NH House panel backs bill further punishing DWI arrestees

I recently found this article by Ted Siefer, the Union Leader's State House Bureau correspondent:

CONCORD – Repeat drunk drivers could be required to use an ignition interlock device when their driving privileges are restored under a bill backed unanimously by a House committee.

The House Transportation Committee voted 10-0 Tuesday to endorse Senate Bill 282, which was passed by the Senate in February.

The bill would allow the Commissioner of Safety to request an administrative hearing before returning the driver’s license or driving privileges to anyone who was convicted for drunk driving, aggravated drunk driving, reckless driving that involved alcohol, negligent homicide that resulted from drunken driving, or being a habitual drunk driver.

Under the bill, offenders could be required to use either a standard interlock or “enhanced” device, which takes a photo when users breathe into it, for a period of one to two years.

The bill is one of several being pushed by the Department of Safety this session in an effort to crack down on repeat drunk driving. Last month the Senate passed a House-passed bill, HB 482, which would require anyone who tries to circumvent an interlock device to use the enhanced device and face other penalties.

A full House vote on SB 282 has not yet been scheduled.

 Here's the official version of the proposed bill:

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twelve

AN ACT authorizing the commissioner of safety to require the installation of an ignition interlock device as a condition of restoring driving privileges in certain instances.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; Department of Safety Authority to Order Ignition Interlock Device Installation. Amend RSA 265-A by inserting after section 36 the following new section:

265-A:36-a Department of Safety Authority to Order Ignition Interlock Device Installation. The commissioner of safety may require an administrative hearing prior to the restoration of the license or driving privilege of a person whose license or driving privilege was revoked or suspended as the result of a conviction of any offense under RSA 265-A:45, RSA 265-A:2, RSA 265-A:3, RSA 265:79-a where alcohol was involved, RSA 262:19, or RSA 630:3, II, and, upon a finding that the safety of the person and of other users of the highways would be enhanced thereby, may order the person, as a condition of restoration of his or her license or driving privilege, to install an ignition interlock device in any vehicle registered to that person or used by that person, for not less than 12 months nor more than 2 years, subject to the same conditions and prohibitions as if the interlock was ordered by a court under the provisions of this subdivision.

2 Effective Date. This act shall take effect January 1, 2013.

(Note that this bill says nothing about "repeat offenders."  The Union Leader is the worst example of "journalism" I've ever encountered.  It's usually rife with factual, spelling, and typographical errors.)

I lost my driving privileges, due to a 1st Offense DUI in NH, for almost a year.  This was mainly due to the holy rollers at Amethyst Foundation punishing me for my "willfulness" (their actual words) in objecting to being forced to go to religious AA meetings.  During this period, I spent thousands on car rides to and from work (and mandated AA meetings). 

Bill 282 now provides additional hoops to jump through once you complete your aftercare:  an administrative hearing.  Administrative hearings, as I have posted before, are dangerous.  Unlike a criminal or civil court proceeding, administrative hearings do not afford the defendant much in the way of procedural protections.  Administrative hearings, in the name of judicial expediency and efficiency, often make quick, cursory, and subjective determinations.  See my previous post entitled:  "16 Red Flag Hearings: 14 Affirmed, 0 Reversed, 2 Remanded "

While restoring driving privileges on the condition that an ignition interlock device sounds reasonable (I would have gladly done this if it meant I could drive to work), it will likely open the door to further administrative requirements such as more aftercare being assigned, extra fees, and extended suspensions of driving privileges.  I see nothing in this bill that would restrain the administrative judges from doing this.

Further, ignition interlock devices (IIDs) are quite expensive.  In California the average cost for an IID is about $2.50 per day. Some companies additionally charge around $75-$100 for installation. You will also need to pay fees approaching $100 each month for the maintenance and calibration of your ignition interlock device.  Additionally, you will need to apply, and pay the fee, for a special IID license.  So, under NH Bill 282, the minimum one year IID could cost you around $1,300.

All this for a 1st Offense DUI, and after you complete your aftercare.  Again, my concern is that once forced into the administrative court hearing, you are relatively helpless to the whims of administrative judges, who, in the past, have not shown much leniency (or fairness, in my opinion).

A fairer version of this bill would allow the use of IIDs during the suspension period. Unless you live in Manchester or Concord, there is no public transportation.  Private rides cost $50-100, each.  Drivers on Craigslist are unreliable and sometimes dangerous.  Many people lose their jobs because they cannot afford this expense.  That's too harsh a penalty.

