18Jan2006… 0217h

07Mar2006… 0830h

24May2006… 2372eba

2006 SESSION

05-0082

03/09

HOUSE BILL 298

COMMITTEE: Transportation

ANALYSIS

This bill consolidates statutes relating to alcohol and drugs and the operation of vehicles, OHRVs, and boats into a single chapter in the motor vehicles title.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

18Jan2006… 0217h

07Mar2006… 0830h

24May2006… 2372eba

05-0082

03/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Six

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

260:1 New Chapter; Alcohol or Drug Impairment. Amend RSA by inserting after chapter 265 the following new chapter:

CHAPTER 265-A

ALCOHOL OR DRUG IMPAIRMENT

265-A:1 Definitions. In this chapter:

I. “Authorized agent” means any agent or inspector certified by the commissioner, after training, to police the public waters of the state.

II. “Boat” means and includes every type of watercraft used or capable of being used as a means of transportation on the water.

III. “OHRV” means an off highway recreational vehicle as defined in RSA 259:69 or a snowmobile as defined in RSA 259:102.

IV. “Peace officer” means “peace officer” as defined in RSA 594:1 or any properly trained personnel of the United States Coast Guard.

Driving or Operating Under the Influence of Drugs or Liquor

265-A:2 Driving or Operating Under Influence of Drugs or Liquor; Driving or Operating With Excess Alcohol Concentration.

I. No person shall drive or attempt to drive a vehicle upon any way or operate or attempt to operate an OHRV:

(a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or

(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.

II. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug or drugs, or while such person has an alcohol concentration of 0.08 or more or in the case of persons under the age of 21, 0.02 or more.

265-A:3 Aggravated Driving While Intoxicated. A person shall be guilty of aggravated driving while intoxicated if the person drives, operates, or attempts to operate an OHRV, or if the person drives or attempts to drive a vehicle upon any way, or if the person operates or attempts to operate a boat:

I. While under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drug or drugs and, at the time alleged:

(a) Drives or operates at a speed more than 30 miles per hour in excess of the prima facie limit;

(b) Causes a motor vehicle, boating, or OHRV collision resulting in serious bodily injury, as defined in RSA 625:11, VI, to the person or another;

(c) Attempts to elude pursuit by a law enforcement officer by increasing speed, extinguishing headlamps or, in the case of a boat, navigational lamps while still in motion, or abandoning a vehicle, boat, or OHRV while being pursued; or

(d) Carries as a passenger a person under the age of 16;

II. While having an alcohol concentration of 0.08 or more or, in the case of a person under the age of 21 at the time of the offense, 0.02 or more and, at the time alleged:

(a) Drives or operates at a speed more than 30 miles per hour in excess of the prima facie limit;

(b) Causes a motor vehicle, boating, or OHRV collision resulting in serious bodily injury, as defined in RSA 625:11, VI, to the person or another;

(c) Attempts to elude pursuit by a law enforcement officer by increasing speed, extinguishing headlamps or, in the case of a boat, navigational lights while still in motion, or abandoning a vehicle, boat, or OHRV while being pursued; or

(d) Carries as a passenger a person under the age of 16; or

III. While having an alcohol concentration of 0.16 or more.

265-A:4 Implied Consent of Driver or Operator to Submit to Testing to Determine Alcohol Concentration. Any person who drives, operates, or attempts to operate an OHRV, drives or attempts to drive a vehicle upon the ways of this state, or operates or attempts to operate a boat upon the public waters of the state shall be deemed to have given consent to physical tests and examinations for the purpose of determining whether such person is under the influence of intoxicating liquor or controlled drugs, and to a chemical, infrared molecular absorption, or gas chromatograph test or tests of any or all of any combination of the following: blood, urine, or breath, for the purpose of determining the controlled drug content of such person’s blood or alcohol concentration if arrested for any offense arising out of acts alleged to have been committed while the person was driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration in excess of the statutory limits contained in RSA 265-A:2 or RSA 265-A:3. The test or tests shall be administered at the direction of a law enforcement officer, peace officer, or authorized agent having reasonable grounds to believe the person to have been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving or in actual physical control of a vehicle, or operating or in actual physical control of a boat while under the influence of intoxicating liquor or controlled drugs or while having an alcohol concentration of 0.08 or more, or in the case of a person under the age of 21, 0.02 or more. A copy of the report of any such test shall be furnished by the law enforcement agency to the person tested within 48 hours of receipt of the report by the agency by certified mail directed to the address shown on such person’s license or other identification furnished by the person. Results of a test of the breath shall be furnished immediately in writing to the person tested by the certified breath testing operator conducting the test. When the incident involves an accident resulting in death or serious bodily injury to any person as provided in RSA 265-A:16, the prerequisites of RSA 265-A:8 shall not apply. Properly trained personnel of the United States Coast Guard may arrest and conduct tests on persons who are believed to be under the influence of intoxicating liquor or controlled drugs, or a combination thereof, and who are in physical control of a boat operating upon the public coastal waters of this state.

265-A:5 Administration of Alcohol Concentration Tests.

I. Only a duly licensed physician, registered nurse, certified physician’s assistant, or qualified medical technician or medical technologist acting at the request of a law enforcement officer, authorized agent, or peace officer may withdraw blood for the purpose of a test required by RSA 265-A:4. Such licensed physician, registered nurse, physician’s assistant, or qualified medical technician or medical technologist shall not be liable for damages or otherwise to the person from whom blood is withdrawn for any act performed in connection with such withdrawal provided the physician, registered nurse, physician’s assistant, or qualified medical technician or medical technologist acts with ordinary care.

II. All such blood and urine tests made under the direction of a law enforcement officer, authorized agent, or peace officer shall be conducted in the forensic science laboratory of the department of safety established in RSA 106-B:2-a or, in the case of blood and urine samples to be tested for the presence of controlled drugs, in any other laboratory capable of conducting such tests which is licensed under the laws of this or any other state and which has also been licensed by the U.S. Department of Health and Human Services under the Clinical Laboratory Improvement Act of 1988, as amended.

III. The successful completion of the external standard reference check shall be admissible evidence that the instrument was properly calibrated at the time of the test. The external standard reference check shall be performed according to the schedule required in rules adopted by the commissioner of the department of safety pursuant to RSA 541-A.

IV. No tests of blood, urine, or breath authorized by RSA 265-A:4 shall be considered as evidence in any proceeding before any administrative officer or court unless such test is performed in accordance with methods prescribed by the commissioner of the department of safety.

V. The commissioner of the department of safety shall adopt rules pursuant to RSA 541-A relative to:

(a) Methods and procedures for the testing of blood, urine, and breath to determine alcohol concentration and controlled drug content of a person’s blood;

(b) Techniques or methods for ascertaining the qualifications and competence of individuals to conduct such tests;

(c) Methods and procedures for the delivery and processing of samples of such tests;

(d) Forms relative to taking samples for alcohol concentration tests for admission as evidence pursuant to RSA 265-A:12, IV;

(e) Procedures for certification of any laboratory that conducts tests pursuant to RSA 265-A:7; and

(f) Such other matters as are required to carry out the provisions of this chapter relative to alcohol concentration tests.

265-A:6 Administration of Physical Tests Added. No post-arrest physical test or examination authorized by RSA 265-A:4 shall be considered as evidence in any proceeding before any administrative officer or court unless such test or examination is performed by a law enforcement officer who has been trained in the administration of such physical tests and examinations by a law enforcement agency or in a training program approved by the police standards and training council.

265-A:7 Additional Tests. Any person to whom RSA 265-A:4 is applicable shall have the right at his or her own expense to have similar tests made by a person of his or her own choosing who is competent to conduct the tests, as determined by the commissioner of the department of safety under RSA 265-A:5, and shall be so informed by the law enforcement officer at the same time as the person is requested to permit a test under the provisions of RSA 265-A:4. The failure or inability of an arrested person to obtain an additional test shall not preclude the admission of any test taken at the direction of a law enforcement officer, authorized agent, or peace officer. Nothing herein shall require the release from custody of the arrested person for the purpose of having such additional test made. For the purpose of this section:

I. The sample of blood taken pursuant to RSA 265-A:4 shall be of sufficient quantity to allow 2 tests; and the testing laboratory shall retain for a period of 30 days subsequent to the test conducted pursuant to RSA 265-A:4 a quantity of said sample sufficient for another test, which quantity shall be made available to the respondent or his or her counsel upon request.

II. The sample or samples of breath taken pursuant to RSA 265-A:4 shall be captured in an appropriate medium approved by the commissioner of the department of safety pursuant to RSA 265-A:5, V, and shall be sufficient to allow an equivalent additional test for each breath sample taken pursuant to 265-A:4. The captured sample or samples shall be given to the respondent in a manner determined by the commissioner of the department of safety.

265-A:8 Prerequisites to Tests.

I. Before any test of a person’s blood, urine, or breath specified in RSA 265-A:4 is given, the law enforcement officer, authorized agent, or peace officer shall:

(a) Inform the arrested person of his or her right to have a similar test or tests made by a person of his or her own choosing;

(b) Afford the arrested person an opportunity to request such additional test; and

(c) Inform the arrested person of the consequences of his or her refusal to permit a test at the direction of the law enforcement officer.

II. Before any post-arrest physical test specified in RSA 265-A:4 is given, the law enforcement officer, authorized agent, or peace officer shall inform the defendant of the consequences of the defendant’s refusal to comply with the law enforcement officer’s, authorized agent’s, or peace officer’s instructions for a post-arrest physical test.

III. If the law enforcement officer, authorized agent, or peace officer fails to comply with the provisions of this section, the test shall be inadmissible as evidence in any proceeding before any administrative officer and court of this state.

265-A:9 Effect of Evidence of Alcohol Concentration Test. The provisions of this subdivision do not limit the introduction of any other competent evidence bearing on the question of whether a person charged with the violation of RSA 265-A:2, I(a), or RSA 265-A:3, I, was under the influence of intoxicating liquor or any controlled drug.

265-A:10 Effect of Evidence of Refusal to Take Alcohol Concentration Test. If a person refuses to submit to a test as provided in RSA 265-A:4, such refusal may be admissible into evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by that person while driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat while under the influence of intoxicating liquor or any controlled drug.

265-A:11 Evidence.

I. Upon complaint, information, indictment, or trial of any person charged with the violation of RSA 265-A:2, the court may admit evidence of physical testing of the defendant for being under the influence of intoxicating liquor or controlled drugs as provided in RSA 265-A:4, and of the controlled drug content of the defendant’s blood and the defendant’s alcohol concentration, as shown by a test of his or her breath, blood, or urine as provided in RSA 265-A:4. Evidence that there was, at the time alleged, an alcohol concentration of 0.03 or less is prima facie evidence that the defendant was not under the influence of intoxicating liquor. Evidence that there was, at the time alleged, an alcohol concentration of more than 0.03 and less than 0.08 is relevant evidence but is not to be given prima facie effect in indicating whether or not the defendant was under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. Evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more is prima facie evidence that the defendant was under the influence of intoxicating liquor. In addition, evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more shall, in conjunction with the evidence otherwise required by RSA 265-A:2, I(b) of driving or attempting to drive a vehicle upon a way, constitute a separate offense under RSA 265-A:2, I(b); and evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more shall, in conjunction with the evidence otherwise required by RSA 265-A:3, II of driving or attempting to drive a vehicle upon a way and of one or more of the circumstances specified in RSA 265-A:3, II (a), (b), (c), and (d) constitute a separate offense under RSA 265-A:3, II; and evidence that there was, at the time alleged, an alcohol concentration of 0.16 or more shall, in conjunction with the evidence otherwise required by RSA 265-A:3, III of driving or attempting to drive a vehicle upon a way, constitute a separate offense under RSA 265-A:3, III.

