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Administrative Review Hearing in New Hampshire

When a driver refuses to submit to a test under the New Hampshire implied consent law or submits to a test which shows the driver’s BAC to be 0.08% or greater (0.02% of greater if under 21 years of age), the driver will have his or her driver’s license suspended.  The driver will be given notice of this, either at the time refusal or of the test, or if the test results are not immediate, upon return of the results, and the suspension will be effective 30 days from the date of notice.

If the driver does not have a prior refusal to submit to a test, DWI conviction, or administrative suspension, the license or privilege will be for a period of six months.  If the driver does have a prior refusal, conviction, or administrative suspension, the period of suspension will be two years.  If the driver has a license issued by the state of New Hampshire, he will be required to surrender his license and will receive a temporary license that is good until the date that the suspension starts.  However, if the driver has a license from another jurisdiction, the New Hampshire Division of Motor Vehicles will not require the surrender of the license, but will revoke driving privileges in New Hampshire and will send notice to the jurisdiction that issued the license.

If a driver has his license suspended under the Administrative License Suspension (ALS) statute, he has a right to have an ALS review or hearing.  The difference is that at a hearing, the driver will be present while a review simply asks the department to review the suspension.  However, in order to obtain a review or hearing, the driver must request a hearing in writing within thirty days of receiving notice that the license will be suspended under the ALS statute.  Any request made after this period of time will automatically be denied.  If a driver requests a hearing, he should also request that the officer who ordered the test be present.  If the officer is required to be present, the suspension will automatically be reversed.  Although this is an unlikely outcome, a driver should take advantage of all possible opportunities available for having the ALS reversed.

There is also a requirement that the request set forth specific grounds for a review or hearing, and at least one of those reasons must be one of the six set forth in the statute allowing review (RSA § 265-A:31).  A timely request that sets forth a proper reason for a hearing will guarantee that the driver be given that hearing within twenty days of receiving the request.  However, even if a review or hearing is granted, if the review or hearing does not take place before the date that the ALS begins, it will not stay the suspension, or keep the suspension from beginning (thirty days after notice of suspension).

Even if the suspension is not reversed by a review or at a hearing, the driver still has hope.  He may petition to have the ruling reviewed by the director of the NH Department of Safety.  During the director’s review, the director will review to determine if the ruling was erroneous as a matter of law or cannot be sustained by the facts surrounding the suspension.  If at the first review or hearing the suspension is reversed, the officer who required the test may also petition for a review by the director.

Finally, even after a review or hearing, or second review by the director, an individual may still appeal the ruling by filing a petition in superior court in the county in which he or she was arrested.  Generally, the court will determine the lawfulness and reasonableness of the suspension based on the administrative review(s) and the evidence presented during those reviews.  The court has the power to stay the suspension pending the outcome of the appeal if it feels that a stay is proper, the power to remand the case for further findings, the power to overturn the decision reached during review, and the power to request an oral argument by both parties or allow new evidence.

Although legal counsel is not required for a review, hearing, or appeal, the time constraints and necessary filings make it a good idea to retain counsel to ensure the driver takes the necessary steps to receive a fair review.  It will also ensure that all relevant material is introduced at the hearing and that the driver’s best arguments are brought to light.

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