This is probably my most useful post. If you've been arrested for a DUI/DWI in New Hampshire you must arm yourself with knowledge of the laws and rules of "the game." If you do not, you will be helpless and operating blind. You will be at the mercy of people of both good and bad intentions, eager to give you poor advice. In the case of attorneys, this advice will be extremely expensive and not always correct.
Knowing the laws and rules will prevent you from greedy lawyers and abusive recovery industry workers who want to see you suffer and abuse their power. Time to go to law school!
The Difference Between Laws And Rules
Laws
A little legal history first. Law may be either common law or civil law. Common law is based on the decisions of courts under the doctrine of precedent, or "stare decisis." This judge-made law originated in England with the signing of the Magna Carta in 1215, which limited the power of King John to arbitrarily make laws and influence the court system. Most countries that had ties at one point to the British Empire, including the United States, use the common law system. The most well known examples of common law in the U.S. are the Supreme Court opinions, which establish the "supreme law of the land" on various issues. Common law systems also rely on statutes, passed by the state and federal legislatures, but may make less of a systematic attempt to codify their laws than in a "civil law" system.
Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not (as in common law) interpreted by judges. Most countries in the world today use the civil law system. Though common law also relies on statutes, the difference is that in common law those statutes are based on common law, whereas civil law statutes proceed from abstractions, formulate general principles, and distinguish substantive rules from procedural rules. In a civil law system, the courts are merely inquisitorial, unbound by precedent, and just apply the law, with very little flexibility in interpreting it.
What's nice about a common law system is that legislators are limited in what laws they propose. If their laws conflict with judge-made law in court decisions, they can be challenged. Further, state legislators are also restrained in the scope of their law-making powers by federal law (both federal judge-made law and federal legislative law) under the Supremacy Clause of the Constitution. There's a constant tension between the courts and legislators, and the state and federal governments. This design of our government, created over two centuries ago, works extremely well.
In our common law system, statutes are the result of legislators who pass and codify laws consistent with binding judge-made law. New Hampshire state legislators compile and organize all of the statutes and have limited power to modify them. These are the laws that we, as citizens of New Hampshire, must comply with.
When you were arrested, you were suspected of violating statutory law (specifically Title XII Chapter 265-A:2), and your case was adjudicated in New Hampshire District Court. RSA 265-A:2 entitled you to a court trial involving all the protections such a proceeding affords: the rules of evidence, the high threshold of proof that the state must meet, subpoena power, etc. The prosecution must prove beyond a reasonable doubt, through witnesses, each and every element of the offense with with you are charged. If it was a first Offense DUI, you are entitled to a trial by judge, but not by jury. If it was an Aggravated DUI, 2nd Offense DUI, or subsequent offense, you are entitled to a trial by jury, but you may have to submit to a trial before a judge in the District Court first and then take an appeal to the Superior Court if you are convicted.
Rules
A rule is a different creature altogether, and more difficult to understand. The executive branch of state and federal governments cannot enforce and carry out every law by themselves. The President, for example, must "take care that the laws be faithfully executed" and "preserve, protect and defend the Constitution." Imagine the President himself single-handedly doing this. Instead, he delegates some of his executive power to cabinet members, executive departments, and administrative agencies. The governor of New Hampshire (or any other state) delegates his power similarly.
The body of law that governs the administration and regulation of administrative agencies is Administrative Law. Such agencies are delegated power by the legislature (Federal or State) to act as agents for the executive (the President or Governor). Generally, administrative agencies are created to protect a public interest rather than to vindicate private rights. Administrative agencies do this by creating rules, which have the effect of law. If you break an rule of an administrative agency, you usually have to appear before an administrative board as part of a hearing, adjudged guilty or innocent, and punished. The difference between the court and agency tribunals is that with an administrative agency tribunal, the laws of evidence do not usually apply, you have fewer rights, you are adjudged by an board (not a judge or jury), and the punishments are less severe compared with the judicial courts. The threshold of proof is lower: the side with the burden need only show a "preponderance of the evidence" (more likely than not, 51% probability). Hearsay is allowed. Hearing procedures may be altered at the discretion of the administrative board. What this means for you, the defendant, is that you are not afforded the protections you would get in criminal court. It's much more risky, but this is rationalized by the need for expediency and supposed lesser penalties (if loss of a your license for 2 years may be called that).
Examples of administrative agencies include:
Federal Administration Agencies:
Patent and Trademark Office, Bureau of the Census, Food and Drug Administration, National Institutes of Health
New Hampshire Administrative Agencies:
Boxing and Wrestling Commission, Board of Chiropractic Examiners, Department of Health and Human Services, Department of Safety, Board of Acupuncture Licensing
(You can see how that the powers delegated by state legislators are more mundane compared with federal legislators, especially in New Hampshire.)
The State of New Hampshire Office of Legislative Services concisely define an administrative rule:
An administrative "rule" is defined as:
Each regulation, standard or other statement of general applicability adopted by an agency to:
- implement, interpret or make specific a statute enforced or administered by such agency or
- prescribe or interpret an agency policy, procedure or practice requirement binding on persons outside the agency, whether members of the general public or personnel in other agencies.