II. Upon complaint, information, indictment, or trial of any person charged with a violation of the provisions of RSA 265-A:2, II relative to the operation of boats by a person under the influence of intoxicating liquor or a controlled drug, the court may admit evidence of the defendant’s alcohol concentration at the time alleged, as shown by a chemical, infrared molecular absorption, or gas chromatograph test or tests of his or her breath, urine, or blood. Evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more, is prima facie evidence that the defendant was under the influence of intoxicating liquor. Evidence that the defendant had, at the time alleged, an alcohol concentration of more than 0.03 and less than 0.08 is relevant evidence and may be considered with other competent evidence in determining whether or not the defendant was under the influence of intoxicating liquor. Evidence that the defendant had, at the time alleged, an alcohol concentration of 0.03 or less is prima facie evidence that the defendant was not under the influence of intoxicating liquor.

265-A:12 Official Record of Tests.

I. Any person who is arraigned on a charge arising under RSA 265-A:4 shall file notice in said court, within 30 days immediately following the receipt by the person of the results of any alcohol concentration test administered to such person, requiring the attendance of the person who conducted the breath test, or in the case of any other chemical test, the certifying scientist. Failure to file notice shall be deemed a waiver to require attendance of the person who conducted the breath test, or in the case of any other chemical test, the certifying scientist at the trial. The official report of the test issued pursuant to RSA 265-A:4 shall be deemed conclusive evidence of the conduct and result of said test.

II. A copy of the preventive maintenance check form filled out by the forensic breath testing supervisor who performed the last preventive maintenance check on the breath testing machine in question prior to the time of the test at issue shall be admissible evidence of the performance and successful completion of such check. Such check shall have been performed according to the schedule required in the rules adopted by the commissioner of the department of safety.

III. The successful completion of the external standard reference check shall be admissible evidence that the instrument was properly calibrated at the time of the test. The external standard reference check shall be performed according to the schedule required in rules adopted by the commissioner of the department of safety pursuant to RSA 541-A.

IV. A copy of the appropriate form filled out and signed by the person who took the sample for the alcohol concentration test in question shall be admissible evidence that the sample was taken by such person at the stated time on the stated date according to the procedures prescribed in the rules adopted by the commissioner of the department of safety pursuant to RSA 265-A:5, V.

V. Any person who is arraigned on a charge arising under RSA 265-A:2, RSA 265-A:3, or RSA 265-A:43 shall file, within 10 days of such person’s receipt of the results of any toxicology test administered to such person for the presence of any controlled drug, a notice in said court requiring the attendance of the certifying scientist. Failure to file notice shall be deemed a waiver to require attendance of the certifying scientist at trial. The official report of the test issued pursuant to RSA 265-A:4 shall be deemed conclusive evidence of the conduct of the result of such test.

265-A:13 Incapacity to Give Consent. Any person who is dead, unconscious, or who is otherwise in a condition rendering him or her incapable of refusing shall be deemed not to have withdrawn the consent provided by RSA 265-A:4 and the test or tests may be administered. The provisions of RSA 265-A:8 shall not apply to persons incapable of giving consent as provided for in this section.

265-A:14 Refusal of Consent.

I. If a person under arrest for any violation or misdemeanor under RSA 265 or RSA 215-A refuses upon the request of a law enforcement officer, authorized agent, or peace officer to submit to physical tests or to a test of blood, urine, or breath designated by the law enforcement officer, authorized agent, or peace officer to as provided in RSA 265-A:4, none shall be given, but:

(a) If this is the first refusal with no prior driving or operating while intoxicated or aggravated driving or operating while intoxicated convictions:

(1) The director shall suspend his or her license to drive or nonresident driving privilege for a period of 180 days; or

(2) If the person is a resident without a license or permit to drive a motor vehicle in this state, the director shall deny to the person the privilege to drive and the issuance of a license for a period of 180 days after the date of the alleged violation.

(b) If the person has a prior driving or operating while intoxicated or aggravated driving or operating while intoxicated conviction or a prior refusal of consent under this section:

(1) The director shall suspend his or her license to drive or nonresident driving privilege for a period of 2 years; or

(2) If the person is a resident without a license or permit to drive a motor vehicle in this state, the director shall deny to the person the privilege to drive and the issuance of a license for a period of 2 years after the date of the alleged violation.

II. The 180-day or 2-year suspension period or denial of issuance period imposed pursuant to this section shall not run concurrently with any other penalty imposed under the provision of this title. Any such suspension or denial of a license or privilege to drive shall be imposed in addition to any other penalty provided by law, subject to review as provided in RSA 265-A:31.

III. A refusal of consent for both post-arrest physical testing and testing of blood, urine, or breath following any one arrest shall be deemed one refusal for the purposes of this section.

IV. The provisions and penalties of this section, relative to the refusal of consent, shall apply to any person under arrest for any violation or misdemeanor involving the operation of a boat, after a hearing and upon satisfactory proof of the following:

(a) That the authorized agent or peace officer had reasonable grounds to believe the arrested person had been operating, had been attempting to operate, or was in actual physical control of a boat upon the public waters of this state while under the influence of intoxicating liquor or controlled drugs or any combination thereof;

(b) That the person has been arrested;

(c) That the person refused to submit to the test upon request of the authorized agent or peace officer;

(d) That the agent or officer informed the person arrested that his or her refusal to submit to such a test would constitute a violation; and

(e) That the agent or officer informed the arrested person of his or her right to have a similar test or tests conducted by a person of his or her own choosing.

265-A:15 Preliminary Breath Test.

I. Any law enforcement officer, authorized agent, or peace officer, who has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A, having reasonable grounds to believe that a person has been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat upon the public waters of the state while under the influence of intoxicating liquor or controlled drug or while the person’s alcohol concentration was 0.08 or more or in the case of a person under the age of 21, 0.02 or more or in the case of a person licensed to operate and operating a commercial vehicle or operating a commercial vessel and licensed pursuant to RSA 270-E:22 at the time of the offense, 0.04 or more may, without making an arrest, request that such person submit to a preliminary breath test for alcohol concentration to be administered by the officer. The results of any test administered under this section may be introduced into evidence in a court for any relevant purpose. Failure to submit to the test shall not constitute a violation of this chapter. Evidence of a failure to submit to a preliminary breath test shall not be admissible in court in any prosecution under this subdivision, except for the purpose of determining whether the officer had probable cause to arrest the person. The provisions of this section shall not limit the introduction of any other competent evidence bearing on the question of whether a person charged with violating RSA 265-A:2, I(a), RSA 265-A:2, II, or RSA 265-A:3 was under the influence of intoxicating liquor or any controlled drug. Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 265-A:4. The police officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 265-A:4. The results of the test shall be furnished immediately to the person tested by the police officer administering the test and in writing, if requested.

II. No device may be used to give a chemical test under the provisions of this section unless it has been approved as to type and make by the department of safety.

III. The commissioner of the department of safety shall adopt rules, pursuant to RSA 541-A, relative to methods and procedures for evaluation and approval of preliminary breath test devices.

265-A:16 Blood Testing of Certain Motor Vehicle Fatalities. When a collision, boating accident, or OHRV accident results in death or serious bodily injury to any person, all drivers or operators involved, whether living or deceased, and all deceased vehicle, boat, or OHRV occupants and pedestrians involved shall be tested for evidence of alcohol or controlled drugs. A law enforcement officer, authorized agent, or peace officer shall request a licensed physician, registered nurse, certified physician’s assistant, or qualified medical technician or medical technologist to withdraw blood from each driver or operator involved if living and from the body of each deceased driver or operator, deceased occupant, or deceased pedestrian, in accordance with RSA 611:6, II, for the purpose of testing for evidence of alcohol content or controlled drugs; provided that in the case of a living driver or operator the officer has probable cause to believe that the driver or operator caused the collision or accident. All tests made under this section shall be conducted by the forensic science laboratory established in RSA 106-B:2-a or in any other laboratory capable of conducting such tests which is licensed under the laws of this or any other state and which has also been licensed by the U.S. Department of Health and Human Services under the Clinical Laboratory Improvement Act of 1988, as amended. A copy of the report of any such test shall be kept on file by the medical examiner. The filed report is not a public record under RSA 91-A. However, the report shall be made available to the following:

I. Any highway safety agency for use in compiling statistics to evaluate the effectiveness of its program; and

II. Any person, including his or her legal representative, who is or may be involved in a civil, criminal, or administrative action or proceeding arising out of an accident in connection with which the test was performed.

265-A:17 Arrest Without a Warrant. Notwithstanding any other statutory provision of law to the contrary, a law enforcement officer may, without a warrant, arrest any person involved in a traffic accident, OHRV accident, or boating accident when the officer has probable cause to believe that such person has committed an offense, an element of which is driving under the influence of intoxicating liquors, controlled drugs or both. Notwithstanding any statutory provision of law to the contrary, a law enforcement officer may make such an arrest in such officer’s own jurisdiction or on the property of any medical facility in another jurisdiction in this state where the person or others are taken for treatment for injuries suffered in such traffic accident.

265-A:18 Penalties for Intoxication or Under Influence of Drugs Offenses.

I. Except as otherwise provided in this section:

(a) Any person who is convicted of any offense under RSA 265-A:2, I shall be:

(1) Guilty of a class B misdemeanor;

(2) Fined not less than $500;

(3) Required to furnish proof of successful completion of an impaired driver intervention program prior to the restoration of the person’s driver’s license or privilege to drive, provided that, if the person has previously completed, or been required by a court or the department of safety to complete, an impaired driver intervention program (I.D.I.P.) or any similar program in any jurisdiction, the person shall be required to furnish proof of successful completion of the multiple DWI offender intervention detention center program (M.O.P.) or an equivalent 7-day residential intervention program approved by the commissioner of health and human services;

(4) The person’s driver’s license or privilege to drive shall be revoked for not less than 9 months and, at the discretion of the court, such revocation may be extended for a period not to exceed 2 years. The court may suspend up to 6 months of this sentence, provided that the person has entered into the relevant driver intervention program required by subparagraph (3) within 45 days after conviction, or as soon thereafter as any extenuating circumstances approved by the department of health and human services allow;

(5) The sentencing court may sentence the person to additional alcohol and/or drug treatment and counseling, or to a treatment program approved by the commissioner of health and human services, or both. In addition, the court may require the person to submit to random urinalysis or such other tests as the court may deem appropriate; and

(6) The court in which the person was convicted may reduce the conviction to a violation upon a motion filed by either party at least one year after the date of the conviction. In deciding whether to reduce the conviction to a violation, the court may consider the person’s subsequent driving record, any evidence of drug or alcohol treatment, the hardship that having a criminal record may cause for the person, and any other factors that the court deems relevant.

