Bar News - January 20, 2016
Criminal Law: Hardship License Law ‘Appears to Have Some Shortcomings’
By: Dan Hynes
Limited Driver’s License for First-Offense DWI Offenders Took Effect Jan. 1
It has long been the law in New Hampshire that drivers convicted of driving while intoxicated were unable to obtain a limited license (also referred to as a limited license, work-license, or Cinderella license in some states, like Massachusetts) after being convicted of DWI. Effective Jan. 1, 2016, NH RSA 263:57-b now allows for a hardship license to be issued under certain conditions.
To be eligible for a limited license, a person must first be convicted of a first offense, non-aggravated DWI that did not involve driving a commercial vehicle. The person must then apply to the court for a hardship license (limited driving privilege license). To be eligible, the driver will have to obtain SR-22 insurance on his or her driver’s license, filed with the DMV. The next step is to show a need for the hardship license. The law is broad as to what constitutes a need, including:
(a) That the person must operate a motor vehicle as a requisite of the person’s occupation or employment.
(b) That the person must operate a motor vehicle to seek employment or to get to and from a place of employment.
(c) That the person must operate a motor vehicle to get to or from an alcohol or drug treatment or rehabilitation program.
(d) That the person or a member of the person’s immediate family requires medical treatment on a regular basis and the person must operate a motor vehicle in order that the treatment may be obtained.
(e) That the person must operate a motor vehicle to continue his or her education.
(f) That the person must operate a motor vehicle to attend job training.
The limited license will only take effect after someone has been under suspension for at least 45 days (including both the criminal suspension and any administrative suspension from the DMV). If granted, the limited license will only be valid for the times and manner stated in the court order. This is important to be aware of, as drivers who drive outside of the scope of the limited license face the same penalties as someone who drives after suspension of DWI. Those penalties include a minimum seven days in jail, an additional year loss of license, and mandatory interlock device.
Once the hardship license is granted, the driver must notify local law enforcement, and the driver can only operate a vehicle that has an enhanced interlock device. An enhanced interlock device is a breath-testing device for the car. The cost to the person is around $100 per month.
This law addresses a major problem for many drivers that often results in a spiral of worsening criminal charges or other harmful behavior. Many people lost jobs following DWI convictions, could not provide for their families, or obtain treatment or medical care. A majority of the states have offered some form of hardship license for a while. New Hampshire had remained one of the few states did not offer any hardship license, regardless of need.
This law had the support of Mothers Against Drunk Driving (MADD), as one of the requirements is that the driver have an interlock device, which is intended to prevent people from driving with even small amounts of alcohol in their systems.
The law also appears to have some shortcomings. The statute requires a DWI conviction before a driver can apply for a hardship license. Many drivers charged with DWI go under suspension for 180 days under the implied consent statute, for either refusal of a chemical test, or testing above the legal limit. Those accused drivers would have to wait until they plead guilty or are found guilty of the DWI before even applying for the hardship license. Drivers who are found not guilty of DWI wind up with a longer loss of license than those drivers who are found guilty and obtain limited driving privileges. One would hope the NH Legislature will address this issue in the future.
This bill was signed into law in January 2015 and took effect Jan. 1, 2016. Presumably, this gave the DMV an opportunity to address how to handle it. It also is an opportunity and possibly and obligation for lawyers to address the needs of past clients.
The law allows people to obtain the hardship license even if they were convicted prior to the law’s effective date. As a first-offense DWI carries a maximum license loss of two years, someone who was found guilty of a first offense years ago can take advantage of this new law. It would be good practice for attorneys to contact those clients who may now be eligible for a hardship license.
Dan Hynes is the principal attorney at Liberty Legal Services and has been a member of the NH Bar Association since 2006.