AVOIDING THE PITFALLS OF RECIPROCITY
More and
more frequently attorneys, as well as defendants arrested for DWI, have to face
the question of what will happen to the driver's license of a person charged
with DWI in a state other than the state that has issued the license. I have
many clients that I represent on NH DWI arrests who hold out-of-state driver's
licenses. I also am frequently asked to explain to my fellow attorneys from
out-of-state what New Hampshire may do to their DWI clients who hold New
Hampshire driver's licenses.
The foremost principal to recognize is that, in every case where the prosecution
is in a state other than the licensing state, the effects of reciprocity must be
considered. By way of example, let us assume that a New Hampshire attorney is
representing a NH DWI defendant; that defendant has a prior conviction in the
state issuing his driver's license. Let us further assume that the prosecutor
either knows nothing about the out-of-state conviction, or knows about it and is
willing to offer the client a plea to a first offense with only a six-month
loss. Should your client take that offer? No, not without understanding that it
is very likely to result in the client losing his license in the home State for
a much longer period of time, just as if he had been convicted of a second
offense there. The reduction to a first offense may sound like it benefits the
client, since all the New Hampshire court does is hand down a six-month loss of
the right to operate in New Hampshire. But, by operation of the Interstate
Driver License Compact, RSA 263:77, NH is obligated
to report the NH DWI conviction to the home state, and the home state will then
undoubtedly revoke the driver's license. It may do so either for the same period
of time for which it would revoke for a second offense conviction, or for a
defined period of time that may prove considerably longer than six months.
The length of the license loss in the home state is defined by the law of the
home state. In order to advise the client of the true implications of the plea,
it is imperative for the client and his attorney to understand the law of the
licensing state. The possible effect of an administrative suspension of the
right to operate in New Hampshire on an out-of-state licensed driver must also
be considered, since many states will revoke a driver’s license of their
residents if they learn that the right to operate of the license holder has been
suspended or revoked in an out of state court, for virtually any reason,
including administrative suspensions. Other states revoke for convictions only.
The trend today, however, is to revoke the license of any license holder whose
right to operate has been suspended by another state.
If an out-of-state attorney were to call me, seeking information on the New
Hampshire Department of Safety’s course action with respect to a New
Hampshire-licensed client who may be sentenced, let us say in Vermont, to a
six-month loss of the right to operate on a first offense DWI, but who has on
his New Hampshire motor vehicle record a prior DWI conviction within the last
seven years, what advice can I give him? Will that client lose his New Hampshire
license as a result of the Vermont plea? Absolutely, unless some bureaucrat
doesn’t do his or her job right, and the conviction gets lost in the jungle of
paperwork, but do not count on it. How long will that loss be? One year,
initially, according to Saf-C 204:07. Why one year?
Why not six months, why not three years? Because, that is how long
Saf-C 204:07 says it will be. Why initially? Because
Saf-C 204:07 (d) allows the licensee to petition for
a hearing on license restoration after completion of a minimum of six months
revocation and an approved alcohol education program and compliance with the
provisions of Saf-C 205.04(a)(6).
Further traipsing through the legal quagmire of the Department of Safety
Regulations under Saf-C 200, reveals a treacherous
stretch of reciprocity quicksand, namely Saf-C 204.01.
That section, which has a counterpart in the Motor Vehicle law of many other
states, requires the Department of Safety to
suspend the license of any New Hampshire licensed driver who is found to have
been suspended for convictions, administrative actions, and/or defaults in any
other jurisdiction. If your New Hampshire licensed client is convicted in
another state and also lost his or her license administratively for refusal to
submit to chemical testing, the current position of the Department of Safety is
that his or her NH license will be revoked for the entire period that he or she
is under revocation or suspension in the state of the offense. Even if your
client is acquitted of the underlying DWI, but is suspended for refusal to
submit to testing or for submitting to a test at or over the legal limit, New
Hampshire will revoke so long as the suspension remains in the state of the
offense. It is worth noting, however, that the statutory authority of the
Department of Safety to adopt a rule revoking for administrative actions other
than defaults seems to be non-existent, and Saf-C 204.01
may be susceptible to challenge. Although there is very broad language in
RSA 263:77 Article I. Findings and Declaration of Policy,
nevertheless, RSA 263:77, Article IV. Effect of Conviction
appears to limit the suspension authority of the licensing state to convictions
only, not administrative suspensions.