Not to the people at Amethyst Foundation, though, who will take glee in your suffering.  They are all former drunks who had to go through the same punishment, and will love to make you go through it, too.  Maybe, I'm sure they hope, you'll become a born-again Christian in the process, too.

After Your D.U.I. Arrest--What Happens Now?

You've been arrested for D.U.I.   What happens now?  A New Hampshire DUI is defined as two separate actions against you; a civil matter handled with the NH DMV (an administrative matter, really), and a criminal matter handled in the New Hampshire court system

Upon being released on bail, should you be that fortunate, you'll be given a yellow Defendant's copy of "The State of New Hampshire Judicial Branch Orders and Condition of Bail" or a "Bail Receipt."  At the top will be "State v. your name here." Yes, that's right, the plaintiff is the State, which represents the will of the majority of its residents. This form is also called a NHJB-2369 form, as indicated on the lower left corner in very fine print. On the second page of this form you will be told when and where your arraignment (scheduled court appearance) will be.  Alternatively, you will be informed of your arraignment date on a summons or complaint.  Your arraignment date is usually a couple months later.  You will also likely be told on the form to refrain from consuming alcohol. There will also be a Bail Commissioner's fee.

You will now have to get your impounded car back. In my case, it cost me nearly $500. Yes, that's right. Towing cost $200, "mileage" was $100, and "storage" was $200. I was just thankful to get my car back undamaged and without anything missing from it.

Enjoy your driving privileges while they last.  You might at this time start to become familiar with New Hampshire Criminal and Administrative Law.  It is important to begin to understand the complex legal labyrinth that you have entered.  If not you will be helpless.  You will need to read New Hampshire Revised Statutes Annotated (RSA) 265-A Alcohol and Drug Impairment, and the New Hampshire Code of Administrative Rules He-A 300, Saf-C 2800, and Saf-C 200. 

If you submitted to a post-arrest breath test, you undoubtedly already know your test result. The official result of your breath test appears on the pink Intoxilyzer 5000 Test Record that should have been given to you by the police prior to your release from custody. The official result is the number that appears to the right of "REPORTED VALUE."  Upon release from custody, your license will be taken and you will be issued a Temporary Driving Permit, which will expire thirty days from date of service.

If you submitted to a blood test, you will be notified by certified mail of the results of that test by means of a letter from the State of New Hampshire Department of Health and Human Services forwarded to you by the law enforcement agency that arrested you. It make take four to eight weeks, or more, for you to receive the results of your blood test, even longer if the police ask that your sample be tested for controlled drugs.  Upon release from custody, you will retain your license, but upon notice of results of an illegal B.A.C. you will be asked to immediately surrender it to the Department of Motor Vehicles.

If you refused to submit to a post-arrest chemical test requested by the police, the police will immediately take your license away and issue you a thirty day Temporary Driving Permit. You will also face an automatic Administrative License Suspension by the State of New Hampshire. The period of revocation is 180 days if your motor vehicle records show no prior convictions and no prior Administrative License Suspensions; if you have either, the revocation period becomes two years. By operation of New Hampshire law, this period of revocation cannot run at the same time as any other loss, meaning that your administrative license loss will be consecutive with any other New Hampshire suspension, including any loss you may receive in court if convicted of the underlying DWI charge.

During this time, the state prosecutor will be assembling all the evidence for its case against you: the B.A.C. determination, the police cruiser tapes, the police reports, etc... You, or your lawyer, may make a discovery request to obtain these before the day of your court appearance.

Next, you will receive the first of many letters from the State of New Hampshire Department of Safety, Division of Motor Vehicles. This first letter will state that:

"as a result of 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 exceeded the legal limit

all license/operating privileges are suspended/revoked for X months."

If you either refused to submit to a chemical test, or you submitted to one and it showed an alcohol concentration of .08 or more (.02 or more if you are under age 21), you face the loss of your New Hampshire driver's license or right to operate in New Hampshire under the Administrative License Suspension law (ALS). That loss may be for six months or two years, depending on your motor vehicle record.  My ALS was for nine months because I had four points on my driving record during the last three years (three points for a speeding ticket going 16-20 mph over the speeding limit, and one point for an expired inspection sticker).

If you submitted to a chemical test, the period of revocation will run at the same time as any other loss, meaning that your administrative license loss will be concurrent with any other New Hampshire suspension, including any loss you may receive in court if convicted of the underlying D.U.I. charge.  If you refused to submit to a chemical test, this period of revocation cannot run at the same time as any other loss, meaning that your administrative license loss will be consecutive with any other New Hampshire suspension.

