? 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

AVOIDING THE PITFALLS OF RECIPROCITY

More and more frequently attorneys, as well as defendants arrested for DWI, have to face the question of what will happen to the driver's license of a person charged with DWI in a state other than the state that has issued the license. I have many clients that I represent on NH DWI arrests who hold out-of-state driver's licenses. I also am frequently asked to explain to my fellow attorneys from out-of-state what New Hampshire may do to their DWI clients who hold New Hampshire driver's licenses.

The foremost principal to recognize is that, in every case where the prosecution is in a state other than the licensing state, the effects of reciprocity must be considered. By way of example, let us assume that a New Hampshire attorney is representing a NH DWI defendant; that defendant has a prior conviction in the state issuing his driver's license. Let us further assume that the prosecutor either knows nothing about the out-of-state conviction, or knows about it and is willing to offer the client a plea to a first offense with only a six-month loss. Should your client take that offer? No, not without understanding that it is very likely to result in the client losing his license in the home State for a much longer period of time, just as if he had been convicted of a second offense there. The reduction to a first offense may sound like it benefits the client, since all the New Hampshire court does is hand down a six-month loss of the right to operate in New Hampshire. But, by operation of the Interstate Driver License Compact, RSA 263:77, NH is obligated to report the NH DWI conviction to the home state, and the home state will then undoubtedly revoke the driver's license. It may do so either for the same period of time for which it would revoke for a second offense conviction, or for a defined period of time that may prove considerably longer than six months.

The length of the license loss in the home state is defined by the law of the home state. In order to advise the client of the true implications of the plea, it is imperative for the client and his attorney to understand the law of the licensing state. The possible effect of an administrative suspension of the right to operate in New Hampshire on an out-of-state licensed driver must also be considered, since many states will revoke a driver’s license of their residents if they learn that the right to operate of the license holder has been suspended or revoked in an out of state court, for virtually any reason, including administrative suspensions. Other states revoke for convictions only. The trend today, however, is to revoke the license of any license holder whose right to operate has been suspended by another state.

If an out-of-state attorney were to call me, seeking information on the New Hampshire Department of Safety’s course action with respect to a New Hampshire-licensed client who may be sentenced, let us say in Vermont, to a six-month loss of the right to operate on a first offense DWI, but who has on his New Hampshire motor vehicle record a prior DWI conviction within the last seven years, what advice can I give him? Will that client lose his New Hampshire license as a result of the Vermont plea? Absolutely, unless some bureaucrat doesn’t do his or her job right, and the conviction gets lost in the jungle of paperwork, but do not count on it. How long will that loss be? One year, initially, according to Saf-C 204:07. Why one year? Why not six months, why not three years? Because, that is how long Saf-C 204:07 says it will be. Why initially? Because Saf-C 204:07 (d) allows the licensee to petition for a hearing on license restoration after completion of a minimum of six months revocation and an approved alcohol education program and compliance with the provisions of Saf-C 205.04(a)(6).

Further traipsing through the legal quagmire of the Department of Safety Regulations under Saf-C 200, reveals a treacherous stretch of reciprocity quicksand, namely Saf-C 204.01. That section, which has a counterpart in the Motor Vehicle law of many other states, requires the Department of Safety to
suspend the license of any New Hampshire licensed driver who is found to have been suspended for convictions, administrative actions, and/or defaults in any other jurisdiction. If your New Hampshire licensed client is convicted in another state and also lost his or her license administratively for refusal to submit to chemical testing, the current position of the Department of Safety is that his or her NH license will be revoked for the entire period that he or she is under revocation or suspension in the state of the offense. Even if your client is acquitted of the underlying DWI, but is suspended for refusal to submit to testing or for submitting to a test at or over the legal limit, New Hampshire will revoke so long as the suspension remains in the state of the offense. It is worth noting, however, that the statutory authority of the Department of Safety to adopt a rule revoking for administrative actions other than defaults seems to be non-existent, and Saf-C 204.01 may be susceptible to challenge. Although there is very broad language in RSA 263:77 Article I. Findings and Declaration of Policy, nevertheless, RSA 263:77, Article IV. Effect of Conviction appears to limit the suspension authority of the licensing state to convictions only, not administrative suspensions.

