HB283 (2011) Detail

Relative to impaired drivers.


HB 283-FN – AS INTRODUCED

2011 SESSION

11-0520

03/09

HOUSE BILL 283-FN

AN ACT relative to impaired drivers.

SPONSORS: Rep. Almy, Graf 11; Rep. Butynski, Ches 4; Rep. Welch, Rock 8; Rep. Tholl, Coos 2

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill:

I. Requires, to the extent practicable, an arraignment on a DWI charge within 14 business days of the violation.

II. Modifies treatment requirements for DWI offenders.

III. Eliminates the impaired driver and multiple DWI offender intervention programs.

This bill was requested by the commission to examine driving while impaired education and intervention programs established by 2008, 256.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

11-0520

03/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eleven

AN ACT relative to impaired drivers.

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

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

(147) Moneys deposited in the [7-day multiple DWI offender intervention] impaired driver program account under RSA 265-A:41.

2 Reference Deleted. Amend RSA 126-A:34, I(a) to read as follows:

(a) Review and investigate all records of the New Hampshire hospital, Laconia developmental services, the secure psychiatric unit, the Glencliff home, and the Anna Philbrook center, [and the multiple DWI offender intervention program (M.O.P.),] relative to expenses incurred by patients, residents, or clients at such institutions, facilities, or programs or expenses incurred by patients, residents, or clients receiving care, treatment, services, or maintenance at the direction of the commissioner of health and human services, and make recommendations to the commissioner and to the respective superintendents or directors of such institutions, facilities, or programs as to the rates to be charged for the care, treatment, and maintenance of such patients, residents, or clients.

3 New Section; Alcohol or Drug Impairment; Arraignment. Amend RSA 265-A by inserting after section 3 the following new section:

265-A:3-a Arraignment. To the extent practicable, a law enforcement officer charging a person with violating RSA 265-A:2 or RSA 265-A:3 shall schedule an arraignment on such charge to take place no later than 14 business days after the date of the violation.

4 Penalties for Intoxication or Under Influence of drugs Offenses. RSA 265-A:18 is repealed and reenacted to read as follows:

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) Referred by the court to a CCP and, if a first-time offender, required to submit to an alcohol and drug abuse screening within 14 days of conviction, and, if testing demonstrates the likelihood of a substance use disorder, to submit further to a full substance use disorder evaluation within 30 days of conviction, to be administered by a service provider indicated by the CCP, and thereafter to follow the service plan developed from that evaluation by the CCP;

(4) Required to complete an impaired driver education program prior to the restoration of the person’s driver’s license or privilege to drive; provided however, that if the person has previously completed such a program, that shall serve as fulfillment of this requirement;

(5) Required to pay all fees arising from services provided by the CCP and its referrals for the service plan; and

(6) Subject to the following:

(A) 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 been screened and, if required, has completed the driver education program and evaluation with a service provider indicated by a CCP and is in compliance with the service plan produced thereafter; provided, however, that the court may, in its discretion, require the installation of an interlock device in accordance with RSA 265-A: 36 during the period of sentence reduction, and may reimpose the longer suspension period if the defendant becomes noncompliant with the treatment recommendations at any time during the suspension period;

(B) The sentencing court may require the person to submit to random urinalysis or such other tests as the court may deem appropriate; and

(C) 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, the recommendation of the CCP, 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) Referred by the court to a CCP and, if testing demonstrates the likelihood of a substance use disorder, submit further to a full substance use disorder evaluation within 30 days of conviction, to be administered by a service provider indicated by the CCP, and thereafter to follow the service plan developed from that evaluation by the CCP;

(4) Sentenced to a mandatory sentence of not less than 17 consecutive days in the county correctional facility, of which 14 days shall be suspended if the person completes a substance use disorder evaluation within 30 days of conviction, and complies with the service plan developed, provided, however, that any portion of the suspended sentence to the house of correction may be imposed if the defendant becomes noncompliant with the service plan during the suspension period; and

(5) Subject to the following:

(A) 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. Upon confirmation from the CCP that the person is in full compliance with the service program, the court may suspend up to 6 months of this sentence, with the condition that an interlock be installed in accordance with RSA 265-A:36; and

(B) The sentencing court may require the person to submit to random urinalysis or such other tests as the court may deem appropriate.