"AGENCY" DOES NOT INCLUDE THE LEGISLATURE OR THE COURTS
The term "agency" is defined as:
Each state board, commission, department, institution, officer, or any other state official or group, other than the legislature or the courts, authorized by law to make rules or to determine contested cases.
RULES HAVE THE FORCE OF LAW
Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise.
Rulemaking is therefore lawmaking, in areas which the legislature has decided are too specific or too detailed to be handled by legislation. The legislature therefore delegates its lawmaking power to an agency by passing a law granting rulemaking authority to the agency to adopt rules in selected areas.
After you are convicted of a DUI/DWI in New Hampshire, you'll have entered the Administrative Law arena.
The Laws And Rules You Need To Know For Your DUI/DWI
A DUI/DWI involves a combination of Law and Administrative Rules from two Administrative Agencies (Department of Health and Human Services to "rehabilitate" you, and the Department of Safety, DMV, to keep our roads safe). The laws and rules all refer to each other in one big, complicated mess. The law is pretty straightforward and predicable as to the likely outcome. The rules, however, are less protective of your rights, more open to discretion (and abuse), less predicable as to the likely outcome, and more confusing.
Laws
The laws that you need to know if you've been arrested for a DUI/DWI in New Hampshire are in
TITLE XXI: MOTOR VEHICLES, CHAPTER 265-A: ALCOHOL OR DRUG IMPAIRMENT. This is abbreviated to RSA 265-A, and this is how you will read it on all of the paperwork you receive. RSA stands for "Revised Statutes Annotated." Revised refers to the statute being the most up to date version--laws are constantly undergoing revision. Annotated refers to the added notations to how courts have interpreted the laws. RSA 265-A may be found here.
You will want to read almost every section of this Chapter. IMPORTANT: Print it out, keep it handy (i.e. by your nightstand), and read it multiple times, taking notes.
If it is beyond a reasonable doubt that the police officer had reasonable suspicion to pull you over, obtained probable cause to arrest you for driving under the influence (i.e., you were driving, failed a field sobriety test, blew over 0.08 BAC or refused to blow at all), and you were properly arrested (read your Miranda rights), you don't have much of a chance in court. You can usually obtain a free consultation with an attorney and sound him/her out to help determine this.
However, if you believe, and can provide evidence that, the stop was illegal, the tests were unreliable, or that your arrest was improper, you will want to hire an experienced criminal defense attorney and go to court. All you need to do is show that there is a reasonable doubt, but the rules governing a criminal trial (i.e., what type of evidence/testimony is admissible and when, depositions, subpoenas, motions, etc...) are complicated and you will need an attorney for this. Keep in mind that attorneys are very, very expensive. Good ones cost over $300/hour and the hours add up fast. By the time you even reach your District Court appearance your bill will be at least $4,000. This is important to consider. If your odds of prevailing aren't good, you are likely better off putting on a nice suit, cleaning up, and respectfully pleading guilty to the judge, asking for leniency if there are substantial mitigating factors in your favor.
If you plead guilty you will receive a Sentencing Order stating your plea, the fine amount (which you need to pay to the clerk then and there), and the duration of license suspension. If it's your first DUI, the judge might, on the Sentencing Order, state that you may shorten the length of suspension by enrolling in an IDIP within 45 days. Note that if you don't enroll in an IDIP by 45 days, you still must enroll and complete an IDIP before you get your license back. So, you're going to have to do the IDIP one way or another. Enroll within 45 days and lessen your suspension period.
Rules
This is where it gets confusing. After you go through this, you'll understand why this particular executive power is delegated to someone else:
He-A. Department of Health and Human Services: Office of Alcohol and Drug Abuse Prevention
Saf-C. Department of Safety: Division of Motor Vehicles.
You have no doubt already heard from the Department of Motor Vehicles. Even before your court date you should have received a Notice of Suspension/Revocation Action stating something like:
As a result of:
The Director of Motor Vehicles receiving a sworn report from a law enforcement officer alleging you submitted to a chemical test(s) that disclosed a drug/alcohol concentration in your system that met or exceeding the limit
all license/operating privileges are suspended/revoked for X months.
It will go on to say that you can submit a written request for a hearing. It also states what you must do to get your license back:
If no other suspension/revocation is in effect you may be considered for restoration of all license/operating privileges on XX/XX/XXXX, if you complete the following requirements:
1. Any New Hampshire License you currently hold must be turned in immediately
2. There is a $100.00 License/Operating privilege restoration fee required if the suspension/revocation remains in effect over 15 days. License/operating privileges by law cannot be restored if this fee is outstanding.
