January 1st. With that, I respectfully now bow out of the speed limit threads and thank the readers, whether they agree with me or not, for taking the time to read, comment and challege some of my positions. It has been a very interesting and informative debate, with but a few speed bumps along the way!

In the end I trust that all the great folks perusing these pages will boat safely and respect the rights of each of us to enjoy Winni and all NH bodies of water as if we were all family....:)

Thanks Don for your understanding, patience and great skill with the moderating sword....as usual! ;)

Over-n-out...

Skip

I only had time for a short reply earlier and chose to fix my error, as best I could. I have been out heading out kayaking all afternoon, and I might get to those other threads later this evening, if I have time.

My "agenda" in my post was just to warn people here, who are still not understanding what prima facie actually means, and seem to believe that the lake speed limit will be easy to beat in court.

I was just trying to be helpful! Apparently you don't appreciate it. Fine.

Skip, you are wrong, in stating that I'm misconstruing the meaning.

What I posted is true: "I was only trying to clarify that according to the legal definition, the prima facie language as used in HB 847, means is that any speeds above the speed limit are automatically rated as "not reasonable or prudent" and therefore are unlawful ... the burden would be on the defendant to prove otherwise."

I did not state that you couldn't contest the citation. What I posted was that the burden is on the defendant to prove evidence to the contrary. One of my past professors is a prosecutor for the NH State Police, and when I discussed this with her a year ago, she agreed with my understanding of what prima facie means.

Most judges aren't going to just let you off the hook for traveling well above the speed limit, just because you "felt" that your speed was reasonable and prudent - you need to prove that it was. And that is could be a very difficult task.

My point was clearly that the lake speed limit uses the exact language as NH highway speed limitations [RSA 265:60]. Yes, there is some wiggle-room for both. But getting caught doing 70 on the broads is likely to be as difficult to fight in court as doing 70 on a NH highway that has a 45 mph speed limit.

Evenstar, respectfully, you are not understanding Skip's posts at all.

Sorry, this is a pet peeve of mine.

This is language used in two-way communications, in this case since we're talking about Lake Winnipesaukee, Marine VHF two-way communications.

Over means you have finished speaking and expect a response.

Out means you have finished and you do not want a response.

There is no such thing as Over N Out!

So if Skip's last message was meant to rely that he has no intention of responding to anything else in this thread his signature should have been: OUT!

Just a pet peeve of mine, sorry for the rant! Over...:laugh:

'ripe for a veto'
 

If one can ever believe that the Union Leader is anything more than a Republican mouthpiece, then believe this. Today's UL, NH's tabloid newspaper disguised as a broadsheet, has a few words to say about HB 847......calling it ripe for the Governor's veto. :argue:

...expect'n Gov to veto!
 

As you know, I support HB 847, but I am also a realist and I expect Governor Lynch to veto it.

Here's why.


He knows he will easily win reelection againts Senator Joe Kenney (R) Wakefield, so Governor Lynch is now thinking beyond to the 2010 election verses Senator Gregg.

Gov Lynch has recently been unusually supportive of John McCain, here in NH.

After HB 847 passed the NH House on Jan 31, Gov Lynch said he was not sure that Winnipesaukee needs a speed limit, and would look at the bill if it made it to his desk. He said that the existing safe passage law was probabl;y all thats needed.

Sen Kenney voted yes to HB 847, and this would be an easy, black & white, issue to show how Gov Lynch is different than Republican Sen Kenney.

Last year, Gov Lynch vetoed a manditory seat belt law for 18+ year old, adults.

In order to beat Senator Gregg, who has a good solid base of support, Gov Lynch needs to prove he is no nanny-stater, liberal, Democrat. The seat belts and speed limits vetos will be two high visibility campaign issues as he tries to become a US Senator.
:):):):)
.....

For the record, that was not me that wrote that nasty letter in the Union Leader from F L Less. Someone crafted that letter and attributed it me, but it was not me. Someone stole my name! Just like Peter Limone did 35 years for a murder he did not commit, I'm getting 'ghouled' for a letter I did not write.......!

But I'm agreeing with Dave R.

Continuances can postpone hearings past the interest of the officers, especially for out of state offenders. Changing lawyers could get you another several months.

Sidney Blumenthal should be the poster child for DWI. How long has he been continuing his DWI appearances in Nashua? Five months? Sidney dropped off the radar back in April.

I understand that it's getting hot in those waders, but there can be no peeing in public!

Apples & oranges
 

Obviously the parameters surrounding a DWI offense, including the amount of technical evidence required to successfully defend or prosecute, are a significant difference over the simple procedures followed and allowed by the Court for a violation hearing in reference to a simple boating offense.

Let me repeat myself again for the interested reader....neither the Court nor the State (prosecutor) will allow multiple or lengthy continuances for simple violations, specifically for the example presented....to allow out-of-state or other offenders a chance to circumvent prosecution. It may be wishful speculation on blackdogs part, but it is not the reality within the NH District/Municipal Court system.

And, if you hire an attorney to represent you for a boating speed offense the money you spend (which is going to be at a minimum several times the greatest fine you could receive) has already served as a deterrent effect for the State. That is why if you have spent any amount of time working within the State's court systems the only time you see an attorney before a judge for a traffic violation is one that is representing him/herself.

I'd be happy to loan you my waders 2BDs, but once again when it comes to comprehending our State's criminal law sytem you are simply way in over your head....:D

Skip...:)

No waders wanted....you never know what's been in them. :D

Sidney Blumenthal isn't the poster child for continuances that I thought he was. With only a single continuance, he negotiated a 120-days suspended license for refusing the Breathalizer test and driving 70 mph in a 30mph speed zone. The officer couldn't appear.

It appears you are right....I don't comprehend this state's criminal law system. Not at all.