? TED LOTHSTEIN AND GENE STRUCKHOFF - AN EXPERIENCED NEW HAMPSHIRE DUI/DWI DEFENSE TEAM

LOTHSTEIN GUERRIERO, PLLC

TED LOTHSTEIN AND GENE STRUCKHOFF - AN EXPERIENCED NEW HAMPSHIRE DUI/DWI DEFENSE TEAM

ADMINISTRATIVE LICENSE SUSPENSION (ALS)

ALS: THE ROLE OF THE NH DEPARTMENT OF SAFETY IN DUI/DWI ARRESTS.

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. Out-of-state license holders should take special note that your home state may revoke your license in your home state as a direct consequence of the actions of the NH Department of Safety.

  • 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."
  • 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 two to six 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.

If you refuse to submit to a post-arrest chemical test requested by the police, you face 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. If you are a New Hampshire licensed driver and you have your license on you at the time of your arrest, that license will be taken away from you and a notice of suspension, which may also be referred to as a temporary license, will be given to you by one of the law enforcement officers prior to your being released from custody.

The notice or temporary license that you are given is a pink 81/2 by 11 form with the Seal of the State of New Hampshire in the upper-left hand corner and a 6-digit number printed on the upper-right. The front of that form, SECTION IV. TEMPORARY DRIVING PERMIT will inform you if it serves as a temporary license. The temporary license is only valid for thirty days from the date the notice was given to you. On the thirtieth day, absent other action by the Department of Safety rescinding the notice of suspension, your license is automatically revoked and you may not operate a motor vehicle if you hold a New Hampshire license. If you hold an out-of-state license, you may not operate in New Hampshire until your home state notifies you of your suspension there..

If you were asked to submit to a preliminary breath test prior to your arrest, your license will not be suspended whether you refuse or submit to such a test that is at or over the legal limit applicable to you. The result of that preliminary breath test may, however, be introduced into Court as proof of guilt.

You do have a right to a hearing on whether the suspension is valid, but you must request such a hearing within thirty days, or forever lose the right to such a hearing, and you will suffer a license loss of either 180 days or two years, depending on your motor vehicle history. The thirty days begins to run on the date of your arrest, if you either refused to take a test or you took a breath test showing an alcohol concentration at or over the legal limit. If you took a blood test, you will have about thirty days from the date you receive a notice of suspension from the New Hampshire Motor Department of Safety. The notice will be sent to you shortly after the arresting department sends you notice of the results of your blood test analysis.

If you refuse to take a chemical test or if your breath test or blood test result is at or over the legal limit, the New Hampshire Department of Safety should mail you a notice of the revocation of your license or right to operate in this State. That notice will inform you not only of the date the revocation becomes effective, but also of the length of the revocation and the date when you may be eligible to reapply. The revocation date is thirty days after the date that you refused a test, or thirty days after the date that you received notice of the your suspension if you submitted to a test at or over the legal limit; in the case of a breath test, the temporary license form given to you by the police upon your release from custody following your arrest serves as that notice.

 

There, however, is a major difference between revocation for refusal and revocation for testing over the legal limit.

  • In the case of a refusal, the revocation is in addition to, or consecutive with, any other revocation, including the revocation for conviction in Court of the DWI charge.
  • If, however, you submit to a test that shows you at or above the legal limit, your revocation will run at the same time as your revocation (if you are convicted of the underlying DWI). In the case of a refusal, you face either a 180-day or a two-year loss, depending on your prior motor vehicle record, in addition to the loss imposed by the Judge in the event you are convicted of DWI. If you test over the legal limit, you face either a six-month or a two-year loss, once again depending on your prior record.

In the case of either your refusal to submit to a chemical test or your submitting to a breath test in excess of the legal limit, the arresting officer will typically take your New Hampshire driver's license from you and issue a pink temporary license that is valid for only thirty days from the date it was issued; on the 30th day, if you have not taken action to request a hearing, your license will remain revoked for the mandatory time period of either six months or two years, depending on your prior record.