(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) Referred by the court to a CCP and required to submit to a full substance use disorder evaluation within 30 days of conviction, to be administered by a service provider indicated by the CCP, and thereafter to follow the service plan developed from that evaluation by the CCP;

(4) Sentenced to a mandatory sentence of not less than 35 consecutive days in the county correctional facility, of which 21 shall be suspended if the person completes the required evaluation and complies with the service plan developed, provided, however, that any portion of the suspended sentence to the house of corrections may be imposed if the defendant becomes noncompliant with the service plan during the suspension period; and

(5) Subject to the following:

(A) 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. The court may suspend up to 6 months of this sentence, provided that the person has completed the evaluation with a service provider indicated by a CCP, and the service plan produced thereafter, with the condition that an interlock be installed in accordance with RSA 265-A:36;

(B) The person’s driver’s license or privilege to drive shall not be restored by the department until the person shall have completed the service plan developed by the CCP, and paid all relevant fees; and

(C) The sentencing court may require the person to submit to random urinalysis or such other tests as the court may deem appropriate.

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, and whose 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, or not less than 18 months if the person does not complete an evaluation by a service provider indicated by a CCP within 30 days of conviction and comply with the service plan produced as soon after the evaluation as is reasonable.

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) The person shall be referred by the court to a CCP and required to submit to a full substance use disorder evaluation within 30 days of conviction, to be administered by a service provider indicated by the CCP, and to begin compliance with the service plan developed from that evaluation by the CCP as soon thereafter as is reasonable;

(4)(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 60 consecutive days in the county correctional facility, of which 30 days shall be suspended if the person has completed the evaluation with a service provider indicated by a CCP and is in compliance with the service plan produced thereafter. Failure to successfully comply with the service plan may result in the imposition of all or any portion of the suspended sentence.

(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 17 consecutive days in the county correctional facility, of which 14 days shall be suspended if the person completes the required evaluation and complies with the service plan developed.

(5) The person’s driver’s license or privilege to drive shall be revoked for not less than 3 years. The person’s driver’s license or privilege to drive shall not be restored by the department until the person shall have completed the service plan developed by the CCP, and paid all relevant fees.

(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. The person’s driver’s license or privilege to drive shall not be restored by the department until the person shall have completed the service plan developed by the CCP, and paid all relevant fees.

(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. 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 submit to a full substance use disorder evaluation within 45 days of conviction or to successfully complete recommended treatment shall result in the imposition of any part of the remaining deferred sentence.

(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. 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. The court may suspend up to 6 months of this sentence, conditional on completion of the required evaluation within 30 days of the court’s finding, if not done previously, completion of the service plan developed, and payment of all relevant fees.

VI. 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 impaired that are reasonably equivalent to the laws of this state.

(c) “CCP” means a care coordination program approved by the department of health and human services under RSA 265-A:40.

VII. 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.

VIII. 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 CCP screening, and if testing demonstrates the likelihood of a substance use disorder, a full evaluation and service plan at the person’s own expense, unless the person meets poverty guidelines developed by the commissioner of health and human services.

IX. 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.

5 Boat Operation. Amend RSA 265-A:19, II to read as follows:

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 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] period of license revocation or suspension has ended. Any person operating a boat in violation of this paragraph is guilty of a misdemeanor.

6 Impaired Driver Education Programs. Amend RSA 265-A:39 to read as follows:

265-A:39 Impaired Driver [Intervention] Education Programs.

I. Except as provided in paragraph [IV] III, the commissioner of the department of health and human services shall be responsible for [biennially] approving the impaired driver [intervention] education programs [and 7-day residential intervention programs equivalent to the multiple DWI offender intervention 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] education program unless such program is conducted without cost to the state. Notwithstanding RSA 6:12, any fees collected under subparagraph [IV(g)] III(g) 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] education program shall consist, at a minimum, of 20 hours of [standardized] evidence-based educational curriculum [and an exit interview]. The department of health and human services shall establish and maintain standards of instruction and monitor course content.

[IV.] III. The commissioner of the department of health and human services shall adopt rules, pursuant to RSA 541-A, relative to the impaired driver [intervention] education 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) Necessary 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) Course content and standards of instruction.

