? In New Hampshire, and elsewhere, DWI cases are made overly complicated, and unnecessarily expensive to all concerned, because most drivers are prosecuted twice:?
???? -There is the prosecution in court for Driving While Impaired; and
????? -There is usually also an administrative ?loss of license (ALS) which is imposed by the Division of Motor Vehicles for either (a) refusing a post arrest alcohol concentration test (breath, blood or urine) or (b) taking a test which discloses an alcohol concentration of more than 0.8, for adults, and more than 0.2 for other adults, e.g. those who are under 21, and juveniles.
???? The ALS loss of license is 6 months–but it?the driver has either a prior DWI or a prior “refusal,” the ALS suspension is for two years.? So the mandatory ALS suspension is for a longer period than the minimum suspension for a DWI, First Offense.? In “refusal” cases, the suspension is always consecutive (e.g. in addition to) any court imposed revocation.? In “per se” cases, the suspension always concurrent with the court imposed revocation.
????Now, I understand that its not technically two prosecutions.? Under the law, the ALS is an administrative proceeding designed to further the State’s regulatory purpose of ensuring driver safety.? In other words, it’s not a criminal proceeding and the ALS loss of license is not a form of criminal punishment.? That’s why it does not violate the double jeopardy provisions of the State and Federal Constitutions to impose both a DWI sentence and an ALS license suspension.? But if its your license, you sure would feel as if you were prosecuted twice for the same offense.
???? It is also true that not everybody who is charged with DWI is subject to double prosecution.? Some small fraction of persons arrested for DWI are not asked to take an alcohol concentration test–typically because the Intoxilyzer 5000 or its operator are unavailable.? Some drivers may be prosecuted despite a low Intoxilyzer test.? But most of the time, if you’re charged with DWI you? are also likely to face an ALS suspension.
???? This puts many, many drivers between the proverbial rock and and hard place.? Most (but not all) New Hampshire police departments and prosecutors will agree to withdraw the request for the ALS suspension in return for a plea to a DWI charge.? In the case of a “refusal” this could save the driver from a six month consecutive license suspension–so its not an inconsequential offer.? But for a driver who is innocent of DWI, rejecting this offer is the price of going to trial.?
??? Yes, the driver gets an ALS hearing (if he requests one?within thirty days of arrest or notice of the test results)?at which the arresting officer must testify and be cross-examined.? And yes, the driver can get a transcript of this hearing which can prove invaluable in court in the DWI case.? But what if the?driver?loses the ALS hearing before going to trial on the DWI?? It is more difficult to win the ALS hearing than it is to win a DWI trial because: (a) you face a Department of Safety Hearings Officer rather than a judge; (b) the State does not need to prove its case beyond a reasonable doubt; (c) you have no right to suppress illegally obtained evidence; and (d) the State does not need to prove that you were actually impaired by alcohol.?? Also, if you have an expert based defense to the ALS (such as you might have if you were challenging an Intoxilyzer result), you would have to pay the expert to come to the ALS hearing in addition to the trial.
???? So, for many drivers this means that the price of a DWI trial?can be a six month (or two year) ALS suspension.? Pony up the ante.
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