(b) Any person who is convicted of any aggravated DWI offense under RSA 265-A:3, except as provided in subparagraph (c), shall be:

(1) Guilty of a class A misdemeanor;

(2) Fined not less than $750;

(3) Sentenced to a mandatory sentence of not less than 10 consecutive days of which 3 consecutive 24-hour periods shall be served in the county correctional facility and 7 consecutive 24-hour periods shall be served at the state-operated 7-day multiple DWI offender intervention detention center established under RSA 265-A:40, which sentence shall begin no later than 21 days after conviction. In the event that the state-operated 7-day multiple DWI offender intervention detention center has no available space, the person shall be assigned to an equivalent 7-day residential intervention program approved by the commissioner of health and human services. The person shall begin following any treatment recommendations arising out of the final evaluation given to the person at the multiple DWI offender intervention detention center or equivalent program within 60 days after the person has completed serving the required 7 consecutive 24-hour periods or such other time as the court may order;

(4) The person’s driver’s license or privilege to drive shall be revoked for not less than 18 months and, at the discretion of the court, such revocation may be extended for a period not to exceed 2 years. Except for good cause found by the court and noted in writing, the court may suspend up to 6 months of this sentence, provided that the person has entered into the relevant driver intervention program required by subparagraph (3) as soon as any circumstances approved by the department of health of human services allow;

(5) The sentencing court may sentence the person to additional alcohol and/or drug treatment and counseling, or to a treatment program approved by the commissioner of health and human services, or both. In addition, the court may require the person to submit to random urinalysis or such other test as the court may deem appropriate; and

(6) A person who leaves the relevant driver intervention program required by subparagraph IV(a)(3) before completion and fails to return and complete it as soon as extenuating circumstances approved by the department of health and human services allow or who fails to begin following treatment recommendations within the time required by subparagraph IV(a)(3) shall be in contempt of court and shall serve a minimum of 14 days in the county correctional facility.

(c) Any person who is convicted of aggravated DWI under RSA 265-A:3, I(b) or II(b), shall be:

(1) Guilty of a class B felony;

(2) Fined not less than $1,000;

(3) Sentenced to a mandatory sentence of not less than 21 consecutive days of which 14 consecutive 24-hour periods shall be served in the county correctional facility followed by 7 consecutive 24-hour periods served at the state-operated 7-day multiple DWI offender intervention detention center established under RSA 265-A:40, which sentence shall begin no later than 21 days after conviction. In the event that the state-operated 7-day multiple DWI offender intervention detention center has no available space the person shall be assigned to an equivalent 7-day residential intervention program approved by the commissioner of health and human services, and the remainder of the sentence may be deferred at the court’s discretion. The person shall begin following any treatment recommendations arising out of the final evaluation given to the person at the multiple DWI offender intervention detention center or equivalent program within 60 days after the person has completed serving the required 7 consecutive 24-hour periods or such other time as the court may order. The court may, at the satisfactory completion of any ordered treatment, suspend any remaining deferred sentence. Failure to successfully complete any court-ordered intervention program or recommended treatment shall result in the imposition of any remaining deferred sentence; and

(4) The person’s driver’s license or privilege to drive shall be revoked for not less than 18 months and, at the discretion of the court, such revocation may be extended for a period not to exceed 2 years. Except for good cause found by the court and noted in writing, the court may suspend up to 6 months of this sentence, provided that the person has entered into the relevant driver intervention program required by subparagraph (3) as soon as any extenuating circumstances approved by the department of health and human services allow.

II. Any person convicted of a violation of RSA 265-A:19, II shall be subject to the penalties set out in this section for a violation of RSA 265-A:3. Any person convicted of a violation of any other provision in RSA 265-A:19 or a violation of RSA 265-A:2, II shall be subject to the penalties set out in this section for a violation of RSA 265-A:2, I.

III. Any person who is convicted of an offense under RSA 265-A:2, I, RSA 265-A:3, or RSA 630:3, II and the offense occurred while the person was under the age of 21 shall be sentenced according to the provisions of this section, except that in all cases the person’s driver’s license or privilege to drive shall be revoked for not less than one year.

IV. Upon conviction of any offense under RSA 265-A:2, I or RSA 265-A:3, based on a complaint which alleged that the person has had one or more prior convictions under RSA 265-A:2, I or RSA 265-A:3, or RSA 630:3, II, or under reasonably equivalent offenses in an out-of-state jurisdiction, within 10 years preceding the date of the second or subsequent offense, the person shall be subject to the following penalties in addition to those provided in paragraph I:

(a) For a second offense:

(1) The person shall be guilty of a class A misdemeanor.

(2) The person shall be fined not less than $750.

(3)(A) If the complaint alleges that the prior conviction occurred within 2 years preceding the date of the second offense, the person shall be sentenced to a mandatory sentence of not less than 37 consecutive days of which 30 consecutive 24-hour periods shall be served in the county correctional facility followed by 7 consecutive 24-hour periods to be served at the state-operated 7-day multiple DWI offender intervention detention center established under RSA 265-A:40 within 21 days after conviction, except that in circumstances where the state-operated 7-day multiple DWI offender intervention detention center has no available space the person shall be assigned to an equivalent 7-day residential intervention program approved by the commissioner of health and human services. The person shall begin following any treatment recommendations arising out of the final evaluation given to the person at the multiple DWI offender intervention detention center or equivalent program within 60 days after the person has completed serving the required 30 consecutive 24-hour periods or such other time as the court may order.

(B) If the complaint alleges that the prior conviction occurred more than 2 but not more than 10 years preceding the date of the second offense, the person shall be sentenced to a mandatory sentence of not less than 10 consecutive days of which 3 consecutive 24-hour periods shall be served in the county correctional facility and 7 consecutive 24-hour periods shall be served at the state-operated 7-day multiple DWI offender intervention detention center established under RSA 265-A:40, which sentence shall begin no later than 21 days after conviction. In the event that the state-operated 7-day multiple DWI offender intervention detention center has no available space the person shall be assigned to an equivalent 7-day residential intervention program approved by the commissioner of health and human services. The person shall begin following any treatment recommendations arising out of the final evaluation given to the person at the multiple DWI offender intervention detention center or equivalent program within 60 days after the person has completed serving the required 7 consecutive 24-hour periods or such other time as the court may order.

(4) The person’s driver’s license or privilege to drive shall be revoked for not less than 3 years.

(5) The person shall pay a fee to the commissioner, as established under RSA 126-A:43, for the costs of the state-operated 7-day multiple DWI offender intervention detention center program prior to license restoration. If the person attends an approved equivalent 7-day residential intervention program, the fees and costs shall be paid to the program.

(6) A person who leaves the program before completion and fails to return and complete it as soon thereafter as extenuating circumstances approved by the department of health and human services allow, or who fails to begin following treatment recommendations within the time required by subparagraph IV(a)(3) shall be in contempt of court and shall serve a minimum of 30 days in the county correctional facility.

(7) The sentencing court may sentence the person to additional alcohol and/or drug treatment and counseling, or to a treatment program approved by the commissioner of health and human services, or both. In addition, the court may require the person to submit to random urinalysis or such other tests as the court may deem appropriate.

(b) For a third offense, any person convicted under this paragraph shall be subject to all the penalties of subparagraph (a) except that:

(1) The person’s driver’s license or privilege to drive shall be revoked indefinitely and shall not be restored for at least 5 years. At the end of the 5-year minimum revocation period the person may petition the court for eligibility to reapply for a driver’s license and the court, for good cause shown, may grant such eligibility subject to such terms and conditions as the court may prescribe. Any untimely petition under this subparagraph shall be dismissed without a hearing. If such petition is granted and the person is otherwise eligible for license restoration, the person may then apply to the director for restoration of driver’s license, but the license shall not be restored until the provisions of RSA 263:65-a and all other requirements under law are met.

(2) The person shall be sentenced to a mandatory sentence of not less than 180 consecutive days of which 30 consecutive 24-hour periods shall be served in the county correctional facility following which the person shall complete at the person’s own expense a residential treatment program of at least 28 days duration or an intensive course of substance abuse treatment based upon a formal evaluation by a licensed alcohol and other drug counselor and approved by the department of health and human services before the driver’s license may be restored. The remainder of the sentence may be deferred for a period of up to 2 years. The court may, at the satisfactory completion of any ordered treatment, suspend any remaining deferred sentence. Failure to successfully complete any court-ordered intervention program or recommended treatment shall result in the imposition of any remaining deferred sentence.

(3) The sentencing court may sentence the person to additional alcohol and/or drug treatment and counseling or to a treatment program approved by the commissioner of health and human services, or both. In addition, the court may require the person to submit to random urinalysis or such other tests as the court may deem appropriate.

(c) For a fourth or subsequent offense, any person convicted under this paragraph shall be subject to all the penalties of subparagraphs (a) and (b) except that the person shall be guilty of a felony, and the person’s driver’s license or privilege to drive shall be revoked indefinitely and the person shall not petition for eligibility to reapply for a driver’s license as provided in subparagraph (b)(1) for at least 7 years.

(d) For a third or subsequent offense when any prior offense under this paragraph is negligent homicide under RSA 630:3, II, or reasonably equivalent offense in an out-of-state jurisdiction, the person convicted under this paragraph shall be subject to all the penalties of subparagraphs (a) and (b) except that the person’s driver’s license or privilege to drive shall be revoked indefinitely and the person shall not petition for eligibility to reapply for a driver’s license as provided in subparagraph (b)(1) for at least 10 years.

V. Voluntary completion of an impaired driver intervention program, or an appropriate equivalent, and commencement of treatment recommended by the program may be considered by a court when determining a sentence under this section.

VI. If any person is convicted of a violation of RSA 265-A:2, I or RSA 265-A:3, and the conviction is not based upon a complaint which alleges prior convictions as provided in paragraph IV, but the person is found to have had one or more such prior convictions in this state or in an out-of-state jurisdiction within 10 years preceding the date of the offense, the person’s driver’s license or privilege to drive shall be revoked for not less than one year nor more than 3 years. Except for good cause found by the court and noted in writing, the court may suspend up to 6 months of this sentence, provided that within 45 days after conviction the person has entered the 7-day program at the state-operated multiple DWI offender intervention detention center program or an equivalent 7-day residential intervention program approved by the commissioner of health and human services, as provided in RSA 265-A:40 and RSA 265-A:42. The person’s license shall not be restored until the person has successfully completed the program. The court may further order attendance at a residential treatment center, for a period not to exceed 30 days, at the person’s own expense.

VII. For the purposes of this section:

(a) “Revocation” or “revoked” means revocation as defined in RSA 259:90 and also includes, if the person is a nonresident, the revocation of the person’s privilege as an out-of-state driver to drive on any ways of this state.

(b) “Out-of-state jurisdiction” includes any governmental entity that issues driver’s licenses that are valid for operating a motor vehicle on the ways of this state as provided in RSA 263:37, and that has laws relating to driving while intoxicated that are reasonably equivalent to the laws of this state.

(c) “Successful completion” means meeting further counseling requirements, if any, arising out of the final evaluation given to the offender at the I.D.I.P. or the M.O.P. or its equivalent; provided, however, that the offender shall have the right to a hearing before the commissioner or designee, who shall determine whether the further counseling requirements arising out of the final evaluation are warranted and appropriate, and whether the offender should be eligible for license restoration. The definition in this subparagraph shall also apply to RSA 265-A:42.

(d) A person shall be presumed to have furnished proof of successful completion of an impaired driver intervention program if the person furnishes a report indicating that he or she has completed attendance at the I.D.I.P., the M.O.P., or an equivalent program, and that he or she has paid all assessed program fees. The presumption may be overcome by a hearing requested by the department, or the I.D.I.P., the M.O.P., or an equivalent program, with notice to and an opportunity to be heard by the person, where the department and/or the I.D.I.P., the M.O.P., or an equivalent program shall have the burden of proving that the person has not successfully completed an impaired driver intervention program.

(e) The I.D.I.P., the M.O.P., or an equivalent program shall inform the department of safety in writing of any further treatment it deems necessary in order to be considered a completed program before a license suspension should be restored. The department of safety shall notify the licensee of his or her ability to request a hearing to dispute the findings and the licensee shall inform the department of safety if the licensee requests a hearing within 20 days of receipt of such notice. At such hearing the I.D.I.P., the M.O.P., or an equivalent program shall have the burden of proving the person has not successfully completed an impaired driver intervention program. The I.D.I.P., the M.O.P., or an equivalent program shall inform the department of safety in writing within 5 days after the end of the program attended by the licensee.