In 2004, the Department of Safety updated its regulations on suspensions for
reciprocity. It is interesting to note that both the former
Saf-C 204.01 and Saf-C 204.06 (the
predecessor to today’s Saf-C 204.07) provided for
enhanced suspensions for convictions reported to the State of New Hampshire as
subsequent offense DWI’s, but both replacement regulations leave out any
reference to reported DWI convictions other than first offenses. Nevertheless,
Saf-C 204.01(b) would mandate suspension for the
same period of time as New Hampshire would have sentenced for the same conduct
if it had occurred in New Hampshire. In addition, Saf-C
204.01(c) requires suspension for the same period of time as the person
is under suspension in the state where the conviction occurred. The one bright
light is that if the suspension is for DWI or reckless driving, then the New
Hampshire suspension begins on the date of conviction in the other state,
meaning that if there is some significant time difference between the suspension
in the initiating state and the one in New Hampshire, the length of the New
Hampshire suspension is reduced accordingly.
New Hampshire has no statutory or regulatory provision for a hardship license,
emergency license, work license, or other license authorizing limited or
conditional operation. Accordingly, the Department of Safety does not currently
honor any such exception that may have been allowed in the State of the
conviction, although that policy is currently subject to a constitutional
challenge, most likely on full faith and credit grounds.
Reciprocity law is not simple to comprehend nor necessarily easy to locate and
to construe. In addition, reciprocity rules are subject to change on short
notice. No one should rely on the information contained in this brief article
without first checking the current state of the law and its applicability to the
particular circumstance of the New Hampshire-licensed operator charged with DWI
in an out-of-state jurisdiction. Nor is this article intended to be all
encompassing, but rather to serve as a red flag of warning to any of you who
hold a New Hampshire license or need to advise someone who does.
July 2011
Eugene C. Struckhoff, III
STATUTES AND REGULATIONS
263:77 Driver License Compact Enacted.
The commissioner of safety is hereby authorized, whenever he determines it
feasible, to enter into a compact on behalf of the state of New Hampshire with
any other jurisdiction legally joining therein in the form substantially as
follows:
COMPACT
Article I. Findings and Declaration of Policy
(a) The party states find that:
(1) The safety of their streets and highways is materially affected by the
degree of compliance with state and local ordinances relating to the operation
of motor vehicles.
(2) Violation of such a law or ordinance is evidence that the violator engages
in conduct which is likely to endanger the safety of persons and property.
(3) The continuance in force of a license to drive is predicated upon compliance
with laws and ordinances relating to the operation of motor vehicles, in
whichever jurisdiction the vehicle is operated.
(b) It is the policy of each of the party states to:
(1) Promote compliance with the laws, ordinances, and administrative rules and
regulations relating to the operation of motor vehicles by their operators in
each of the jurisdictions where such operators drive motor vehicles.
(2) Make the reciprocal recognition of licenses to drive and eligibility
therefor more just and equitable by considering the overall compliance with
motor vehicle laws, ordinances and administrative rules and regulations as a
condition precedent to the continuance or issuance of any license by reason of
which the license is authorized or permitted to operate a motor vehicle in any
of the party states. --- skip back to editorial
Article II. Definitions
As used in this Compact:
(a) "State" means a state, territory or possession of the United States, the
District of Columbia, or the Commonwealth of Puerto Rico.
(b) "Home state" means the state which has issued and has the power to suspend
or revoke the use of the license or permit to operate a motor vehicle.
(c) "Conviction" means a conviction of any offense related to the use or
operation of a motor vehicle which is prohibited by state law, municipal
ordinance or administrative rule or regulation, or a forfeiture of bail, bond or
other security deposited to secure appearance by a person charged with having
committed any such offense, and which conviction or forfeiture is required to be
reported to the licensing authority.
