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Bar News - January 18, 2013


Criminal Law: New DWI Statute Brings New Penalties

By:

The New Hampshire Legislature made some significant changes to the stateís criminal code in 2012, including a major rewrite of the DWI statute and associated penalties.

Starting the first of this year, RSA 265-A, the DWI statute, has a brand new look. DWI penalties in New Hampshire are changing across the board, and the familiar acronyms IDIP (Impaired Driver Intervention Program) and MOP (Multiple Offender Program) are being replaced by a new program: The Impaired Driver Care Management Program (IDCMP). While still untested, this new process seems to change the landscape of the DWI penalty world with a potentially lengthier evaluation and impaired driver education process. What follows is a breakdown of the changes by offense.

A DWI first offense remains a class B misdemeanor with a mandatory minimum fine of $500 under the new statute. However, the new statute changes the alcohol education component dramatically. Also, the ability to qualify for a shorter loss of license is significantly more difficult. A defendant must not only enroll in and complete a 20-hour education program, but also complete an alcohol and drug screening within 14 days of conviction through the newly established IDCMP. Defendants previously had up to 30 days to complete the initial screening.

A determination of the defendantís substance use is made at the initial screening. If the screening demonstrates a likelihood of a substance use disorder (note: not abuse, but use), then the defendant must submit to a full substance use disorder evaluation within 30 days of conviction and follow the "service plan" developed by the IDCMP evaluation. The screening, evaluations, and education programs are all still at the expense of the defendant.

A license suspension may be reduced by three months from the original nine months provided that the defendant is able to: a) be screened within 14 days; b) complete any required substance use disorder evaluation within 30 days with a service provider indicated by an IDCMP; c) is in compliance with any service plan produced; and d) has completed a Department of Health and Human Services approved impaired driver education program. Additionally, the court has discretion to require the installation of an interlock device during the period of sentence reduction and may also re-impose the longer suspension period if the defendant becomes noncompliant with the treatment recommendations at any time during the suspension period.

Similar to a first offense DWI, the offense level and mandatory minimum fine for an aggravated DWI does not change, but the alcohol education component and minimum jail time does. The mandatory minimum jail term is now 17 consecutive days, of which 12 days will be suspended, so long as the alcohol education component and IDCMP scheduling requirements are met. To qualify, an evaluation must occur within 30 days after release and be completed within 60 days of release. Subsequent compliance with the service plan developed is also required.

The other significant change to aggravated DWI penalties lies in the defendantís ability to shorten the loss of license and jail time incurred. Upon confirmation from the IDCMP that a person is in full compliance with the service plan, the court may suspend up to six months of the sentence, provided that an interlock device is installed for the period of the suspended sentence (in addition to any period required under RSA 265-A:36) and all fees have been paid. Again, the court has discretion to impose any suspended sentence should the defendant not comply with any of the requirements of the statute or the developed service plan.

The sentence for a felony-level aggravated DWI now requires a mandatory sentence of 35 consecutive days in jail, of which 21 days will be suspended, so long as the following conditions are met: a) the alcohol education component and IDCMP scheduling requirements are fulfilled; b) a full IDCMP substance use disorder evaluation is completed on time; c) and an interlock device is installed in accordance with RSA 265-A:36. The scheduling requirements for the IDCMP mirror that of an Aggravated DWI conviction. A minimum 18-month to a possible two-year loss of license will also occur, but six months of the license loss may be suspended by the court, provided that the IDCMP requirements are met, an interlock device is installed for the period of the suspended sentence (in addition to any period required under RSA 265-A:36), and all fees have been paid.

In cases of subsequent offenses, MOP is replaced by the IDCMP with the same scheduling requirements as aggravated and felony aggravated DWI charges. Additionally, the mandatory minimum sentence for a complaint that charges a prior conviction within the two years preceding date of the second offense is a minimum of 60 days, 30 of which will be suspended. If the complaint charges a prior conviction more than two years, but not more than 10 years preceding the date of the second offense, the mandatory minimum sentence mimics that of an aggravated DWI offense.

Annulments, Laurie Issues Among Other Changes

Last year brought a number of other changes to criminal law in New Hampshire. Among the most notable were those that dealt with annulment of criminal records, disclosure of police misconduct and jury nullification, which is discussed in detail on page 4.

Under the amended statute RSA 651:5, it will no longer be a crime to disclose the annulled records of another person. Additionally, the records will now remain in the courthouse instead of "disappearing," although both the file and the electronic record must clearly identify that the arrest, conviction, and sentence have been annulled.

The arrest and conviction will now also show up in state police criminal records, but the record will indicate that the arrest, conviction, and sentence were annulled. Lastly, the arresting agency and prosecuting agency must clearly identify that the arrest, conviction, and sentence were annulled in their respective records.

Effective June 27, 2012, the statute regulating police personnel files and any exculpatory evidence contained therein was revived. The statute requires that exculpatory evidence contained within a police personnel file be disclosed to the defendant. If it cannot be determined whether evidence in a police personnel file is exculpatory, the statute requires an in-camera review by the court.

Non-exculpatory evidence in a police personnel file is not subject to the courtís review unless the judge finds that probable cause exists to believe that the file contains evidence relevant to that criminal case. If such probable cause is found, then the file is delivered to the court for in-camera review. If the review reveals relevant evidence, the evidence must be released.

Elizabeth Perry, a member of the NHBA Ethics Committee, practices in Manchester at the Law Offices of Katherine J. Morneau, PLLC and can be reached at (603) 943-5647.

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