VIII. No portion of the minimum mandatory sentence of imprisonment and no portion of the mandatory sentence of the period of revocation and no portion of any fine imposed under this section shall be suspended or reduced by the court. No case brought to enforce this section shall be continued for sentencing for longer than 35 days. No person serving the minimum mandatory sentence under this section shall be discharged pursuant to authority granted under RSA 651:18, released pursuant to authority granted under RSA 651:19, or in any manner, except as provided in RSA 623:1, prevented from serving the full amount of such minimum mandatory sentence under any authority granted by RSA title LXII or any other provision of law.

IX. Upon conviction under the provisions of RSA 265-A:2, I or RSA 265-A:3, the prosecutor shall present to the court a certified copy of the defendant’s record of convictions of motor vehicle offenses under RSA title XXI and reasonably equivalent offenses in out-of-state jurisdictions which are on record at the New Hampshire division of motor vehicles or known to the prosecutor, or a signed statement that the defendant has no such prior convictions within the preceding 7 years. Prior to sentencing the court shall note on the complaint the number of prior convictions for drug or alcohol-related motor vehicle offenses, or the absence of any such prior convictions, as shown on such report or statement.

X. Any conviction under RSA 265-A:2, I or RSA 265-A:3 shall be reported to the department of safety, division of motor vehicles, and shall become a part of the motor vehicle driving record of the person convicted.

XI. Any person convicted of a violation of RSA 265-A:2, RSA 265-A:3, or RSA 265-A:19, II, and who at the time of driving or attempting to drive a vehicle or off highway recreational vehicle or operating or attempting to operate a boat was transporting a person under the age of 16, shall have the driver’s license or privilege to drive revoked for the maximum time period under the section violated and the person’s license or privilege to drive shall not be restored until the offender has successfully completed a 7-day program at the state-operated multiple DWI offender program or an equivalent 7-day residential intervention program approved by the commissioner at the person’s own expense.

265-A:19 Penalties for Boating While Intoxicated.

I. Any person convicted of a violation of RSA 265-A:2, II or RSA 630:2 or RSA 630:3, or RSA 631:1, RSA 631:2, RSA 631:2-a, or RSA 631:3 when the offense was committed by means of his or her operation or attempted operation of a boat shall not operate a boat on the waters of this state for a period of one year from the date of his or her conviction, whether or not such conviction is appealed. Any person operating or attempting to operate a boat during such a period is guilty of a misdemeanor.

II. Any person convicted of a violation of RSA 265-A:2, II who at the time of the violation was transporting a person under the age of 16 shall not operate a boat on the waters of this state until the offender has successfully completed a 7-day program at the state operated multiple DWI offender program or an equivalent 7-day residential intervention program approved by the department of health and human services at the person’s own expense. Any person operating a boat in violation of this paragraph is guilty of a misdemeanor.

III. Any conviction under this section shall be reported to the commissioner of the department of safety, division of motor vehicles, and shall become a part of the motor vehicle driving record of the person convicted.

IV. Any person who is convicted of a violation of RSA 265-A:2, II shall be subject to the same penalties as a person convicted of a violation of RSA 265-A:2, I as specified in RSA 265-A:18. Any person who is convicted of a violation of paragraph II of this section shall be subject to the same penalties as a person convicted of a violation of RSA 265-A:3 as specified in RSA 265-A:18.

V. Notwithstanding the provisions of title LXII and in addition to any other penalty imposed under this section, any person who operates a boat in violation of this subdivision shall be fined not more than $500.

265-A:20 Loss of Motorboat Privileges. Any person who is convicted of a violation of RSA 265-A:2, II involving a motor vehicle shall lose the privilege to operate a motorboat on the waters of this state for a period of one year from the date of conviction.

265-A:21 Annulment; Plea Bargaining.

I. Notwithstanding the provisions of RSA 651:5, no court shall order an annulment of any record of conviction of driving or attempting to drive a vehicle upon any way or driving, operating, attempting to operate, or being in actual physical control of an OHRV or operating or attempting to operate a boat on the waters of this state while under the influence of intoxicating liquor or any controlled drug or while having an alcohol concentration of 0.08 or more or of aggravated drunken driving until 10 years after the date of conviction. Any record thus annulled shall be retained in a permanent file, to be opened only for purposes of sentencing in the case of an offense under RSA 265-A:3.

II. Notwithstanding any other provision of law to the contrary, in any case in which a person is arrested for and charged with the offense of driving or attempting to drive a vehicle on any way or driving, operating, attempting to operate, or being in actual physical control of an OHRV or operating or attempting to operate a boat while under the influence of intoxicating liquor or drugs or while having an alcohol concentration of 0.08 or more and that charge is reduced from a second or subsequent offense to a first offense or in which the original charge is reduced to or in any manner substituted with another charge or a nolle prosequi entered in exchange for an agreement to plead guilty or nolo contendere to another charge, the prosecutor shall submit to the attorney general a written report describing such agreement. All such written reports shall be submitted to the attorney general on a monthly basis. The report shall contain such information as the attorney general shall prescribe; provided, however, that the attorney general shall not be subject to the provisions of RSA 541-A in prescribing such information. The report required by this paragraph shall be a public record and shall be available for public inspection as provided in RSA 91-A:4.

III. Notwithstanding any other provision of law to the contrary, if a person is arrested for driving or attempting to drive a motor vehicle upon any way or driving, operating, attempting to operate, or being in actual physical control of an OHRV or operating or attempting to operate a boat while under the influence of intoxicating liquor or drugs or while having an alcohol concentration of 0.08 or more, no prosecutor shall enter into any agreement with such person or such person’s attorney if such agreement would result in a charge that removed the case from consideration under any provision of RSA 259-RSA 266. The provisions of this paragraph, however, shall not prevent the bringing of any charge under RSA 630:2 or RSA 630:3.

265-A:22 Payment of all Obligations Prior to Restoration or Renewal. The director of motor vehicles shall not restore or renew a person’s license or privilege to drive, if it was revoked pursuant to RSA 265-A:2; RSA 265-A:3; RSA 265-A:35; RSA 265-A:43; RSA 630:2; or RSA 630:3, or if the revocation was connected with an alcohol-related or drug-related offense, until all obligations of such person resulting from the arrest and conviction for the offense are met. For the purposes of this section, the word “obligations” shall mean fines and penalty assessments, court-ordered restitution or reimbursement to any person injured as a result of the offense, successful completion of all treatment and rehabilitation programs the person is required to take, full payment of all fees for such programs, and any other costs which may be ordered by the court. The word “obligations” shall not mean completion of probation or parole or completion of a condition of probation or parole. In any case where the court orders periodic payment of fines, penalty assessments, restitution, or reimbursement, the obligations of such periods shall be deemed to have been met if such person is current in all such court-ordered payments.

265-A:23 Commercial Licensing; Penalties; Driving Under the Influence. Any person who drives a commercial motor vehicle with or without a valid commercial driver license and commits one of the following offenses shall be punished as follows:

I. The commissioner shall suspend for at least one year, the commercial driver license of a person who is found to have committed a first violation of driving a commercial motor vehicle under the influence of alcohol or with an alcohol concentration of 0.04 or greater, or other controlled substances, notwithstanding RSA 265-A:11, I.

II. If the driver commits a violation of paragraph I while carrying hazardous materials, the suspension shall be for a period of 3 years.

III. The commissioner shall suspend for life, or a period of not less than 10 years, according to federal Department of Transportation regulations, the commercial driver license of a person who is found to have committed a second violation of driving a commercial motor vehicle under the influence of alcohol or with an alcohol concentration of 0.04 or greater, or other controlled substance, notwithstanding RSA 265-A:11, I.

265-A:24 Commercial Drivers Prohibited From Driving with any Alcohol in Their Systems.

I. Notwithstanding any other provision of law, a person shall not drive a commercial motor vehicle while having alcohol in his or her system.

II. A person who drives a commercial motor vehicle while having alcohol in his or her system, or who refuses to take a test to determine his or her alcohol concentration, shall be placed out-of-service for 24 hours.

265-A:25 Implied Consent Requirements for Commercial Motor Vehicle Drivers.

I. Any person who drives a commercial motor vehicle upon the ways of New Hampshire shall be deemed to have given consent, subject to the provisions of RSA 265-A:4, to a test or tests of any or all or any combination of the following: blood, breath, or urine, for the purpose of determining that person’s alcohol concentration, or the presence of other drugs.

II. A test or tests may be administered at the direction of a law enforcement officer who, after stopping or detaining the commercial motor vehicle driver, has probable cause to believe that the driver was driving a commercial motor vehicle while having alcohol in his system.

III.(a) Upon the first refusal of any person to submit to a test or tests as administered by a law enforcement officer for the purposes of determining the person’s alcohol concentration or the presence of other drugs, the director shall revoke his or her commercial license for a period of not less than one year.

(b) If the person has a prior refusal under subparagraph III(a) then, upon the second or subsequent refusal of such person to submit to a test or tests as administered by a law enforcement officer for the purposes of determining the person’s alcohol concentration or the presence of other drugs, the director shall revoke his or her commercial license for a period of not less than 10 years.

IV. If the person refuses testing, or submits to a test which discloses an alcohol concentration of 0.04 or more, the law enforcement officer shall submit a sworn report to the department certifying that the test was requested pursuant to paragraph I and that the person refused to submit to testing, or submitted to a test which disclosed an alcohol concentration of 0.04 or more.

V. Upon receipt of the sworn report of a law enforcement officer submitted under paragraph IV, the department shall disqualify the driver from driving a commercial motor vehicle under RSA 265-A:23.

VI. The driver shall have the opportunity for a hearing and appeal as provided in RSA 265-A:31 and RSA 265-A:34.

265-A:26 Revocation of License for Driving While Intoxicated and Appeal.

I. Upon a conviction of a violation of RSA 265-A:2 or RSA 265-A:3, the court shall report to the department and shall immediately revoke the license or driving privilege of the person so convicted, or the right of a nonresident so convicted to drive within the state of New Hampshire; and said court in the case of holders of New Hampshire licenses shall return such license with its findings marked thereon, together with the court return, to the department; and the department may revoke the license of any person who shall be convicted of a similar offense by a court of any other state in a criminal proceeding, or who shall be found to have committed a similar act by a court of any other state in a civil proceeding.

II. Whenever any person convicted of a violation of RSA 265-A:2 or RSA 265-A:3 appeals, the district court shall forthwith revoke the license or driving privilege of such person and, in case of a holder of a New Hampshire license, shall return such license together with the court return to the department which shall not reissue any license until the period of revocation determined by the court has elapsed.

265-A:27 Not Guilty Finding; Return of License. Any person whose license was revoked under the provisions of RSA 265-A:26 who appeals and is not found guilty shall have any previously held license returned. No additional fee requirements shall be imposed in connection with such license restoration.

265-A:28 License Restored Upon Proof of Financial Responsibility. Notwithstanding the provisions of RSA 263:71, the director shall not restore a license or driving privilege to a person whose license or driving privileges have been revoked pursuant to RSA 265-A:18 until such person has furnished proof of financial responsibility as required by other provisions of the law.

265-A:29 Revocation of Nonresident Privilege. When it has been finally determined under the procedures of this subdivision that a nonresident’s privilege to drive a motor vehicle in this state has been revoked, the department shall give information in writing or by electronic means of the action taken to the motor vehicle administrator of the state of the person’s residence and of any state in which he or she has a license.

265-A:30 Administrative License Suspension.

