As most New Hampshire poker players are probably aware, the definition of "gambling"/"game of chance" in NH law rests on the "not under the player's control or influence" premise. By the standards of a reasonable person who knows what he's talking about, poker doesn't qualify as gambling by this definition (and arguably neither does blackjack or any other game in which players can make even one decision that affects the outcome of a bet).

The trouble is, I've been wondering (and Googling, and searching these forums) for years to find relevant case law, and I've come up empty. Does anyone know of any cases in the NH courts that shed any light on how this definition is applied? Even personal anecdotes about run-ins with the law are welcome.

The NH gaming authorities obviously do assume dominion over poker games in the handful of cardrooms around the state, but it's mostly through voluntary participation by the cardrooms (i.e., their choice to consider poker a "game of chance" and to conduct it according to the state gaming laws). The way I see it, they mostly do so to err on the side of caution, but the law would be on their side if they were to choose to operate poker games by their own rules and stakes instead of the state's blanket rules for all games of chance.

I live in New Hampshire. I practice law in New Hampshire.

There are no New Hampshire Supreme Court cases answering the question: does Poker fit the NH definition of gambling?

There is also virtually nothing that discusses the limits or lack of limits of the NH definition. The closest is a case ruling that the fact that people can vary their bets at video poker does not mean it is not gambling under the NH definition (why the lawyers in that case never thought to argue that the ability to hold or replace cards "influenced the outcome of the game" is still beyond me).

There is also an old case decided prior to the enactment of the modern statute that clearly distinguishes between wagering on a game in which you are a participant and can affect the outcome (not gambling) and wagering on a game (or event) in which you do not participate (definitely gambling). I basically think this is still the important distinction in NH law.

Most Law Enforcement officials in NH consider poker to be gambling. It is a mere assumption on their part. Most, but hardly all, cannot tell you NH's legal definition of gambling even as they insist that Poker is gambling. This is also true for many NH legislators.

That said, in 27 years of practicing criminal defense in NH I have yet to see a single case involving a home game of Poker. And there are lots of private Poker games in NH.

I think most NH folks are happy with the status quo: commercial Poker is openly licensed, regulated and commonly available in NH as part of our "charity gaming" statute. And private home Poker is ignored by law enforcement. And even though this status quo is not really what is reflected in the law, no one has yet come to me and said they want to risk going to jail in order to litigate over the issue.

Skallagrim

Well, that certainly seems to make you qualified. In this light, perhaps you can provide an educated response to this hypothetical situation:

Say that a person were to create a poker-only cardroom (strictly cash games and tournaments, no video poker or "New Hampshire Hold'em" or any of that). This cardroom is a commercial venture; the cash games are raked and the tournament buy-ins include a house cut. The room spreads whatever stakes and game types it is able to spread according to demand, risk tolerance, and physical capability. The owner runs the place like any other business, i.e., keeps proper records, pays taxes, and observes all relevant laws short of the gaming statutes and regulations that don't appear to apply to poker.

Now say that law enforcement and/or gaming authorities take an interest in this cardroom and contend that it is an unlawful gambling operation. The state charges the owner with operating an unlawful gambling business. As you might expect from where I started this thread, the owner's defense revolves around the "control or influence" premise specifically excluding poker. According to this argument, this cardroom is a skill-game parlor where participants bet on games whose outcomes are under their control or influence. In that, it is similar to a club where people can play billiards, darts, or another skill game for money, and the house takes a cut of each bet (or charges a flat fee for use of the games, or whatever).

Seeing as there is no relevant precedent (I wouldn't count the video-poker case), how do you think this case would work? If I'm not mistaken, it would have to come down to a reading and interpretation of the law in light of the exact situation at hand. The statutory text is pretty clear, and its inapplicability to poker can easily be demonstrated. Could the prosecutor successfully argue that because cardrooms ignorantly/timidly treat poker as a game of chance, that's how the law should be applied? Or would the letter of the law be likely to hold more weight?

What I posted in my last post is about all I can ethically say publicly. What I posted in my last post was information. What you are asking for now is advice.

It is not ethical for me to give advice openly over the internet.

If you want to talk about the specifics of how to do things properly, or what things might make it more or less likely to get arrested, or how to minimize exposure, or how to prepare for litigation etc ... you really should establish an attorney-client relationship with a licensed NH attorney so that these kinds of matters can be discussed confidentially.

Sorry, but that is what the law requires of me.