In 2004, the Department of Safety updated its regulations on suspensions for reciprocity. It is interesting to note that both the former Saf-C 204.01 and Saf-C 204.06 (the predecessor to today’s Saf-C 204.07) provided for enhanced suspensions for convictions reported to the State of New Hampshire as subsequent offense DWI’s, but both replacement regulations leave out any reference to reported DWI convictions other than first offenses. Nevertheless, Saf-C 204.01(b) would mandate suspension for the same period of time as New Hampshire would have sentenced for the same conduct if it had occurred in New Hampshire. In addition, Saf-C 204.01(c) requires suspension for the same period of time as the person is under suspension in the state where the conviction occurred. The one bright light is that if the suspension is for DWI or reckless driving, then the New Hampshire suspension begins on the date of conviction in the other state, meaning that if there is some significant time difference between the suspension in the initiating state and the one in New Hampshire, the length of the New Hampshire suspension is reduced accordingly.

New Hampshire has no statutory or regulatory provision for a hardship license, emergency license, work license, or other license authorizing limited or conditional operation. Accordingly, the Department of Safety does not currently honor any such exception that may have been allowed in the State of the
conviction, although that policy is currently subject to a constitutional challenge, most likely on full faith and credit grounds.

Reciprocity law is not simple to comprehend nor necessarily easy to locate and to construe. In addition, reciprocity rules are subject to change on short notice. No one should rely on the information contained in this brief article without first checking the current state of the law and its applicability to the particular circumstance of the New Hampshire-licensed operator charged with DWI in an out-of-state jurisdiction. Nor is this article intended to be all encompassing, but rather to serve as a red flag of warning to any of you who hold a New Hampshire license or need to advise someone who does.

July 2011
Eugene C. Struckhoff, III

STATUTES AND REGULATIONS

263:77 Driver License Compact Enacted.
The commissioner of safety is hereby authorized, whenever he determines it feasible, to enter into a compact on behalf of the state of New Hampshire with any other jurisdiction legally joining therein in the form substantially as follows:

COMPACT

Article I. Findings and Declaration of Policy


(a) The party states find that:

(1) The safety of their streets and highways is materially affected by the degree of compliance with state and local ordinances relating to the operation of motor vehicles.

(2) Violation of such a law or ordinance is evidence that the violator engages in conduct which is likely to endanger the safety of persons and property.

(3) The continuance in force of a license to drive is predicated upon compliance with laws and ordinances relating to the operation of motor vehicles, in whichever jurisdiction the vehicle is operated.

(b) It is the policy of each of the party states to:

(1) Promote compliance with the laws, ordinances, and administrative rules and regulations relating to the operation of motor vehicles by their operators in each of the jurisdictions where such operators drive motor vehicles.

(2) Make the reciprocal recognition of licenses to drive and eligibility therefor more just and equitable by considering the overall compliance with motor vehicle laws, ordinances and administrative rules and regulations as a condition precedent to the continuance or issuance of any license by reason of
which the license is authorized or permitted to operate a motor vehicle in any of the party states. --- skip back to editorial

Article II. Definitions

As used in this Compact:

(a) "State" means a state, territory or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

(b) "Home state" means the state which has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle.

(c) "Conviction" means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation, or a forfeiture of bail, bond or other security deposited to secure appearance by a person charged with having committed any such offense, and which conviction or forfeiture is required to be reported to the licensing authority.

Article III. Report of Convictions

The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted; describe the violation specifying the section of the
statute, code or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or conviction was a result of the forfeiture of bail, bond or other security; and shall include any special findings made in connection therewith.

Article IV. Effect of Conviction

(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this Compact, as it would if such conduct had occurred in the home state, in the case of
convictions for:

(1) Manslaughter or negligent homicide resulting from the operation of a motor vehicle;

(2) Driving a motor vehicle while under the influence of intoxicating liquor or narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle;

(3) Any felony in the commission of which a motor vehicle is used;

(4) Failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another.