I. If any person refuses a test as provided in RSA 265-A:14 or submits to a test described in RSA 265-A:4 which discloses an alcohol concentration of 0.08 or more or, in the case of a person under the age of 21 at the time of the violation, 0.02 or more, the law enforcement officer shall submit a sworn report to the department. In the report the officer shall certify that the test was requested pursuant to RSA 265-A:4 and that the person refused to submit to testing or submitted to a test which disclosed an alcohol concentration of 0.08 or more, or, in the case of a person under the age of 21, 0.02 or more.

II. Upon receipt of the sworn report of a law enforcement officer submitted under paragraph I, the department shall suspend the person’s driver’s license or privilege to drive as follows:

(a) In the case of a refusal to take a test described in RSA 265-A:4, the suspension shall be for the period specified in RSA 265-A:14.

(b) In the case of a person who submits to a test described in RSA 265-A:4 which discloses an alcohol concentration of 0.08 or more or, in the case of a person under the age of 21 at the time of the violation, 0.02 or more, the suspension shall be for:

(1) Six months if there is no prior refusal under RSA 265-A:14, no prior driving while intoxicated or aggravated driving while intoxicated convictions, and no prior administrative license suspension pursuant to RSA 265-A:30.

(2) Two years if there is a prior refusal under RSA 265-A:14, or a prior driving while intoxicated or aggravated driving while intoxicated conviction, or a prior administrative suspension pursuant to RSA 265-A:30.

III. On behalf of the department, the law enforcement officer submitting the sworn report under paragraph I shall serve immediate notice of suspension on the person, and the suspension shall be effective 30 days after the date of service. If the person has a valid New Hampshire driver’s license, an officer shall take the driver’s license of the person, and issue a temporary license valid for the notice period. The officer shall send the license to the department along with the sworn report under paragraph I.

IV. If the person submits to a test described in RSA 265-A:4 and the results of the test are not immediately available and therefore no notice has been served by the law enforcement officer, the department shall mail such notice and the suspension shall be effective 30 days after the date of service. If the address shown in the law enforcement officer’s report differs from that shown on the department records, the notice shall be mailed to both addresses. The notice shall be presumed to have been served 3 days after mailing. Upon receipt of the notice of suspension and before requesting any review or hearing under RSA 265-A:31, if the person has a New Hampshire driver’s license that has not been surrendered, the person shall surrender such person’s license at a place designated by the department and shall be issued a temporary driving permit valid for the notice period.

V. In the case of a person who has a driver’s license from another jurisdiction, all provisions of this subdivision shall apply except that surrender of the out-of-state driver’s license and issuance of a temporary driving permit shall not be required. The department shall transmit a copy of the suspension order to the motor vehicle authorities in the jurisdiction where the person’s license was issued, and also in the jurisdiction of the person’s residence if different from that where the license was issued.

265-A:31 Administrative Review and Hearings.

I.(a) Any person whose license is suspended or revoked under this subdivision may request either an administrative review or a hearing. The request shall be in writing and shall state the grounds upon which the person seeks to have the order of suspension or revocation rescinded, which grounds shall be limited to those provided in paragraph II. The filing of the request shall not stay the suspension or revocation. A request for either administrative review or hearing received by the department after 30 days from the date the notice is issued shall be denied as untimely.

(b) If the request is for an administrative review, the request may be accompanied by any statement or other evidence which the person wants the department to consider. Upon receiving the request the department shall review the order, the evidence upon which it is based, including whether the person was driving or in actual physical control of a motor vehicle, and any other information brought to the attention of the department, and shall determine whether sufficient cause exists to sustain the order.

(c) If the request is for a hearing, the request shall also indicate whether or not the person desires to have the law enforcement officer present. The hearing shall be held within 20 days after the filing of the request unless the person requests a continuance. A request for a continuance by the person shall not stay the order of suspension or revocation. The hearing shall be recorded, and be conducted by the department’s designated agent. The hearing may be conducted upon a review of the law enforcement officer’s report if there is no request to have the officer present. If there is a request that the law enforcement officer be present at the hearing and the officer fails to appear without good cause shown, the case shall be dismissed and the order rescinded. If the person requesting the hearing fails to appear without good cause shown, the right to a hearing shall be waived and the order sustained.

II. The scope of the administrative review or hearing shall be limited to the issues of:

(a) Whether the officer had reasonable grounds to believe the arrested person had been driving, attempting to drive, or was in actual physical control of a vehicle upon the ways of this state or operating or attempting to operate a boat on the waters of this state or was driving, operating, attempting to operate, or in actual physical control of an OHRV while under the influence of intoxicating liquor, narcotics, or drugs;

(b) The facts upon which the reasonable grounds to believe such are based;

(c) Whether the person had been arrested;

(d) Whether the person has refused to submit to the test upon the request of the law enforcement officer or whether a properly administered test or tests disclosed an alcohol concentration of 0.08 or more, or, in the case of a person under 21 years of age, 0.02 or more;

(e) Whether the officer informed the arrested person of his or her right to have a similar test or tests conducted by a person of his or her own choosing; and

(f) Whether the officer informed the arrested person of the fact that refusal to permit the test would result in suspension of his or her license or driving privilege and that testing above the alcohol concentration level specified in RSA 265-A:2 or RSA 265-A:3 would also result in suspension.

III. In the case of either an administrative review or a hearing, the hearing examiner shall issue his or her recommendation on the order of suspension or revocation within 15 days of the request for administrative review or the hearing date. The recommendation shall be in writing and a copy shall be provided to the parties. The recommendation shall be final unless a review or appeal is filed under RSA 265-A:33 or RSA 265-A:34.

265-A:32 Period of License Suspension. Where a license or driving privilege has been suspended under RSA 265-A:30 and the person is also convicted on criminal charges arising out of the same event both the suspension and the court-ordered revocation shall be imposed but the total period of suspension and revocation shall not exceed the longer of the 2 periods; provided, however, that any suspension for refusing to submit to a test under the provisions of RSA 265-A:14 shall not run concurrently with any other penalty imposed under the provisions of this title.

265-A:33 Review. Within 10 days following the examiner’s ruling, a person whose license has been suspended or revoked, or the law enforcement officer, may petition the director for a review of the ruling. The filing of the petition shall not stay a suspension or revocation of the person’s driver’s license or privilege to drive if imposed, or the restoration of the person’s driver’s license or privilege to drive. The review shall determine whether the ruling is erroneous as a matter of law or cannot be sustained by the facts as presented at the hearing. After a review of the ruling, the director shall issue within 10 days a finding either affirming the ruling or granting a new hearing. Any grant of a new hearing shall be accompanied by a written explanation setting forth the specific error of law or the reason why the ruling cannot be sustained by the facts.

265-A:34 Appeal; Administrative License Suspension.

I. Any person aggrieved by a decision of the department under this subdivision, after the administrative hearing or review, may appeal the decision as provided in this section. The court shall have the full authority to determine whether any license suspension or revocation should be stayed during the pendency of the appeal.

II. If the suspension is sustained after a hearing as provided in RSA 265-A:31, a person shall have the right to file a petition in the superior court in the county in which he or she was arrested to review the final order by the director or the director’s authorized agent within 30 days of the date of the final order. Jurisdiction to hear such appeals is vested in the superior court.

III. At the earliest practical time, the court shall review the record as developed before the director or authorized agent, together with any written legal argument presented to the court. Based on that review, the court may affirm or reverse the decision of the director or agent or order that oral argument be held. As justice may require, the court may remand the case to the director or authorized agent for further findings or rulings. In no event shall the oral argument be held less than 14 days after notice has been provided to the director. The petition for appeal shall set forth all the grounds upon which the final order is sought to be overturned. Issues not raised by the appellant before the director or agent shall not be raised before the superior court. The burden of proof shall be upon the appellant to show that the decision of the director or agent was clearly unreasonable or unlawful, and all findings of the director or agent upon all questions of fact properly before him or her shall be deemed to be prima facie lawful and reasonable. The order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that the order is unjust or unreasonable.

IV. No new or additional evidence shall be introduced in the superior court, but the case shall be determined upon the record and evidence transferred, except that in any case, if it shall be necessary in order that no party shall be deprived of any constitutional right, or if the court shall be of the opinion that justice requires the reception of evidence of facts which have occurred since the hearing, or which by reason of accident, mistake, or misfortune could not have been offered before the director or authorized agent, it shall remand the case to the director or authorized agent to receive and consider such additional evidence.

265-A:35 Probationary Licenses.

I. Any person who shall apply for reissuance of his or her driver’s license following revocation or suspension for an offense under RSA 265:79, RSA 265-A:2, RSA 265-A:3, or RSA 265-A:43 for an offense involving a vehicle is an “at risk” driver and his or her driver’s license shall be probationary for at least 5 years following the date of reissuance.

II. No holder of a probationary license shall drive or attempt to drive a vehicle upon any way when he or she is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs, so that the alcohol concentration is 0.03 or more. Driving with an alcohol concentration of 0.03 or more is a per se violation of a probationary license and subjects the probationary license holder to administrative suspension of his or her driver’s license for not less than 90 days and not more than 180 days. Such administrative suspension shall be in addition to any court imposed suspension or revocation periods.

III. Any probationary license holder whom the police have reasonable cause to believe is driving with an alcohol concentration of 0.03 or more and who refuses to submit to a test for alcohol concentration shall have his or her driver’s license administratively suspended for a period of 90 days.

Alcohol Ignition Interlock Program

265-A:36 Alcohol Ignition Interlock Program Established.

I. Any person whose license or permission to drive has been revoked or suspended for an aggravated DWI offense under RSA 265-A:18, I(b), I(c), or a subsequent DWI offense under RSA 265-A:18, IV may be required by the court after the period of revocation or suspension to install an ignition interlock device as defined in RSA 259:43-a in any vehicle registered to that person or used by that person on a regular basis, for not less than 6 months nor more than 2 years. Installation and monitoring costs shall be paid by the offender. A certificate proving installation of the device shall be provided to the division of motor vehicles as a condition precedent to reinstatement of the individual’s license to drive, and the division may mark the person’s license accordingly.

I-a. Any person who is convicted of driving while under suspension or revocation resulting from a DWI offense shall be required by the court to install an ignition interlock device in any vehicle registered to that person or used by that person on a regular basis, for the remaining period of suspension or revocation plus an additional period not less than 6 months nor more than 2 years. The court may order such installation on a temporary basis prior to conviction as a condition of bail.

I-b. To the extent that technology does not exist to permit the installation or safe operation of any particular vehicle type when equipped with an interlock, the court may order that a restraining device which disables the vehicle be placed on any such vehicle registered to or used on a regular basis by a person required to install an ignition interlock device.

II. Nothing in this section shall prohibit a court of competent jurisdiction from requiring the installation of an ignition interlock device for any person convicted of a violation of RSA 265-A:2 involving a vehicle, where the conviction is not based upon a complaint which alleges prior convictions as provided in RSA 265-A:18, IV, but the person is found to have had one or more such prior convictions in this state or in an out-of-state jurisdiction.

III. Any person under the age of 21 whose license or permission to drive has been revoked or suspended under RSA 265-A:18 may be required by the court after the period of revocation or suspension to install an ignition interlock device as defined in RSA 259:43-a in any vehicle registered to that person or used by that person on a regular basis, until the age of 21 or for not less than 12 months, whichever is longer.

IV. An ignition interlock device may not be sold or distributed in this state without the device being approved by the commissioner or the department of safety.

V. The department of safety shall establish rules, pursuant to RSA 541-A, for the approval of ignition interlock devices and for the licensing of approved interlock service providers.