Skallagrim

Maybe I went about saying that the wrong way. I do not operate such a game, nor am I seeking advice for doing so. In fact, I will go even further and vow not to act in any way on anything you say. (On the odd chance that I someday engage in such a venture, I will absolutely retain an attorney, and I might even tap your shoulder for it.)

The core of what I'm wondering is, more generally, in what manner the law tends to be applied when there is no case to establish a precedent. I was hoping you could weigh in on that as someone with experience in the court system. Does it come down more to "This is what the law says in plain language" or "This is how things are already done"?

If your answer is still that you can't speak further on the matter, I'll drop it. I just want to make it clear that I'm only trying to satisfy curiosity, not trying to solicit legal advice. I totally understand why you can't cross that line.

The most I can say to satisfy your curiosity is that the NH Supreme Court has issued many rulings that have surprised and amazed me over the years (both good and bad). When it comes to interpreting a statute they hold that they have the final say. And without precedent from them, lower courts would consider themselves equally unbound. There are rules of statutory construction, but with criminal statutes the NH Supreme Court generally acts to "promote the interests sought to be achieved by the statute." And how do you know those interests? They cant go back and ask the legislature that passed them, so they guess based on a large variety of factors.

So the best that can be said is that the statute is plain, and on its face it clearly does not seem to include peer to peer Poker. But when trying to decipher the meaning of a statute it is hardly impossible that the NH Supreme Court could read in some sort of "games of chance" analysis into the statute, and then rule Poker a game of chance.

The best you can do is set up everything in a way that makes the "not impossible" also the least likely.

And beyond that I would be giving advice as to how to do that.

Skallagrim

I will also make one non-legal prediction.

Were someone to set up such a card room outside the charity gaming statute the charity gaming businesses would scream bloody murder and they would be heard by the legislature. So even if you win in court under the current statute, it is highly unlikely that your room would be legal under the new statute (which would also be passed very quickly).

This is essentially what happened in NH with respect to the businesses commonly referred to as "internet sweepstakes cafes."

Skallagrim

That is precisely the kind of insight I was looking for (though obviously the conclusions are not exactly to my liking). Thank you.

Sidebar- is the video poker in NH truly "video poker"? Or, is it a slot machine with a pretty dress on?

If the latter..... maybe that's why they didn't make the "influenced the outcome" argument? Because, it wouldn't matter?

I couldn't tell you, Larry. I only ever touch video poker when I'm in a casino where I can get "free" drinks for doing it.

In the context of the case I was referring to, whether or not it also classified as a "slot machine with a pretty dress on" was not an issue. The game at issue was your classic "video poker" game found at every casino bar.

The argument made in that case, both at the lower court and on appeal, was that the player had influence on the outcome of the game because how much they won was influenced by how much they bet and they could choose how much to bet. The NH Supreme Court ruled (rightly IMO) that being able to vary the bet had no influence on whether or not you won the game, and that influencing the outcome of the game was what was required, not merely the amount wagered.

The case dates from the 1990's. I still have no idea why it did not occur to those lawyers to argue that choosing which cards to hold or discard influences the outcome of the game.

I actually had a video poker case some years later and raised that issue. I even had a well known video poker expert lined up to testify. At first the prosecutor laughed at my defense. But after a pre-trial conference where the judge said "that is a very interesting defense, I look forward to hearing this case" the prosecutor offered to reduce the charges and punish my client only with a fine that was less than the expert's air fare to come testify. The client chose to take the deal. And so the issue remains an open one in NH.

Skallagrim

I thought most of them were "pretty dress" machines?

Hummmm... isn't that one of the (admittedly minor) points that we try to make with real poker? Or, is "winning the game" = "winning one particular hand, out of context of the long-term game" ?


Damn, we missed a chance to quote "Skallagrim's Law" as a part of gambling defense? A true loss to the legal libraries....

Guess I don't know what you mean by "pretty dress" machines.



You are sharp to notice this. But the issue is a different. How much you win is definitely an aspect of the outcome of poker, but how you get to that point is nothing like how you get there in video poker. VP operates on a strict bet-to win ratio you cannot control. How much gets put into a poker pot is something you influence and sometimes control.

I was disappointed. But it was the smart move for the client.

Skallagrim

A slot machine that pretends to be a poker machine. Meaning, you can discard a card and get the same card back, rather than using only a 52-card deck.

Meaning.... just like a slot machine, the winning combos are locked in and are independent of a true dealing mechanism... which is my definition of true "video poker"

OK.

To the best of my knowledge all the video poker machines in question here operated with the 52 (or 53 for "joker poker") card deck dealing system.

I am actually surprised that there are some that do not.