If you hold an out-of-state license, or do not have your license on you, no temporary license will be issued. In either event, you will, however, receive from the New Hampshire Division of Motor Vehicles a Notice of Suspension/ Revocation Action form that will inform you when you license or New Hampshire operating privilege will be revoked and for how long a period of time. You may receive a notice of revocation from your home state based upon the New Hampshire Administrative License Suspension.

If, within the last ten years, you have a prior DWI conviction, have been revoked for an administrative license suspension, or have been revoked for refusal to take a chemical test, your revocation period will be for two years. If not, you will be revoked for 180 days for a refusal and six months for submitting to a test that is at or over the legal limit.

You have a right to a hearing to determine whether the administrative revocation of your license or operating privilege was lawful. That hearing is held in front of a Hearing Examiner who works for the Division of Motor Vehicles. You must submit a written request for a hearing that must be received by the Department within thirty days of receipt of your first notice of suspension. The temporary license served on you by the arresting officer on the date of your arrest is such a notice and starts the 30 days running. If you do not get your written hearing request to the Department of Safety within thirty days and do so in strict conformity with the rules, you will not have a hearing, and the license loss will be imposed. The hearing request rules are printed on the back of the pink ALS temporary license form.

I do not suggest that you attempt to request a hearing on your own, because the rules are not only technical in nature, but are interpreted in an even more technical way by the Bureau of Hearings. In short, they will look for a way to deny you a hearing. If my office is retained, we will file the request for a hearing for you. If the 30-day time limit is about to run out, however, and you cannot retain me or some other lawyer prior to the expiry of the time period, you should attempt to request a hearing. In order to do so, you should read the information on the back of the pink temporary license form literally and do exactly as it says. Make sure to refer to all of the grounds for overturning the order of suspension set forth in (a) through (f). Also, make certain not only to forward a copy of the letter to the law enforcement officer who issued you the temporary license, but also to indicate that you have done so in the original of your letter when it is sent to the Bureau of Hearings. Your letter also must contain a request for the presence at the hearing of the law enforcement officer who issued the temporary license (shown in Section V. OFFICER'S REPORT on the bottom of the temporary license); if you submitted to a chemical test, your request must also contain a statement that you also require the presence of the person who conducted that test, or the test result will be admitted as conclusive evidence.

I find the ALS hearing to be of great importance to your defense. Such hearings may result in overturning the revocation order, frequently provide the impetus to achieve a favorable negotiated resolution of your legal problems, and many times provide testimony I can use to win your DWI trial, for at that hearing I can cross-examine the State's witnesses, under oath, and on the record. Even if you may have missed the deadline for requesting an ALS hearing, you still can defend the DWI in Court, and based upon some recent changes in Department of Safety regulations, it may still be possible for me to obtain for you a withdrawal of the ALS suspension, although you cannot obtain a hearing on your suspension.

 

OUT-OF STATE LICENSED DRIVERS: VITAL INFORMATION FOR YOU TO CONSIDER CONCERNING YOUR DRIVER'S LICENSE. If you hold a driver's license in a state other than New Hampshire and are arrested and charged with DUI/DWI in New Hampshire, you face the loss of your driver's license in your home state. Although New Hampshire cannot revoke your out-of-state license, but only your right to operate in New Hampshire, nevertheless, your state motor vehicle department undoubtedly will revoke your driver's license if you are convicted of DWI in New Hampshire. In addition, your home state may revoke your license for an administrative loss of license (ALS) in New Hampshire. Due to the operation of an interstate motor vehicle compact among the states, the New Hampshire Department of Safety is obligated to notify your home state of your conviction. Also, you should know that your home state may impose a longer license loss than the revocation of your right to operate in New Hampshire; it almost certainly will do so if you have a prior DWI offense in your state.

For more specific and update information about the consequences in the State where you hold your license, you should contact an attorney licensed to practice in that State. You may also wish to review the DWI NEWS article entitled AVOIDING THE PITFALLS OF RECIPROCITY. If you are charged with DWI in a jurisdiction other than New Hampshire, STRUCKHOFF LAW OFFICE cannot represent you. We suggest that you visit the website of the National College for DUI Defense, where there is a map of the United States hyper linked to information about National College member DWI defense lawyers in most states.