VI. The commissioner shall adopt rules and regulations to create an ignition interlock program that will control the delivery of interlock service in this state under this subdivision. The rules adopted for the licensing of approved interlock service providers shall require that each provider, at a minimum:

(a) Provide recalibration of each device within 30 days of installation and every 60 days thereafter, unless otherwise ordered by the court;

(b) Maintain at least that number of locations across the state for the installation, service, calibration, and monitoring of an ignition interlock device as might be required from time to time by the program operating protocol developed by the commissioner;

(c) Provide periodic reports as determined by the court or in department rules, to the probation office and treatment provider, if applicable; if the offender is not placed on probation, to the arresting agency and the court of jurisdiction;

(d) Retain all data-logger records for 12 months after the end of the period to which the offender is sentenced;

(e) Provide installation and service to those offenders determined by the court to be unable to pay the full cost of an interlock program by reserving for this purpose a hardship credit equal to 2 percent of the service provider’s gross receipts, excluding the purchase or rental cost of the interlock device, which credit and free service shall be reported annually to the department; and

(f) Provide a certificate of installation to the vehicle’s owner upon installation of the device in a form to be determined by the department’s interlock rules.

265-A:37 Alcohol Ignition Interlock Circumvention.

I. Any person required by the court to install an ignition interlock device shall not drive any motor vehicle not equipped with this device.

II. A person shall not tamper with, or in any way attempt to circumvent the operation of an ignition interlock device that has been installed in a motor vehicle.

III. A person shall not start or attempt to start a motor vehicle equipped with an ignition interlock device for the purpose of providing an operable motor vehicle to a person who is restricted by law to drive only a motor vehicle so equipped. The provisions of this section do not apply if the starting of a motor vehicle, or the request to start a motor vehicle equipped with an ignition interlock device, is done for the purpose of safety or mechanical repair of the device or the vehicle, and the person subject to the court order does not drive the vehicle.

IV. A person shall not knowingly provide a motor vehicle not equipped with a functioning ignition interlock device to another person whom the provider of the vehicle knows was sentenced to drive only a motor vehicle equipped with an ignition interlock device.

V. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

265-A:38 Violating Court Order.

I. Upon written notice, by affidavit, that any person has violated an order of the court with regard to the installation of an ignition interlock device after the period of revocation or suspension imposed in RSA 265-A:18, 265:79, or 630:3, a hearing shall be scheduled within 14 business days of the notice. Pending the hearing and upon a finding of probable cause that a violation has occurred based upon the affidavit, the court shall immediately suspend the defendant’s privilege to drive a motor vehicle. After the hearing and upon a finding of violation by a preponderance of the evidence, the privilege to drive shall not be restored until the court is satisfied that the person is in compliance with its order.

II. If it is found that a person required to drive a motor vehicle equipped with an ignition interlock device has failed to comply with any requirement for the maintenance or calibration of the device, or shows a consistent pattern of failures to pass the breath test provided by the device, the court may order a hearing to determine if the person should be held in contempt of court. Upon a finding of contempt, the court may sentence the defendant to up to 6 months in a county department of corrections facility, may make such other orders as necessary to bring about compliance, and may order a further license suspension or revocation for a period of not more than 12 months. The period of suspension or revocation under this section shall be added to any previously ordered suspension or revocation.

Impaired Driver Intervention Programs

265-A:39 Impaired Driver Intervention Programs.

I. Except as provided in paragraph IV, the commissioner of the department of health and human services shall be responsible for biennially approving the impaired driver intervention programs and 7-day residential intervention programs equivalent to the multiple DWI offender intervention detention center program (M.O.P.) which persons convicted under RSA 265-A:2 or RSA 265-A:3 shall attend in order to regain their driver’s licenses or driving privileges; but the commissioner of the department of health and human services shall not approve any impaired driver intervention program unless such program is conducted without cost to the state. Notwithstanding RSA 6:12, any fees collected under subparagraph V(c) of this section shall be placed in a nonlapsing revolving account and shall be used by the commissioner for the purposes of this subdivision only.

II. Notwithstanding any other law to the contrary, the impaired driver intervention programs operated by the department of corrections shall be deemed approved programs for purposes of the attendance required at such programs for restoration of driver’s licenses or driving privileges under RSA 265-A:42.

III. An impaired driver intervention program shall consist, at a minimum, of 20 hours of standardized educational curriculum and an exit interview.

IV. The commissioner of the department of health and human services shall adopt rules, pursuant to RSA 541-A, relative to the impaired driver intervention programs and those programs equivalent to the M.O.P. as required in RSA 265-A:18 and RSA 265-A:42 with respect to:

(a) Procedures and forms to be followed in order for drivers who have completed such programs to regain their licenses or driving privileges.

(b) Place of business and areas of the state in which approved programs may operate.

(c) Records and reports.

(d) Schedule of fees and charges.

(e) Such other matters as the commissioner of the department of health and human services and the commissioner of safety may prescribe for the protection of the public.

V. The commissioner of the department of health and human services shall adopt rules, pursuant to RSA 541-A, relative to the operation of impaired driver intervention programs with respect to:

(a) Course content and standards of instruction.

(b) Certification and recertification of instructors.

(c) A per client fee to be paid by program providers sufficient to cover the costs of monitoring course content, establishing and maintaining standards of instruction, data collection, and administrative support.

(d) Any other matter related to the proper administration of this section.

265-A:40 Multiple DWI Offender Intervention Detention Center Program.

I. The commissioner of the department of health and human services shall be responsible for administration and operation of the 7-day multiple DWI offender intervention detention center program which persons convicted under RSA 265-A:2 or RSA 265-A:3 or sentenced pursuant to RSA 651:2, V(h) may be required to attend.

II. Any person who attends the 7-day multiple DWI offender intervention detention center program shall be required to pay the fees for confinement and intervention costs, except that prior payment shall not be required of any person. The fees shall be sufficient to make the program self-supporting, exclusive of start-up costs. The fees collected shall be deposited in a special account in the office of the state treasurer and utilized as provided in RSA 265-A:41.

III. The state-operated 7-day multiple DWI offender intervention detention center program shall furnish to the courts a report indicating when a person has completed attendance at the program, and shall furnish to the division of motor vehicles, department of safety, a report indicating when a person who attends the program pursuant to RSA 265-A:18 has successfully completed the program and treatment or involvement in a substance abuse program when appropriate and warranted.

IV. The commissioner of the department of health and human services shall submit an annual report on the 7-day state-operated multiple DWI offender intervention detention center program, on or before January 1 of each year, to the speaker of the house of representatives and the president of the senate.

V. The commissioner of the department of health and human services shall adopt rules, pursuant to RSA 541-A, relative to the operation of the 7-day multiple DWI offender intervention detention center program with respect to:

(a) Program curriculum and content.

(b) Bed availability schedules.

(c) Any other matter related to the proper administration of this section.

265-A:41 Utilization of Funds. All funds derived from the fees collected by the commissioner of the department of health and human services under RSA 265-A:18 shall be paid over to the state treasurer within 10 days of the subsequent month, or at an earlier date, for deposit into a separate account in the treasury known as the 7-day multiple DWI offender intervention detention center program account. These funds are appropriated as indicated in the operating budget as a source of funds for the 7-day multiple DWI offender intervention detention center program. Any funds remaining in the account over the appropriation indicated in the operating budget shall lapse into the general fund at the end of each fiscal year.

265-A:42 Attendance at Impaired Driver Intervention Program Required.

I. The director shall not restore the license or driving privilege of any person whose license or privilege has been revoked or suspended pursuant to RSA 265-A:2, I or 265-A:3 until such person has furnished proof of successful completion of an impaired driver intervention program which is:

(a) Approved by the commissioner of the department of health and human services and the commissioner of safety pursuant to RSA 265-A:39 and RSA 265-A:40;

(b) Approved by the court or the department of safety, in the case of a person who is not a resident of this state; or

(c) Operated by the department of corrections and approved pursuant to RSA 265-A:39, II.

II. For the purposes of this section, “successful completion” means meeting further counseling requirements, if any, arising out of the final evaluation given to the offender at the I.D.I.P. or the M.O.P. or its equivalent; provided, however, that the offender shall have the right to a hearing before the commissioner or designee, who shall determine whether the further counseling requirements arising out of the final evaluation are warranted and appropriate, and whether the offender should be eligible for license restoration.

III. Successful completion shall also include payment of all assessed I.D.I.P., M.O.P., and equivalent program fees, except in the case of attendance at programs operated by the department of corrections. Failure of the offender to make full payment of the assessed fee may also result in petition for contempt of court charges against the offender.

IV.(a) Upon enrolling in an impaired driver intervention program, a person shall provide to the program an original certified copy of the person’s driver’s license record. Such record shall be secured from the division of motor vehicles, or from the state in which the person holds a driver’s license, if an out-of-state resident. The person shall pay for all costs involved in securing the certified copy.

(b) In the case of enrollment in the state-operated 7-day multiple DWI offender intervention detention center, a person shall provide such certified copy at the time of enrollment or prior to the issuance of a report under RSA 265-A:40, III and RSA 265-A:18, VIII.

V.(a) A person shall be presumed to have furnished proof of successful completion of an impaired driver intervention program if the person furnishes a report indicating that he or she has completed attendance at the I.D.I.P., the M.O.P., or an equivalent program, and that he or she has paid all assessed program fees. The presumption may be overcome by a hearing requested by the department, or the I.D.I.P., the M.O.P., or an equivalent program, with notice to and an opportunity to be heard by the person, where the department and/or the I.D.I.P., the M.O.P., or an equivalent program, shall have the burden of proving that the person has not successfully completed an impaired driver intervention program.

(b) The I.D.I.P., the M.O.P., or an equivalent program shall inform the department in writing of any further treatment it deems necessary in order to be considered a completed program before a license suspension should be restored. The department shall notify the licensee of his or her ability to request a hearing to dispute the findings and the licensee shall inform the department of safety if the licensee requests a hearing within 20 days of receipt of such notice. At such hearing the I.D.I.P., the M.O.P., or an equivalent program shall have the burden of proving the person has not successfully completed an impaired driver intervention program. The I.D.I.P., the M.O.P., or an equivalent program shall inform the department in writing within 5 days after the end of the program attended by the licensee.

Other Alcohol and Drug Offenses

265-A:43 Possession of Drugs. Any person who drives on any way a vehicle while knowingly having in his or her possession or in any part of the vehicle a controlled drug or controlled drug analog in violation of the provisions of RSA 318-B shall be guilty of a misdemeanor, and his or her license shall be revoked or his or her right to drive denied for a period of 60 days and at the discretion of the court for a period not to exceed 2 years.

265-A:44 Transporting Alcoholic Beverages.

I. The words “liquor” and “beverage” as used in this section shall have the same meanings as defined in RSA 175:1.

II. Except as provided in paragraph V, no driver shall transport, carry, possess, or have any liquor or beverage within the passenger area of any motor vehicle upon any way in this state except in the original container and with the seal unbroken. Securely capped partially filled containers of liquor or beverages shall be stored and transported in the trunk of the motor vehicle. If the motor vehicle does not have a trunk, such containers shall be stored and transported in that compartment or area of the vehicle which is the least accessible to the driver.

III. Except as provided in paragraph V, no passenger shall carry, possess, or have any liquor or beverage within any passenger area of any motor vehicle upon any way or in an area principally used for public parking in this state except in the original container and with the seal unbroken. Securely capped partially filled containers of liquor or beverages may be stored and transported in that compartment or area of the vehicle which is the least accessible to the driver.

IV. A person who violates this section shall be guilty of a violation and shall be subject to a fine of $150. In addition, a person who violates paragraph II of this section may have his or her drivers’ license, if a resident, or driving privilege, if a nonresident, suspended 60 days for a first offense and up to one year for a second or subsequent offense.

