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 convicted 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.