This is the first of two suspensions your will get: the
Administrative License Suspension (ALS). It was suspended by Department of Safety's Rule
Saf-C 2800 under New Hampshire Statutory Authority
RSA 265-A:30. You will want to read all of Saf-C 2800 and RSA 265-A:30 immediately upon receiving your notice of ALS because you have only 30 days in which to request an administrative hearing to contest it (i.e., if you believe that the stop was illegal, the sobriety test faulty, the arrest illegal, etc...). If you do not request a hearing, in writing and in proper form, within 30 days, you forever forfeit this right.
Some attorneys find ALS hearings to be of great importance to the court DUI defense. Such hearings may result in overturning the ALS, can put you in a better plea-negotiating position in court, and may provide valuable testimony for the DWI trial, because at the ALS hearing your attorney can cross-examine the State's witnesses, under oath, and on the record.
After your sentence is handed down in District Court, you will get another Notice Of Suspension/Revocation Action stating something like:
**Amended Notice**
This amended notice covers only specific information on the charge referenced. You may have other outstanding administrative requirements that must be met in addition to the ones indicated herein before you can be considered for restoration. Please refer to other suspension/revocation notice(s).
*** This notice takes effect at 12:01 AM on YY/YY/YYYY ***
As a result of your conviction in the [deleted] District Court on YY/YY/YYYY for:
Driving While Intoxicated First Offense
All license/operating privileges are suspended for Y months.
It also states what you must do to get your license back:
If no other suspension/revocation is in effect you may be considered for restoration of all license/operating privileges on YY/YY/YYYY, if you complete the following requirements:
1. You must submit a report showing successful completion of an approved IDIP or WIDIP.
2. You must submit an SR-22 insurance certificate.
3. There is a $100.00 license/operating privilege restoration fee required if the suspension/revocation remains in effect over 15 days.
This is the second suspension you get, your court-imposed license suspension. The courts are done with you at this point, and have delegated execution of the suspension to the Department of Safety; Division of Motor Vehicles. Your suspensions may run consecutively or concurrently. If you refused a BAC test, these suspensions will run consecutively. Usually, they will run concurrently.
Everything from now on will involve either the Department of Safety: Division of Motor Vehicles, or Department of Health and Human Services: Office of Alcohol and Drug Abuse Prevention. You need to know their laws ("rules"). For example, if you want to contest the ALS hearing you need to read Saf-C 2800. You will need to know He-A 700 or He-A 900 depending upon which Impaired Driver Program you have been mandated to attend (W/IDIP or Phase II). I'll go into this in more detail below.
Post-Conviction Requirements For Restoration of License Privileges
This is where the rules get complicated and confusing and where there is a huge potential of discretion and abuse, particularly when it comes to fulfilling the Department of Health and Human Services requirements for rehabilitation. The DHHS has rules that determine the process for rehabilitation.
If this is your first DUI you must take the Impaired Driver Intervention Program (IDIP) or the Weekend Impaired Driver Intervention Program (WIDIP). The rules that determine the procedure for fulfilling this requirement are in He-A 700, Impaired Driver Intervention Programs. It is essential reading (so print it out and read it multiple times).
If this is your second DUI within the last ten years, or an Aggravated DUI, you must take the Phase II (or MOP) Program. The rules determining this program are in He-A 900, Phase II Programs.
I will write in more detail about the He-A 700, 900, and the W/IDIP and Phase II programs in a later post.
Once you complete your program, you now move to the Department of Safety. You will need to read the rules on reissuance of license. These are in Saf-C 205. Also, if you disagree with the assessments made by the LADCs running the W/IDIP or Phase II programs (which is highly likely), you will need to read about how to contest them. The rules governing this process are in Saf-C 204.
Important Advice Regarding Whom To Trust For Advice
Do not trust Amethyst Foundation, Inc. or anyone running these programs for advice!
They don't care. They don't want to help you. In fact, they want to PUNISH you. Also, frankly, most of them are recovered drunks and are quite stupid. Any statements they make to you, try to get in writing, because they lie and will deny having ever said it.
Do not trust your aftercare counselor for advice!
Whereas, based on my experience, I do not believe them to be vindictive like the Amethyst Foundation people, remember, they are most likely former drunks with very little education. To be a LADC, I'm not even sure you need a GED or HS diploma. The requirements are here, and they don't state that a GED or HS Diploma is needed in their requirements. So, these people are not very bright. Never trust them for legal advice. And even those with Master's degrees (MLADCs), I've found are not very intelligent.
Even if you have an attorney, you need to understand the laws and rules.
This is just being a smart consumer and assuming responsibility for your future. It's you that's losing your license for a most likely a very long time, not the attorney. Except for being paid, the attorney might not care about your situation at all. I hired an attorney from the best firm in New Hampshire and I later found out he was wrong about several issues. He was also so naive as to trust the word of people at Amethyst Foundation and not get it in writing. So be careful! At the very least, make sure they have lots of experience dealing with DUIs in New Hampshire.
Good luck. Next time I'll talk about the W/IDIP and Phase II Program procedure. It consists of an intake, classes, assigned "aftercare", and maybe more. You need to be very careful what you say and do at this point.
