By: Jim Rosenberg
NH RSA 263:57-b - Issues to Anticipate after Jan. 1, 2016
Effective on January 1, 2016, the State of New Hampshire will, for the
first time, allow for a limited driving privilege for those convicted
of a first offense under RSA 265-A:2, I, which is New Hampshire’s
DWI/DUI law. Our DWI/DUI attorneys have taken steps to review the new
law, investigate how the Department of Safety will respond to it and are
actively advising our clients regarding how this law may impact their
decision making when negotiating and fighting DWI/DUI charges.
The new law supplies a limited driving privilege for those convicted of
a first offense DWI for the purpose of driving to employment, alcohol/drug
rehabilitation programs, school, job training or required medical treatment.
The law does not apply to everyone. By its terms, the new law will supply
relief only to those convicted of a first offense under the DWI/DUI statute.
The law will not apply to any person convicted of Aggravated DWI, DWI
Subsequent Offense, vehicular homicide or to any conviction involving
driving a commercial vehicle. After consultation with the Department of
Safety, our attorneys have further learned that the new restricted license
will not apply to any person convicted of DWI/DUI
prior to January 1, 2016. However, the restricted license will apply to anyone
after January 1, 2016, even if the offense took place prior to that time. Importantly,
the restricted license will not be immediately available for even those
that qualify for consideration under the statute. A restricted license
will not be effective until the person has been suspended, either due
to a court imposed license loss or administrative suspension, for at least
45 days. Thus, a person convicted of DWI/DUI must suffer some license
loss without enjoying the benefit of the limited diving privileges available
with a restricted license under the new statute.
In order for a driver to avail himself/herself of the new restricted license,
a petition must be filed with the Court seeking restoration of an operator’s
license with limited driving privileges. A driver must supply proof of
financial responsibility, which typically means that the driver must first
secure an SR-22 or proof that his/her privilege to drive is insured.
A petition to the court must demonstrate the
need for the limited driving privilege. To show such a need, the petition must
establish at least one of the following:
- The driver must operate a vehicle as a part of their job;
- The driver must operate a vehicle to seek employment or to get to and from work;
- The driver must operate a vehicle to get to or from an alcohol, drug treatment,
or rehabilitation program;
- The driver or a member of their immediate family requires medical treatment
on a regular basis and the person must operate a motor vehicle so treatment
may be obtained;
- The driver must operate a vehicle to continue his or her education; and/or
- The driver must operate a vehicle to attend job training.
Some proof of one or more of these obligations will be required in order
to file such a petition with the court. Proof may include documentary
evidence from the employer, program, medical treatment facility, state
approved educational institution or other destination. For example, we
will be advising our clients wishing to petition for a restricted driving
privilege to secure a letter from an employer explaining that presence
at work is necessary, public transportation is not available and that
the employee relies on his/her license in order to commute to and from
his/her employment. Such a letter may also come from a medical provider
or educational institution.
There are several unanswered questions that lawyers and defendants will
confront as they begin to test the new statute. The statute appears only
to apply to licenses losses issued by the sentencing court following a
conviction for a DWI/DUI first offense. After consulting with officials
for the Department of Safety, it appears that a restricted license
will not apply to administrative license losses issued by Department of Safety
as a consequence of either a refusal to perform a requested breath or
blood test or a test resulting in a BAC exceeding a 0.08. Typically, there
are two potential license losses to confront when a client faces DWI/DUI
charges: the license loss due to a criminal conviction for DWI/DUI in
court as well as a license suspension which occurs due to a defendant’s
decision to refuse a breath or blood test or submit to one with a result
greater than a 0.08. The administrative suspension is 6 months long. According
to Department of Safety, the restricted license will not provide relief
from the administrative suspension.
The fact that the benefit of the restrict license applies only to license
losses issued by courts following DWI first offense convictions, puts
even greater emphasis on negotiations in DWI/DUI cases. Often our lawyers
succeed in negotiations by urging the prosecutor to “drop”
the administrative suspension in return for a plea bargain to the DWI/DUI
charge in court. The other way to avoid the administrative suspension
is by demanding a hearing at the Department of Safety and successfully
objecting to the imposition of the administrative suspension. Either way,
dropping or defeating the administrative suspension will be necessary
for anyone wishing to benefit from a restricted license. Likewise, the
restricted license will not be available to mitigate the impact of lesser
charges than DWI/DUI, such as license losses due to convictions for Reckless
Operation or other motor vehicle offenses. Historically, defense attorneys
push for Reckless Operation offers instead of agreeing to convictions
for DWI/DUI. A Reckless Operation conviction comes with a 60 day license
loss. The restricted license under the new statute will not apply to this
or other licenses losses which flow from convictions from motor vehicle
offenses other than a first offense DWI/DUI.
Various other uncertainties will continue to exist as the new law comes
into practice. The petition seeking a restricted license must be submitted
to the sentencing court. Courts and judges vary in New Hampshire regarding
their responses to DWI/DUI charges and it could be that some courts are
more open than others to granting petitions for restricted driving privileges.
It is also possible for defense attorneys to attempt to incorporate the
possibility of a restricted license into certain plea negotiations by
asking the prosecutor to support or assent to a defendant’s petition
to the court for a restricted license. This also raises the possibility
that the prosecutor may object in certain cases to such requests.
In sum, the new restricted license will impact the way that defendants
and defense attorneys consider a range of outcomes in
DWI cases. For some clients, the restricted operating privilege may supply a valuable
mechanism to return to the road sooner for the limited purposes of traveling
to work, school or other medical treatment. Priorities in defending DWI/DUI
cases will be different for other clients. Zealously fighting DWI/DUI
charges, which are classified as crimes, with the goal of avoiding convictions
through either negotiation or trial will remain the priority for other
clients concerned with the stigmatizing impact of a DWI/DUI conviction.
For attorneys defending DWI cases, it will be imperative to understand
the new law, test it through the courts and Department of Safety and to
advise clients regarding the benefits and detriments of pursuing a restricted
license in the context of defending DWI/DUI charges.
Shaheen & Gordon, P.A. defends criminal cases in State and Federal
Courts. Our New Hampshire criminal defense attorneys regularly defend
DWI/DUI cases, assisting clients to understand and mitigate the consequences
of this offense. Should you face charges for impaired driving, our DWI/DUI
attorneys stand ready to fight your case!
Contact Shaheen & Gordon, P.A. for a FREE & confidential consultation. We represent clients throughout
the state from offices in Manchester, Concord, and Dover.