DWI NEWSWHY I DEFEND DWI CASES: Editorial Comment by Eugene Struckhoff, III
AVOIDING THE PITFALLS OF RECIPROCITY: What out-of-state licensed drivers and their counsel need to know
RECENT CHANGES IN DWI/DUI STATUTES
- NEW SENTENCING FOR AGGRAVATED DWI AND DWI 2ND OFFENSE
- NEW CDL LICENSE REGULATIONS PUT CDL HOLDERS AT GREATER RISK
- IGNITION INTERLOCK DEVICES NOW REQUIRED FOR DWI 2ND, AGGRAVATED DWI AND OPERATING AFTER REVOCATION FOR DWI
Mandatory minimum penalties for second offense DWI convictions are now bifurcated, with offenders whose offenses arise within two years of the prior DWI conviction subject to a higher minimum jail sentence. Those convicted within the first two years of the prior conviction are now subject to a minimum of thirty consecutive 24-hour periods in the House of Correction, immediately followed by seven days in an approved seven-day residential treatment program. Those convicted of a second offense DWI where the date of the offense is between two and ten years following the prior conviction face the same minimum of three 24-hour periods in the House of Correction immediately followed by the seven-day residential treatment program. The license loss for each of these offenses remains at three years. The minimum fine for both offenses has been increased to $750.00, plus penalty assessment of $180.00; the maximum penalty for each offense remains at one year. So far, judges have not seemed willing to accept plea agreements calling for three 24-hour periods in the House of Correction immediately followed by the seven-day treatment program for those defendants whose motor vehicle record shows a prior conviction that is within the two-year period. Those convicted of aggravated DWI (other than felony DWI) now face a mandatory jail sentence and must attend the seven-day residential MOP program, even if they have no prior DWI conviction and have never attended an IDIP program. That minimum jail sentence is now three 24-hour periods in the House of Correction immediately followed by the mandatory seven-day residential treatment program. As in the case of second offense DWI, the minimum fine has been increased to $750.00, plus penalty assessment of $180.00. Maximums remain unchanged.
COMMERCIAL DRIVERS BEWARE:
DWI AND OTHER MOTOR VEHICLE CONVICTIONS, AS WELL AS A REFUSAL TO SUBMIT TO A CHEMICAL TEST, MAY RESULT IN THE REVOCATION OF YOUR CDL, EVEN IF YOU WERE NOT OPERATING A COMMERCIAL VEHICLE.
THE CDL LOSS MAY BE FOR 60 DAYS TO LIFETIME, DEPENDING ON YOUR MV RECORD.
THE CDL LOSS MAY BE FOR A SIGNIFICANTLY GREATER TIME THAN FOR THE LENGTH OF THE LOSS OF YOUR NH LICENSE OR RIGHT TO OPERATE.
DWI CONVICTIONS AND REFUSALS
If you hold a commercial driver license and are convicted of DWI, even though you were not operating a commercial vehicle at the time, you face a longer revocation of your CDL license than the Court imposed for your conviction. If you have no prior DWI convictions, your CDL will be revoked for one year, or the period of time for which the Court revoked your license, whichever is longer. A ninety-day revocation for DWI in a non-commercial vehicle, would result in the loss of your CDL for one year; you would, however, be entitled to the restoration of your regular, non-commercial license at the end of the ninety days imposed by the New Hampshire court. If you are suspended by the New Hampshire Department of Safety for refusing to submit to a chemical test, even in a non-commercial vehicle, you will lose your CDL for a period of one year. A second-offense DWI conviction or refusal will result in a lifetime loss of your CDL. If you have both a DWI and a refusal arising from two separate incidents, you will lose you Commercial Driverï¿½s License for life; and, for CDL purposes, DWI convictions and refusals do not disappear from your record after 10 years, but remain there forever. Further, I understand from commercial drivers whom I have represented that, even though a driver with a DWI conviction on his or her record may have had his CDL restored, it is likely to be difficult to find or to continue employment as a commercial driver because of onerous reporting requirements imposed on employers by State and Federal law.