(f) Certification and recertification of instructors.

(g) 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.

(h) Any other matter related to the proper administration of this section and the protection of the public.

7 Care Coordination Programs. RSA 265-A:40 is repealed and reenacted to read as follows:

265-A:40 Care Coordination Programs.

I. The commissioner of the department of health and human services shall publish a regularly-updated list of approved care coordination programs (CCPs) and related treatment providers. The commissioner of the department of health and human services shall approve a CCP upon receipt of an application that demonstrates, in a manner satisfactory to the commissioner of the department of health and human services, that the applicant has the professional capability, financial viability, pertinent experience, and potential longevity necessary to provide the services required of a CCP under this chapter. A treatment provider, who may also carry out substance use disorder evaluations, shall be approved upon receipt of an application that demonstrates in equivalent fashion the professional capability, financial viability, pertinent experience, and potential longevity necessary to provide services. The commissioner of the department of health and human services shall monitor CCP services and may withdraw the approval of an CCP or treatment provider upon receipt of reliable evidence that the entity has failed to meet the requirements of this section or is likely to act in a manner that threatens public safety or the welfare of a client.

II. An approved care coordination program (CCP) shall provide the following services for persons arrested for or convicted of an offense under this chapter:

(a) Screening of first-time offenders, using a screening test approved by the department of health and human services, to determine whether they need a full evaluation for substance use disorders.

(b) Referral to a service provider approved by the department for a full evaluation, as necessary.

(c) Development of a service plan based on this assessment of the client, which may include referral to education or treatment programs.

(d) Monitoring of the services provided to the client under the service plan.

(e) Notifying the division of motor vehicles if the client fails to comply with the service plan.

(f) Periodic face-to-face evaluations of the client’s progress.

(g) Administration of drug and alcohol tests or other abstinence monitoring regimen required by the court or included in the service plan.

(h) Reporting the results of monitoring or final evaluation and completion by the CCP, as appropriate, to the court, the division of motor vehicles, and the department of health and human services.

III. Before the service plan is finalized, the client 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.

IV. Persons receiving services from an approved care coordination program and from education or treatment programs included in the service plan shall be responsible for the fees assessed by such programs, including a per-client fee paid by the program provider to the department of health and human services sufficient to cover the costs of monitoring program services, data collection, and administrative support by the department of health and human services. The department of health and human services may review the fees assessed and allow for payment plans, fee waivers, or services for indigent clients or clients that meet poverty guidelines established by the commissioner.

V. The approved care coordination program (CCP) shall determine whether the client has complied with all requirements of the service plan. The CCP shall notify the client, the division, and the department of health and human services when the client has complied with such requirements and paid all applicable fees.

VI. The client shall have the right to a hearing before the commissioner of safety or designee, who shall determine whether the service plan requirements are warranted and appropriate.

8 Utilization of Funds. Amend RSA 265-A:41 to read as follows:

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 and RSA 265-A:40 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] impaired driver 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 program] the department of health and human services’ responsibilities under this subdivision. 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.

9 Attendance at Impaired Driver Education Course Required. RSA 265-A:42 is repealed and reenacted to read as follows:

265-A:42 Attendance at Impaired Driver Education Course 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 completion of an impaired driver education course which is:

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

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

II. The impaired driver education program operating the course shall report completion of the course to the care coordination program.

10 Sentences and Limitations. 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] require such person to [7 consecutive 24-hour periods to be served at the 7-day multiple DWI offender intervention program] be evaluated for risk of alcohol and substance abuse at a care coordination program (CCP) approved by the department of health and human services, and to comply with the treatment plan developed by the CCP as established under RSA 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] if such person [pays] has the ability to pay the fees for the program in full [prior to admission].

11 Effective Date. This act shall take effect January 1, 2012.

LBAO

11-0520

01/18/11

HB 283-FN - FISCAL NOTE

AN ACT relative to impaired drivers.

FISCAL IMPACT:

    Due to time constraints, the Office of Legislative Budget Assistant is unable to provide a fiscal note for this bill at this time. When completed, the fiscal note will be forwarded to the House Clerk's Office.