12 April 2007

Court rules on NH State Rep Francouer's immunity case: She wasn't arrested so it doesn't apply.

Okay, I've addressed the Duke rape dismissal and fellow SAABer Kurt Vonnegut's passing so now on to today's headline story involving the interpretation of NH Article 21, Part Second of the NH Constitution as it applies to a State Rep's traffic case.

As noted in this post, State Rep Bea Francoeur was pulled for 44 in a 30, just exiting a school zone on her way to Governor Lynch's inaugural. She maintained that as Andy Wolfe's Nashua Telegraph story noted, the posted speed limit is always flouted, she was not traveling at an unreasonable speed and that as a matter of law, she was on her way to an official function and thereby exempt because "No member of the house of representatives, or senate shall be arrested, or held to bail, on mesne process, during his going to, returning from, or attendance upon, the court."

In a nutshell, Nashua District Court Judge Michael J. Ryan ruled contrary to Defendant's Motion to Quash Memorandum of Law (1/2/3) in holding that NH law does not recognize a traffic stop as tantamount to arrest.

"Just the stopping of [your person] is not an arrest... are you stating that NH law is any different from that?" His Honor asked, further referencing an opinion by Supreme Court Justice David Souter when he was NH Attorney General. The rule was initially made to prevent obstruction of official business by partisan politics, and it is entirely foreseeable that there could be a scenario in which a local cop holds someone up intentionally to delay a presentation, vote or other official business.


I congratulated Prosecutor Tim Goulden (who appears with me in KingCast short film "Day in Nashua") and spoke with my Internet lawyer buddy Melissa Kowalewski, Rep. Francoeur and her attorney, State Rep. Gregory Sorg.

Goulden said that the provision "was never intended to excuse criminal cases and that she maintains her right to go to the House and say whatever she wants but she just can't speed to get there." For his part, Sorg said that "too much was being made of this" and maintained that this was simply a legal test to define the law.

People looking for an angry, self-absorbed lawmaker at today's courtroom were left disappointed as she stood with Attorney Gregory Sorg and stated simply, "we just wanted clarification on what the law is."

PS: Of course I had to good-naturedly rib the Telegraph reporter "I'll have mine out before yours!" That's the beauty of the blog, as noted by the new blog-feed newspaper, Boston NOW, where my biographer has assumed an editorship =^.)


Christopher King said...

Alderman Teeboom and I discuss the matter in emails openly shared with government and media here in NH:


FRED TEEBOOM mrteeboom@verizon.net wrote:


Are you saying that a stop by an police officer is not an arrest in NH? For example, if someone gets stopped for drunken driving, are they not under arrest, and perhps taken to jail if considered a hazard to the road following a breathelizer test, with their vehicle impounded?

I always thought the definition of am arrest is that you are restrained, not free to leave on your own choice.

Are you now saying, when stopped by police for a traffic violation you can just take off without waiting for the ticket? Surely that cannot be the case.

I would expect the decision to have been, "violation of law does not apply," but not the lame excuse, "you're not under arrest."

No matter how you feel about Francoer's behavior, there is a legitimate legal issue here.

Please explain, for I cannot see you rejoicing over this decision as you have described it.


I hope you didn't read me as "rejoicing" over this at all; I'm just stating as matter-of-factly what occurred today, and I actually like Rep. Francoeur.

"People looking for an angry, self-absorbed lawmaker at today's courtroom were left disappointed as she stood with Attorney Gregory Sorg and stated simply, "we just wanted clarification on what the law is."

I congratulated Prosecutor Goulden as a friend and as a professional courtesy.

Also, the case law in Ohio is the same as basically everywhere and that is that a routine traffic stop does not constitute an arrest. You are arrested once the cop tells you to start walking a line, or whatever beyond a mere ticket.

Christopher King said...

My intellectual property lawyer Jeffrey L. Kosiba weighs in:


With respect to the commentary on your Blog, I have to agree with you. A traffic stop is not an arrest. If you get pulled over for drunk driving, you are given a field sobriety test and/or breathalyzer. If you test positive on either account, the officer may then say "I am placing you under arrest for DUI" and mirandize you.

Up until you hear those words, you are simple being "stopped" on suspicion of doing something wrong. You can try to take off, but that will most likely give the cops sufficient probable cause to arrest you. When you are "stopped" your duty is to be cooperative as long as your constitutional rights are not being impinged. Remember - you CAN refuse to take a breathalyzer! But, that just makes you look guilty and the cuffs inevitably go on (again, probable cause applies).

This whole issue plays out as well in so called "stop and frisk" scenarios.


BTW - I am not a blog member so I couldn't post. Feel free to cut and paste.


PS: It is not widely known that one can post anonymously on blogger without being a member.

Anonymous said...

Chris - it was a pleasure to finally meet you in person!!!!

I really enjoyed the arguments yesterday and thought that Lt. Goulden did a really good job!

It's interesting that so many people don't realize that a run of the mill traffic stop, for speeding or malfunctioning equipment, while most certainly a seizure (one is definitely NOT free to leave, let alone feel free to leave) it's not an arrest (let's get down to the station and book you for DUI!).

Christopher King said...

Yeah, all of that intertwines closely with Terry v. Ohio, 392 U.S. 1 (1968) decided 5 years after the original case and 3 years after I was born just 5 miles from where the stop occurred in the first place!

I think people would be truly shocked to find out where they think they know the law, versus what the law really is. Sometimes I rubbed judges the wrong way because I was schooling them on what the law really is, while they were schooling me on the fact that the law is whatever s/he says it was, on that particular day.

Anyway, here's Terry v. Ohio:


And here's a bit about Cheryl Lessin, a flag-burner also arrested in Cleveland, for whom I wrote substantial portions of her successful Ohio Supreme Court appeal in State v. Lessin, 67 Ohio State 3d 487 (1993).


I dunno. Some people say "what the hell do you know, anyway, King?"

And I say: Plenty =^.)

PS: Did you see the Telegraph launched "TCast today?" That rocks. Wait until we get finished with the commercial work we're doing


......so we can start new films on KingCast. Some of the commercial work might be on there, in fact.

Namaste, my Sister.