V. This section shall not apply to persons transporting, carrying, possessing, or having any liquor or beverage in a chartered bus, in a taxi, or in a limousine for hire; provided, however, that the driver of any of said vehicles is prohibited from having any liquor or beverage in or about the driver’s area.

VI. For the purposes of this section only:

(a) “Passenger area of any motor vehicle” shall not include any section of a motor vehicle which has been designed or modified for the overnight accommodation of persons or as living quarters.

(b) “Way” shall mean the entire width between the boundary lines of any public highway, street, avenue, road, alley, park, or parkway, or any private way laid out under authority of statute, or any such way provided and maintained by a public institution to which state funds are appropriated for public use or any such way which has been used for public travel for 20 years.

265-A:45 Transportation of Alcoholic Beverages by a Minor.

I. Notwithstanding RSA 265-A:44, II, no driver under the age of 21 shall, except when accompanied by a parent, legal guardian, or legal age spouse, transport any liquor or beverage in any part of a vehicle. A driver violating this section may have his or her license or privilege to drive suspended for 60 days. The words “liquor” and “beverage” as used in this section shall have the same meanings as defined in RSA 175:1. “Legal age spouse” means a person 21 years of age or older.

II. This section shall not apply to a driver under 21 years of age employed under RSA 179:23.

260:2 Reference Changed. Amend RSA 6:12, I(b)(147) to read as follows:

(147) Moneys deposited in the 7-day multiple DWI offender intervention detention center program account under RSA [172-B:2-c] 265-A:41.

260:3 Reference Changed. Amend RSA 6:12, I(b)(175) to read as follows:

(175) Moneys deposited in the alcoholism and alcohol abuse account under RSA [172-B:2-a] 265-A:39.

260:4 Reference Changed. Amend RSA 21-P:14, II(dd) to read as follows:

(dd) The methods, procedures, and techniques for the testing of blood, urine, and breath to determine alcohol concentration as described under RSA [265:85] 265-A:5, V.

260:5 References Changed. Amend RSA 21-P:14, IV(j)-(k) to read as follows:

(j) Suspension or revocation of a driver’s license or driving privilege, as authorized by RSA [263:53-66] 263:53 through RSA 263:65, [and] RSA 263:73, RSA 265-A:26, and RSA 265-A:29.

(k) Appeals of driver’s license denial, suspension, or revocation, as authorized by RSA 263:75, RSA 265-A:34, and RSA 263:76.

260:6 Reference Changed. Amend RSA 21-P:14, IV(r) to read as follows:

(r) Administrative suspension of motor vehicle licenses pursuant to RSA [265:91-a-] 265:91-b and RSA 265:91-c and RSA 265-A:30 through RSA 265-A:32, including notices, forms, temporary driving permits, hearing procedures, and procedures for restoration after the suspension period.

260:7 Reference Changed. Amend RSA 179:27-a, II to read as follows:

II. Any partially consumed bottle of table wine which is to be removed from the premises under paragraph I shall be securely sealed and bagged, by the licensee, either to be in conformance with any applicable local open container law for those patrons on foot, or transported as required by RSA [265:81] 265-A:44, in the trunk of a motor vehicle. If the vehicle is not equipped with a trunk, the securely sealed opened table wine bottles may be stored and transported in that compartment or area of the vehicle which is the least accessible to the driver.

260:8 Reference Changed. Amend RSA 214:20-f to read as follows:

214:20-f Administration of Blood Alcohol Concentration Tests. All and any alcohol concentration tests performed as authorized in RSA 214:20-d shall be conducted pursuant to the requirements of RSA [265:85] 265-A:5, relative to the testing of blood, urine, and breath.

260:9 Reference Changed. Amend RSA 214:20-g to read as follows:

214:20-g Additional Tests. The provisions of RSA [265:86] 265-A:7, relative to the right of an arrested person to obtain additional tests, shall apply to any person to whom RSA 214:20-d is applicable.

260:10 Reference Changed. Amend RSA 214:20-j to read as follows:

214:20-j Official Record of Tests. The provisions of RSA [265:90] 265-A:12, relative to notice to the court and the admissibility of the official report of tests, shall govern admissibility of the official records related to the tests taken pursuant to this RSA 214:20-d as well as the notice required to compel the attendance of any person who conducted such tests at trial.

260:11 References Changed. Amend RSA 215-A:19, VII(b)-(c) to read as follows:

(b) RSA [215-A:11] 265-A:2, I and RSA 265-A:3, relative to operating an OHRV while intoxicated or under the influence of drugs.

(c) RSA [215-A:11-b] 265-A:14, relative to refusal of consent.

260:12 References Changed. Amend RSA 215-A:29, XIX(b) to read as follows:

(b) Any person who violates this section by operating an OHRV in this state during the period of suspension or revocation of such person’s license or driving privilege for a violation of [RSA 215-A:11, 215-C:11,] RSA 265:79, RSA [265:82, RSA 265:82-a] 265-A:2, I, RSA 265-A:3, and RSA 630:3, II shall be guilty of a misdemeanor and shall be sentenced in accordance with RSA 263:64, IV.

260:13 References Changed. Amend RSA 259:39, I(k)-(l) to read as follows:

(k) Conviction of any offense involving a vehicle specified in RSA [265:82] 265-A:2, I;

(l) Conviction of any offense involving a vehicle specified in RSA [265:82-a] 265-A:3;

260:14 Reference Changed. Amend RSA 259:43-b to read as follows:

259:43-b Interlock Service Provider. An approved interlock service provider means an entity that installs, services, calibrates, monitors, and provides reports as required by RSA [265:93-a] 265-A:36, VI(c) who is approved by the commissioner of the department of safety to do so; no person shall provide any of the services of an approved interlock service provider without such prior approval.

260:15 References Changed. Amend RSA 259:125, II to read as follows:

II. For the purposes of RSA 265:79, RSA [265:82] 265-A:2, I, and RSA [265:82-a] 265-A:3, any public highway, street, avenue, road, alley, park, parking lot, or parkway; any private way laid out under authority of statute; ways provided and maintained by public institutions to which state funds are appropriated for public use; any privately owned and maintained way open for public use; and any private parking lots, including parking lots and other out-of-door areas of commercial establishments which are generally maintained for the benefit of the public.

260:16 Reference Changed. Amend RSA 260:16 to read as follows:

260:16 Appropriation. The department may destroy, at the end of 5 years from the date of filing, originals or copies, including photographs, microphotographs, or photographic film, of reports required by law of accidents and applications for licenses to drive motor vehicles and for the registration thereof. The department may destroy any obsolete number plates and forms which, in the director’s opinion, are no longer of any value to the state. The time limit provided herein shall not apply in the case of the destruction of original records, papers, or documents as provided in RSA 260:19. This section shall not be construed as allowing the destruction of any record of conviction maintained for the purposes of RSA [265:82] 265-A:2, I.

260:17 References Changed. Amend RSA 261:180, III to read as follows:

III. The commissioner, when suspending a driver’s license or privilege to drive because the driver is an habitual offender or has been convicted of negligent homicide involving the use of a motor vehicle, manslaughter involving the use of a motor vehicle, a subsequent offense of driving or attempting to drive under the influence of intoxicating liquor or any controlled drug under RSA [265:82] 265-A:2, I, or aggravated driving while intoxicated or attempted aggravated driving while intoxicated under RSA [265:82-a] 265-A:3, shall also revoke the registration of any vehicle registered to the individual whose license is being revoked or suspended, for the period of revocation or suspension of the license or privilege to drive.

260:18 References Changed. Amend RSA 262:23, III to read as follows:

III. Notwithstanding paragraph I, any person who qualifies under RSA 259:39 shall not be subject to the minimum mandatory provisions of paragraph I if, and only if, that person’s certification was not based on any conviction under RSA [265:82] 265-A:2, I or any misdemeanor or felony motor vehicle conviction pursuant to RSA title XXI, and that person has not been convicted of any such offense, or any reasonably similar offense in any jurisdiction within the United States and Canada, since the date of the certification; provided, however, that any such person shall be guilty of a class A misdemeanor and may be sentenced to one year or less. Any person incarcerated upon the effective date of this paragraph, pursuant to certification as an habitual offender under RSA 259:39, who does not have a conviction under RSA [265:82] 265-A:2, I involving a vehicle or any misdemeanor or felony motor vehicle convictions pursuant to RSA title XXI, may apply immediately to the superior court for sentence review and reduction.

260:19 References Changed. Amend the introductory paragraph of RSA 262:44 to read as follows:

Any person charged with a violation of the provisions of title XXI on vehicles, excluding a violation of RSA 263:1-a, RSA 265:79, [265:82, 265:82-a] RSA 265-A:2, RSA 265-A:3, RSA 265:115, RSA 265:117, a speeding offense under RSA 265:60 for which the defendant must appear in court, and any offense which is a misdemeanor or felony, may plead guilty, nolo contendere, or not guilty by mail in the following manner:

260:20 References Changed. Amend RSA 263:56-a, II(b) to read as follows:

(b) The director shall purge the record of violations in default, related suspensions, and all fees and fines assessed against these defaults and suspensions under this section that have been on file for more than 7 years; provided, however, that the director shall not purge such records for a violation of RSA 265:79, RSA [265:82] 265-A:2, I, RSA [265:82-a] 265-A:3, RSA 265:115, RSA 265:117, and any offense which is a misdemeanor or felony during the defendant’s lifetime until the defendant’s driver’s license or driving privilege is reinstated. All courts shall notify the director of any such failure on a form prescribed by the director.

260:21 Reference Changed. Amend RSA 263:56-e, II(c) to read as follows:

(c) The person has successfully completed a program required by RSA [263:65-a] 265-A:42 at approximately the same time he or she would have been required to take the driver attitude program.

260:22 References Changed. Amend RSA 263:64, IV to read as follows:

IV. Any person who violates this section by driving or attempting to drive a motor vehicle in this state during the period of suspension or revocation of his or her license or driving privilege for a violation of RSA 265:79 shall be guilty of a misdemeanor. Any person who violates this section by driving or attempting to drive a motor vehicle or by operating or attempting to operate an OHRV or snowmobile in this state during the period of suspension or revocation of his or her license or driving privilege for a violation of RSA [215-A:11, 215-C:11, RSA 265:82] 265-A:2, I, RSA [265:82-a] 265-A:3, or RSA 630:3, II shall be guilty of a misdemeanor and shall be sentenced to imprisonment for a period not less than 7 consecutive 24-hour periods to be served within 6 months of the conviction, shall be fined not more than $1,000, and shall have his or her license or privilege revoked for an additional year. No portion of the minimum mandatory sentence of imprisonment shall be suspended by the court. No case brought to enforce this paragraph shall be continued for sentencing for longer than 35 days. No person serving the minimum mandatory sentence under this paragraph shall be discharged pursuant to authority granted under RSA 651:18, released pursuant to authority granted under RSA 651:19, or in any manner, except as provided in RSA 623:1, prevented from serving the full amount of such minimum mandatory sentence under any authority granted by title LXII or any other provision of law.

260:23 Reference Changed. Amend the subdivision heading preceding RSA 263:65 and RSA 263:65 to read as follows:

Effect of Reckless Driving [or Driving While Under Influence of Alcohol or Drugs]

263:65 Revocation for Reckless Driving [or Driving While Under Influence of Alcohol or Drugs]. Upon a conviction of a violation of RSA 265:79, [82 or 82-a,] the court shall report to the department and shall immediately revoke the license or driving privilege of the person so convicted, or the right of a nonresident so convicted to drive within the state of New Hampshire; and said court in the case of holders of New Hampshire licenses shall return such license with its findings marked thereon, together with the court return, to the department; and the department may revoke the license of any person who shall be convicted of a similar offense by a court of any other state in a criminal proceeding, or who shall be found to have committed a similar act by a court of any other state in a civil proceeding.