(b) As to other convictions, reported pursuant to Article III, the licensing authority in the home state shall give such effect to the conduct as is provided by the laws of the home state.

(c) If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in subdivision (a) of this Article, such party state shall construe the denominations and descriptions appearing in the subdivision (a) hereof as being applicable to and identifying those offenses or violations of a substantially similar nature, and the laws of such party state shall contain such provisions as may be necessary to ensure that full force and effect is given to this Article. --- skip back to editorial

Article V. Applications for New Licenses

Upon application for a license to drive, the licensing authority in a party state shall ascertain whether the applicant has ever held, or is the holder of, a license to drive issued by any other party state. The licensing authority in the state where application is made shall not issue a license to drive to the
applicant if:

(a) The applicant has held such a license, but the same has been suspended by reason, in whole or in part, of a violation and if such suspension period has not terminated.

(b) The applicant has held such a license, but the same has been revoked by reason, in whole or in part, of a violation and if such revocation has not terminated, except that after the expiration of one year from the date the license was revoked, such person may make application for a new license if
permitted by law. The licensing authority may refuse to issue a license to any such applicant, if, after investigation, the licensing authority determines that it will not be safe to grant to such person the privilege of driving a motor vehicle on the public highways.

(c) The applicant is the holder of a license to drive issued by another party state and currently in force, unless the applicant surrenders such license.

Article VI. Applicability of Other Laws

Except as expressly required by provisions of this Compact, nothing contained herein shall be construed to affect the right of any party state to apply any of its other laws relating to licenses to drive to any person or circumstance, nor to invalidate or prevent any driver license agreement or other cooperative arrangement between a party state and a non-party state.

Article VII. Compact Administrator and Interchange of Information

(a) The head of the licensing authority of each party state shall be the administrator of this Compact for his state. The administrators, acting jointly, shall have the power to formulate all necessary and proper procedures for the exchange of information under this Compact.

(b) The administrator of each party state shall furnish to the administrator of each other party state any information or documents reasonably necessary to facilitate the administration of this Compact.

Article VIII. Entry Into Force and Withdrawal

(a) This Compact shall enter into force and become effective as to any state when it has enacted the same into law.

(b) Any party state may withdraw from this Compact by enacting a statute repealing the same, but no such withdrawal shall take effect until 6 months after the executive head of the withdrawing state has given notice of the withdrawal to the executive heads of all other party states. No withdrawal shall affect the validity or applicability by the licensing authorities of states remaining party to the Compact of any report of conviction occurring prior to the  withdrawal.

Article IX. Construction and Severability

This Compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this Compact shall be severable and if any phrase, clause, sentence or provision of this Compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this Compact shall be held contrary to the constitution of any state party thereto, the Compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. Source. 1986, 110:1, eff. July 19, 1986. --- skip back to editorial

§ Saf-C 204.01. License Under Suspension or Revocation

(a) Upon receipt of evidence that a New Hampshire resident is under suspension or revocation for motor vehicle offenses, court defaults, or administrative actions in another jurisdiction, the commissioner shall determine if such person currently holds, or is an applicant for, a New Hampshire driver's license. Parking violations and failure to pay excise taxes shall be excluded from this rule.

(b) If the person holds, or is an applicant for a New Hampshire driver's license, the commissioner shall give the same effect to the offense or conduct reported, pursuant to (a) above, as he would if the offense or conduct had occurred in New Hampshire.

(c) If the commissioner determines the person is under suspension or revocation in another jurisdiction, s/he shall deny or suspend the person's license or driving privileges until the person furnishes evidence of compliance with the law of such other jurisdiction. Such person shall be entitled to a hearing upon request.

(d) If the suspension or revocation is for driving while intoxicated or reckless operation, the department's effective date of revocation shall be the date of final conviction in the other jurisdiction. The license revocation period shall be the same as if the conviction had taken place in New Hampshire.