After surrendering your license, you cannot drive. If you are caught driving you will be sentenced to 7 days in jail and an additional one year suspension/revocation of your license/operating privileges.

You may, in writing, request an administrative license suspension hearing within 30 days of your arrest if you refused a B.A.C. test or blew an illegal B.A.C., or within 30 days of receiving your Notice of Suspension from the Department of Safety/Motor Vehicles if you submitted to a blood test. It's difficult to prevail in these, though. The state (law enforcement)has the burden of proof by a preponderance of evidence that:

1. the officer had reasonable grounds to pull you over;

2. the facts on which the reasonable grounds were based;

3. that you were arrested properly;

4. that you either refused a B.A.C. test, or consented and were above .08;

5. that the officer advised you that refusal to the B.A.C. test would result in suspension of your license.

"Preponderance of the evidence" simply means "more likely than not." It is the lowest standard of proof.

If you decide to go for the hearing, you will definitely need an attorney, which will be expensive.

Next, your criminal court appearance. Yes...unfortunately, there's a lot more to come.

Your D.U.I. Arrest

Let's assume that you've had a couple beers, you've gotten into your car and drive off.  Under what circumstances may a police officer pull you over?   The answer is "most."

The Stop

All the officer needs is "reasonable suspicion" of criminal activity, such as speeding or a tail light out, going too slow, illegal start and stop, a call from a cell phone informant that observed the alleged driving in an erratic manner, roadblocks, cars pulled over from an accident or that have driven off the road in snowy conditions, or even those parked in a lot or on the shoulder of the road.  Reasonable suspicion is very broad.  Judges or juries just need to believe that the officer was reasonable and not acting irrationally or with ulterior motives.

Without pulling a car over, the authorities are permitted to run a check with the Registry of Motor Vehicles. If they find that the owner has a suspended license they have established reasonable suspicion to complete an investigatory stop.

Reasonable suspicion is not a high threshold, but it does have limits.  The Supreme Court has said that it must be based on "specific and articulable facts", "taken together with rational inferences from those facts" (Terry v. Ohio, 392 U.S. at 21), but it must consist of  more than an "inchoate and unparticularized suspicion or 'hunch' " (Id., at 27).

There are also three categories of exceptions police can use to avoid the need for reasonable suspicion entirely. 

One such exception is the “Community Caretaking Doctrine”.  The Community Caretaking Doctrine takes place to make sure the occupants of a car are safe, such as checking on a car pulled over on a road shoulder with a flat tire.  This exception can't be premised where the real intent is to investigate potential criminal activity.

A second, the “Emergency Exception Doctrine,” permits the apprehension of suspects where there appears to be an emergency situation requiring immediate action for the protection of life, property and safety of the public.

And, thirdly, of course, there are the very controversial sobriety check points.

Not everyone arrested for a DUI is a drunk who is grossly impaired. In New Hampshire it is illegal to drive with a blood alcohol concentration (BAC) of .08 percent or above. The .08 limit is the standard measurement used across the United States for the "impaired" driver. That can be a little as two drinks.  New Hampshire has lower BAC limits for drivers of commercial vehicles and drivers under the age of 21. In addition to alcohol the New Hampshire DUI law also includes driving under the influence of controlled substances such as marijuana, cocaine and other drugs.  Even prescription drugs taken under the direction of your physician are not exempt.  The officer will use reasonable cause to pull you over and conduct a road-side sobriety test and perform a BAC test.  Even if your BAC is within legal limits, if, in the officer's opinion, you appear impaired, you will likely be arrested.

Yes, there are quite a lot of traffic fatalities that involve alcohol, but not as many as groups like MADD (and their over-the-top emotional ads) would have you think. According to former MADD President Wendy Hamilton, there were 17,448 drunken driving deaths in 2001, up from 16,572 in 1999. An analysis by Edward Hass shows this is simply is not true. According to the National Highway Traffic Safety Administration, there were 17,448 alcohol-related traffic fatalities in 2001, but they were not all the result of drunk driving as Hamilton claims. The NHTSA defines a fatal traffic crash as being alcohol-related if either a driver or a non-occupant (e.g., pedestrian) has a blood alcohol concentration (BAC) of 0.01 grams per deciliter (g/dl) or greater in a police-reported traffic crash. To put 0.01 g/dl in perspective, ten times that amount is required to achieve a BAC of 0.10 g/dl, which is the legal limit of intoxication in most states. Yet MADD continues to mislead America by allowing the public to believe that there were 17,448 victims of drunk drivers in 2001.  And it is almost entirely due to MADD that we have the current, very strict and very punitive, D.U.I. laws that create a large influx of offenders into our prisons and leave predominantly young people with criminal records that will follow them for the rest of their lives.  I will have a lot to say about D.U.I. legislation and MADD in later posts.  I, and others, see the push for zero tolerance of drinking and driving, particularly among teenage drivers, as another form of prohibition.