260:24 Alcohol and Controlled Substance Provisions Deleted. Amend RSA 263:94, I(a)-(c) to read as follows:

(a) The commissioner shall suspend for at least one year, the commercial driver license of a person who is found to have committed a first violation of:

(1) [Driving a commercial motor vehicle under the influence of alcohol with an alcohol concentration of 0.04 or greater, or other controlled substances, notwithstanding RSA 265:89;

(2)] Leaving the scene of an accident while driving a commercial motor vehicle; and

[(3)] (2) Driving a commercial motor vehicle in the commission of a felony, except a controlled substance felony as described in subparagraph (d).

(b) If the driver commits any of the violations listed in subparagraph (a) while carrying hazardous materials, the suspension shall be for a period of 3 years.

(c) The commissioner shall suspend for life, or a period of not less than 10 years, according to federal Department of Transportation regulations, the commercial driver license of a person who is found to have committed a second violation of:

(1) [Driving a commercial motor vehicle under the influence of alcohol with an alcohol concentration of 0.04 or greater, or other controlled substance, notwithstanding RSA 265:89;

(2)] Leaving the scene of an accident while driving a commercial motor vehicle; or

[(3)] (2) Using a commercial motor vehicle in the commission of a felony.

260:25 Scope of Administrative Review or Hearing. Amend RSA 265:91-b, II to read as follows:

II. The scope of the administrative review or hearing shall be limited to the [issues] issue of[:

(a) Whether the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon the ways of this state while under the influence of intoxicating liquor, narcotics or drugs;

(b) The facts upon which the reasonable grounds to believe such are based;

(c)] whether the person had been arrested[;

(d) Whether the person has refused to submit to the test upon the request of the law enforcement officer or whether a properly administered test or tests disclosed an alcohol concentration of 0.08 or more, or, in the case of a person under 21 years of age, 0.02 or more;

(e) Whether the officer informed the arrested person of his right to have a similar test or tests conducted by a person of his own choosing; and

(f) Whether the officer informed the arrested person of the fact that refusal to permit the test would result in suspension of his license or driving privilege and that testing above the alcohol concentration level specified in RSA 265:91-a would also result in suspension].

260:26 Reference Changed. Amend RSA 270:12-a, I(b) to read as follows:

(b) The provisions of RSA [270:48-a] 265-A, relative to the operation or attempted operation of boats by a person under the influence of intoxicating liquor or a controlled drug or other unlawful operation of boats thereunder and all other crimes and offenses occurring on the public bodies of inland waters of the state;

260:27 References Changed. Amend RSA 270:46-a, I(c)-(d) to read as follows:

(c) RSA [270:50] 265-A:14, refusal of consent.

(d) RSA [270:48-a] 265-A:2, II, operating or attempting to operate boats under the influence of liquor or drugs.

260:28 Reference Changed. Amend RSA 270:83 to read as follows:

270:83 Chocorua Lake. No person shall use, operate, or have aboard or attached to any boat as defined in RSA [270:48] 265-A:1, II a petroleum- or electric-powered inboard or outboard motor, or any other type of power motor, upon the waters of Chocorua Lake in Tamworth. Whoever violates the provisions of this section shall be guilty of a violation.

260:29 Reference Changed. Amend RSA 422:29, VI to read as follows:

VI. Any person who operates or attempts to operate an aircraft while under the influence of intoxicating liquor or of any controlled drug as prohibited by this chapter or 14 C.F.R. [Part] part 91 as amended shall be guilty of a class B felony and be subject to the same penalties as a person convicted of a violation of RSA [265:82] 265-A:2, I as specified in RSA [265:82-b] 265-A:18, I(c). Any conviction under this section shall be reported to the department of safety, division of motor vehicles and shall become a part of the motor vehicle driving record of the person convicted.

260:30 Reference Changed. Amend RSA 502-A:19-b, I to read as follows:

I. Such defendant shall receive, in addition to [his] a summons, a uniform fine schedule entitled “Notice of Fine, New Hampshire District and Municipal Courts” which shall contain the usual fines for violations of the provisions of title XXI on vehicles, excluding violations of RSA 265:79, [265:82] RSA 265-A:2, I or any offense which is a misdemeanor or felony; the usual fines for violations of the provisions of RSA 270, 270-A, and 270-E, excluding any offense which is a misdemeanor or felony; the usual fines for violations of the provisions of title XVIII on fish and game laws, excluding any offense which is a misdemeanor or felony; and the usual fines for violations of the provisions of title XIX-A on forestry laws, excluding any offense which is a misdemeanor or felony. The defendant shall be given a notice of fine indicating the amount of the fine plus penalty assessment at the time the summons is issued; except, if, for cause, the summoning authority wishes the defendant to appear personally. Defendants summoned to appear personally must do so on the arraignment date specified in the summons, unless otherwise ordered by the court. Defendants who are issued a summons and notice of fine and who wish to plead guilty or nolo contendere shall enter their plea on the summons and return it with payment of the fine plus penalty assessment to the division of motor vehicles within 30 days of the date of summons. Defendants in violation of the provisions of title XVIII shall be subject to the provisions of RSA 207:18 and RSA 214:19.

260:31 Applicability; Pleas by Mail. Section 30 of this act shall apply only to courts which are not computerized in coordination with the division of motor vehicles.

260:32 References Changed. Amend RSA 630:3, II-III to read as follows:

II. A person is guilty of a class A felony when in consequence of being under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and controlled drug while operating a propelled vehicle, as defined in RSA 637:9, III or a boat as defined in RSA [270:48] 265-A:1, II, he or she causes the death of another.

III. In addition to any other penalty imposed, if the death of another person resulted from the negligent driving of a motor vehicle, the court may revoke the license or driving privilege of the convicted person for up to 7 years. In cases where the person is convicted under paragraph II, the court shall revoke the license or driving privilege of the convicted person indefinitely and the person shall not petition for eligibility to reapply for a driver’s license for at least 7 years. In a case in which alcohol was involved, the court may also require that the convicted person shall not have a license to drive reinstated until after the division of motor vehicles receives certification of installation of an ignition interlock device as described in RSA [265:93-a] 265-A:36, which shall remain in place for a period not to exceed 5 years.

260:33 Reference Changed. Amend RSA 651:2, V(h) to read as follows:

(h) In cases of a person convicted of a felony or class A misdemeanor, a court may sentence such person to 7 consecutive 24-hour periods to be served at the state-operated 7-day multiple DWI offender intervention detention center program established under RSA [172-B:2-b] 265-A:40, if the evidence demonstrates that alcohol was a contributing factor in the commission of the offense and provided that space is available in the program and such person pays the fees for the program in full prior to admission.

260:34 References Changed. Amend the introductory paragraph of RSA 651:5, III to read as follows:

III. Except as provided in RSA [265:82-c] 265-A:21 or in paragraphs V and VI, any person convicted of an offense may petition for annulment of the record of arrest, conviction, and sentence when the petitioner has completed all the terms and conditions of the sentence and has thereafter been convicted of no other crime, except a motor vehicle offense classified as a violation other than driving while intoxicated under RSA [265:82] 265-A:2, I, for a period of time as follows:

260:35 References Changed. Amend RSA 651:6, II(b)-(c) to read as follows:

(b) Has previously been convicted of a violation of RSA 630:3, II, RSA [265:82-a] 265-A:3, I(b) or II(b), or any crime in any other jurisdiction involving driving or attempting to drive a motor vehicle under the influence of controlled drugs or intoxicating liquors, or both, and such person has committed a crime as defined under RSA 630:3, II or RSA [265:82-a] 265-A:3, I(b) or II(b); or

(c) Has twice previously been convicted in this state or any other jurisdiction, for driving or attempting to drive a motor vehicle under the influence of intoxicating liquors or controlled drugs, or both, and such person has committed a crime as defined under RSA 630:3, II or RSA [265:82-a] 265-A:3, I(b) or II(b).

260:36 Fish and Game; Executive Director and Conservation Officers; Enforcement Power. Amend RSA 206:26-b, I to read as follows:

I. The executive director and each conservation officer shall:

(a) Be ex officio constables throughout the state; [and]

(b) Have general power to enforce all criminal laws of the state and to serve criminal processes and make arrests, under proper warrants, in all counties; and

(c) Have general power to enforce any provision of RSA title XXI relative to the operation of OHRVs, snowmobiles, watercraft, or boats.

260:37 Repeal. The following are repealed:

I. RSA 172-B:2-a through 172-B:2-c, relative to impaired driver intervention programs.

II. RSA 215-A:11 through 215-A:11-q, relative to DWI provisions for OHRVs.

III. RSA 263:14-a, relative to probationary licenses.

IV. RSA 263:65-a, relative to attendance at impaired driver intervention programs.

V. RSA 263:66, relative to revocation of license for driving while intoxicated and appeals.

VI. RSA 263:67, relative to not guilty findings; return of license.

VII. RSA 263:71-a, relative to license restoration upon proof of financial responsibility.

VIII. RSA 263:95, relative to commercial drivers prohibited from driving with any alcohol in their systems.

IX. RSA 263:96, relative to implied consent requirements for commercial motor vehicle drivers.

X. RSA 265:80, relative to possession of drugs.

XI. RSA 265:81, relative to transporting alcoholic beverages.

XII. RSA 265:81-a, relative to transportation of alcoholic beverages by a minor.

XIII. RSA 265:82, relative to driving under influence of drugs or liquor; driving with excess alcohol concentration.

XIV. RSA 265:82-a, relative to aggravated driving while intoxicated.

XV. RSA 265:82-b, relative to penalties for intoxication or operating under the influence of drugs offenses.

XVI. RSA 265:82-c, relative to annulment; plea bargaining.

XVII. RSA 265:82-d, relative to payment of all obligations prior to restoration.

XVIII. RSA 265:83, relative to arrests without a warrant.

XIX. RSA 265:84, relative to implied consent of driver to submit to testing.

XX. RSA 265:85, relative to administration of alcohol concentration tests.

XXI. RSA 265:85-a, relative to administration of physical tests.

XXII. RSA 265:86, relative to additional tests.

XXIII. RSA 265:87, relative to prerequisites to tests.

XXIV. RSA 265:88, relative to effect of evidence of alcohol concentration tests.

XXV. RSA 265:88-a, relative to evidence of refusal to take alcohol concentration tests.

XXVI. RSA 265:89, relative to evidence.

XXVII. RSA 265:90, relative to official records of tests.

XXVIII. RSA 265:91, relative to incapacity to give consent.

XXIX. RSA 265:91-a, relative to administrative license suspensions.

XXX. RSA 265:92, relative to refusal of consent.

XXXI. RSA 265:92-a, relative to preliminary breath test.

XXXII. RSA 265:93, relative to blood testing of certain motor vehicle fatalities.

XXXIII. RSA 265:93-a through 265:93-c, relative to alcohol ignition interlock program.

XXXIV. RSA 270:47 through 270:58-b, relative to implied consent for boaters.

XXXV. RSA 215-C:11 through 215-C:27, relative to DWI provisions for snowmobiles.

260:38 Effective Date. This act shall take effect January 1, 2007.

Approved: June 9, 2006

Effective: January 1, 2007

• HB298 at GenCourtMobile

Bill Text Revisions

HB298 Revision: 10061 Date: Jan. 21, 2010, midnight

Docket

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