SERIOUS MOTOR VEHICLE VIOLATIONS
Conviction of serious offenses other than DWI can also result in lengthy CDL suspensions regardless of whether you were driving a commercial motor vehicle. A single conviction for leaving the scene of an accident will result in a one-year suspension of your CDL, even if you receive no suspension of your New Hampshire operatorï¿½s license as a result of the conviction itself. Should you at that time have on your record a previous DWI, or conduct after an accident conviction, or a refusal to submit, you face loss of your CDL for life.
MINOR MOTOR VEHICLE CONVICTIONS
Other motor vehicle convictions, even for minor offenses, can result in a revocation of your CDL. If you are convicted of speeding, reckless driving, illegally changing lanes, following too close, and have as few as two previous similar offenses within a three-year period, you face the loss of your CDL for 120 days, even if you were operating a non-commercial vehicle at the time. Should you receive a license loss for one of the offenses listed immediately above, and you have one prior conviction for any of those offenses within the last three years, you will lose your CDL for 60 days.
BETTER SAFE THAN SORRY
The law on loss of the CDL is complicated and difficult to interpret, as it is based on a combination of New Hampshire and Federal statutes and regulations. Since the New Hampshire Department of Safety has not been administering these CDL suspensions for long, there is little settled law with regard to matters which are not made clear by the language of those statutes and regulations. As a result, if you hold a CDL, you should check with a lawyer familiar with CDL law prior to entering a plea of guilty to any motor vehicle offense. If you are charged with a DWI, legal representation simply makes sense.
IGNITION INTERLOCK DEVICES NOW REQUIRED FOR DWI 2ND,
AGGRAVATED DWI AND OPERATING AFTER REVOCATION FOR DWI
If you are charged and convicted of subsequent office DWI, aggravated DWI, or operating after revocation for DWI, you will be required to install and maintain, at your own expense, an alcohol ignition interlock device that is designed to prevent you from driving if your BAC is 0.02% or more. The only way to avoid having to install and use such a device is to avoid being convicted, for the law mandates installation as a prerequisite to reinstatement. In the case of a subsequent offense or aggravated DWI conviction, the use of such a device may be required for a period of from one to two years after reinstatement of your license or right to operate. If you are convicted of operating after revocation for DWI, you will be required to install such a device not only for one to two years after reinstatement, but for the remaining period of your license revocation as well. Since the offense of operating after revocation for DWI requires revocation for one year in addition to any revocation already in effect, you face being subject to such a requirement for a minimum of two years plus the remainder of your revocation period for the DWI conviction that resulted in the revocation. You should also be aware that in the case of operating after revocation for DWI, the Court has the authority, but is not required, to require the temporary installation of such a device as a condition of bail. Although the offenses discussed above are the only offenses for which conviction will result in a mandatory order to install such a device, the Court does have the discretionary power to impose such a requirement in cases where the defendant is convicted of a first-offense DWI, but actually has a prior DWI on his or her record within the previous ten years, or where the defendant is under the age of twenty-one. The law provides that anyone who is subject to such an order must provide a certificate proving the installation of such a device as a precursor to reinstatement. Those who find themselves subject to this requirement are required to pay for installation of the device as well as monthly fees for monitoring of the device. These ignition interlock devices are sophisticated and not easily fooled. Not only can the device prevent the vehicle from initially starting if the driver does not pass the breath test, but also it is programmed to randomly notify the driver that he must pull over and blow into the device within a short period of time, or the vehicle will be shut down and no longer operate. Sanctions are in place that can penalize drivers who do not blow within the prescribed period of time or those who attempt to start the vehicle with a BAC of over 0.02% on too many occasions. Since the only way to avoid having to be required to use an ignition interlock device is not to be convicted of any charge that will result in such an order being issued against you, you should have your case reviewed to determine if you may be able to avoid such a conviction and the onerous conditions that this new requirement of the law imposes.