Can and should you refuse a BAC test?  You waived that right when you got your license.  New Hampshire, like all other States, is what's called an “implied consent” state.  This means that the mere ownership of a drivers license gives a law enforcement officer implied consent to conduct blood-alcohol tests if the officer believes you may be under the influence (through, for instance, the use of field sobriety tests). In implied consent states, if you refuse to take a blood-alcohol tests, you have your driving privileges taken away automatically, regardless of whether you are intoxicated.  Furthermore, the 5th Amendment right against self-incrimination does not apply to blood-alcohol tests, so you must consent if asked (or face a driver’s license suspension).  Indeed, a study by the National Highway Traffic Safety Administration (NHTSA) showed that those who refused received higher fines and longer jail terms.

If you believe your stop and/or arrest was illegal, you can hire an attorney (which will be very expensive) and try your luck in NH Superior Court.  Several cases are summarized on this NH Dept of Safety site.   The arresting officer report will certainly make you out to appear very impaired and you're going to have to show he had no reasonable grounds.  Succeeding in an illegal stop/arrest hearing is not very likely.  Furthermore, the requisite legal representation will be expensive.

In short, it is very expensive and unlikely that you will prevail in contesting most D.U.I. stops and arrests.  The best strategy might be to plead guilty, move forward, and get your license back as soon as possible.

The Arrest

So at this point you've been stopped by a police officer with (arguable) reasonable suspicion to investigate. You took a turn too wide, your headlights are off, another driver reported you using their cell phone, there is an accident (not necessarily involving you) or emergency, etc...When he/she starts to grill you do not admit to having had anything to drink. Instead, ask him/her is you are under arrest for any crime, and, if not, could you please get on your way.  The police are not your friend.  Anything you say will be used against you.  Be polite, but firm.  Do not make any incriminating statements.  Police officers often pull the line, "if you're straight with me, I'll give you a break."  No. They won't give you any breaks at all.  They will use any and all evidence to nail your sorry ass.  That's their job.  (For a great video on what to do and what not to do during a police stop see FlexYourRights.org's "BUSTED:  The Citizen's Guide to Surviving Police Encounters.")

The Officer will be looking for probable cause to arrest you for being impaired, such as:

• odor of an alcoholic beverage on the driver's breath or in the car generally
• slurred speech in response to the questioning
• watery, blood shot, and/or reddish eyes
• flushed face
• droopy eyelids
• difficulty in understanding and responding intelligently to question
• fumbling with his or her driver's license and registration
• the plain-view presence of containers of alcoholic beverages in the vehicle.
• admission of consumption of alcoholic beverage

If the officer sees any of the above you will be asked to get out of the car and perform a field sobriety test (FST).  A 3-task battery of standardized field sobriety tests (SFSTs) is gradually being adopted by all states. They were recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand.  This is what is used in New Hampshire.

If you fail the SFST, you will be asked to do a test for your Blood Alcohol Concentration (BAC) either by Breathalyzer or by a Blood draw.  In all U.S. States, including New Hampshire, Driving Licensing law include implied consent to have a breath or blood sample taken for B.A.C. determination.  If you refuse, your license will be automatically be revoked (you agreed to "implied consent" when you got your license).  In additional, judges statistically impose stricter sentences on those who refuse BAC tests.

If your behavior, SFST, and BAC test, provide probable cause, you will be read your Miranda Rights and arrested.

Keep in mind the difference in the burdens of evidence.  Reasonable suspicion is needed for the officer to stop and investigate.  Probable cause is needed to arrest you.  Reasonable suspicion requires less evidence than probable cause, but more than a mere hunch. A rule of thumb is that reasonable suspicion requires 25 % proof, and probable cause requires more than 50 % statistical chance.  Therefore, if there is probable cause for arrest for DWI, as suggested by the research and examples used above, then there is reasonable suspicion to stop a driver.

Next time--going to court and getting criminal and administrative suspension of your license.