Source:
#2250, eff 12-31-82; ss by #2946-a, eff 1-3-85; ss by #4451, eff 6-24-88; ss by #4844, eff 6-20-90; amd by #5274, eff 11-20-91; amd by #6249, INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C 203.01 ); amd by #7349, eff 8-22-00; ss by #8230-B, eff 12-17-04

§ Saf-C 204.07. Suspension/Revocation for Serious Offenses Under Reciprocity

(a) The commissioner shall revoke the license or operating privileges of a resident upon receipt of evidence of conviction in another jurisdiction for reckless driving, driving while intoxicated, negligent homicide resulting from the operation of a motor vehicle or manslaughter resulting from the operating of a motor vehicle.

(b) The date of revocation or suspension shall be the date of final conviction by a court of competent jurisdiction based upon a criminal or civil proceeding.

(c) If the conviction is a driving while intoxicated and there is no prior driving while intoxicated convictions, the revocation shall be for the same duration as if the conviction had occurred in New Hampshire. Restoration shall be contingent upon the person's compliance with Saf-C 205.04.

(d) If the conviction is a driving while intoxicated first offense and there is a record of prior driving while intoxicated conviction(s), the initial revocation shall be one year subject to review after successful completion of an approved alcohol education program pursuant to RSA 172-B:2-a. Upon such completion and after a minimum 6-month period of revocation, the defendant may, under the provisions of Saf-C 204.06(h), submit a written request for a hearing. Restoration shall be contingent on the defendant's compliance with Saf-C 205.04.

(e) If the conviction is for reckless operation, the minimum period of revocation shall be 60 days. If there is a record of prior reckless operation convictions within 5 years, the provisions of Saf-C 207.04 and Saf-C 205.02 shall apply.

(f) If the conviction is for either negligent homicide or manslaughter, the restoration provisions of Saf-C 209 shall apply.

(g) If action is taken under paragraphs (c), (d), (e), or (f), the defendant shall be afforded the opportunity for a hearing. Any such hearing request shall not postpone, delay or otherwise impact the revocation or suspension. The hearing shall be scheduled within 15 days from the date the request is received.

(h) At the hearing, after introduction of evidence by the state, the respondent shall have the burden of proving by a preponderance of evidence that:

(1) The respondent is not the same person named on the notice(s);

(2) The respondent was not convicted of the charges or similar charges as listed in (a) above; and

(3) The respondent's operating privilege or license was not suspended or revoked as a result of the conviction.

Source:
#2250, eff 12-31-82; ss by #2946-a, eff 1-3-85; ss by #4451, eff 6-24-88; ss by #4844, eff 6-20-90; ss by #6249, INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C 203.07 ); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss and moved by #8230-B, eff 12-17-04 (formerly Saf-C 204.06 )

Saf-C 205.04 Restoration: Influence of Alcohol or Drugs.

(a) Any person whose driver's license or operating privilege has been revoked pursuant to RSA 265:82 or 265:82-a, shall have such license or privilege restored upon meeting the following requirements:

(1) The period of revocation imposed by the court has expired;

(2) Any revoked license has been physically surrendered to the division as required, or the respondent has notified the department that the license was lost or stolen;

(3) A license application and fee are filed with the division if the revoked New Hampshire license expired or if the revokee is a new resident;

(4) The fee required by RSA 263:42, V, has been paid;

(5) All court fines have been paid and defaults cleared;

(6) The individual's file reflects documentation of successful completion of an approved alcohol education program;

(7) A negative alcohol evaluation report pursuant to Saf-C 204.02 is on file;

(8) All requirements imposed by the court in conjunction with its findings have been complied with, including but not limited to:

a. Driver certification; or
b. Professional counseling;

(9) Proof of financial responsibility in the form of an SR-22 certificate is on file; and

(10) There are no other revocations or suspensions in effect under any other statute, rule or regulation including reciprocity agreements and requirements. --- skip back to editorial

Source:
 #3170, eff 12-31-85; #4451, eff 6-24-88; ss by #4844, eff 6-20-90; ss by #6249, INTERIM, eff 6-16-96, EXPIRES 10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C 204.04)