Article III. Report of Convictions
The licensing authority of a party state shall report each conviction of a
person from another party state occurring within its jurisdiction to the
licensing authority of the home state of the licensee. Such report shall clearly
identify the person convicted; describe the violation specifying the section of
the
statute, code or ordinance violated; identify the court in which action was
taken; indicate whether a plea of guilty or not guilty was entered, or
conviction was a result of the forfeiture of bail, bond or other security; and
shall include any special findings made in connection therewith.
Article IV. Effect of Conviction
(a) The licensing authority in the home state, for the purposes of suspension,
revocation or limitation of the license to operate a motor vehicle, shall give
the same effect to the conduct reported, pursuant to Article III of this
Compact, as it would if such conduct had occurred in the home state, in the case
of
convictions for:
(1) Manslaughter or negligent homicide resulting from the operation of a motor
vehicle;
(2) Driving a motor vehicle while under the influence of intoxicating liquor or
narcotic drug, or under the influence of any other drug to a degree which
renders the driver incapable of safely driving a motor vehicle;
(3) Any felony in the commission of which a motor vehicle is used;
(4) Failure to stop and render aid in the event of a motor vehicle accident
resulting in the death or personal injury of another.
(b) As to other convictions, reported pursuant to Article III, the licensing
authority in the home state shall give such effect to the conduct as is provided
by the laws of the home state.
(c) If the laws of a party state do not provide for offenses or violations
denominated or described in precisely the words employed in subdivision (a) of
this Article, such party state shall construe the denominations and descriptions
appearing in the subdivision (a) hereof as being applicable to and identifying
those offenses or violations of a substantially similar nature, and the laws of
such party state shall contain such provisions as may be necessary to ensure
that full force and effect is given to this Article. ---
skip back to editorial
Article V. Applications for New Licenses
Upon application for a license to drive, the licensing authority in a party
state shall ascertain whether the applicant has ever held, or is the holder of,
a license to drive issued by any other party state. The licensing authority in
the state where application is made shall not issue a license to drive to the
applicant if:
(a) The applicant has held such a license, but the same has been suspended by
reason, in whole or in part, of a violation and if such suspension period has
not terminated.
(b) The applicant has held such a license, but the same has been revoked by
reason, in whole or in part, of a violation and if such revocation has not
terminated, except that after the expiration of one year from the date the
license was revoked, such person may make application for a new license if
permitted by law. The licensing authority may refuse to issue a license to any
such applicant, if, after investigation, the licensing authority determines that
it will not be safe to grant to such person the privilege of driving a motor
vehicle on the public highways.
(c) The applicant is the holder of a license to drive issued by another party
state and currently in force, unless the applicant surrenders such license.
Article VI. Applicability of Other Laws
Except as expressly required by provisions of this Compact, nothing contained
herein shall be construed to affect the right of any party state to apply any of
its other laws relating to licenses to drive to any person or circumstance, nor
to invalidate or prevent any driver license agreement or other cooperative
arrangement between a party state and a non-party state.
Article VII. Compact Administrator and Interchange of Information
(a) The head of the licensing authority of each party state shall be the
administrator of this Compact for his state. The administrators, acting jointly,
shall have the power to formulate all necessary and proper procedures for the
exchange of information under this Compact.
(b) The administrator of each party state shall furnish to the administrator of
each other party state any information or documents reasonably necessary to
facilitate the administration of this Compact.
Article VIII. Entry Into Force and Withdrawal
(a) This Compact shall enter into force and become effective as to any state
when it has enacted the same into law.
(b) Any party state may withdraw from this Compact by enacting a statute
repealing the same, but no such withdrawal shall take effect until 6 months
after the executive head of the withdrawing state has given notice of the
withdrawal to the executive heads of all other party states. No withdrawal shall
affect the validity or applicability by the licensing authorities of states
remaining party to the Compact of any report of conviction occurring prior to
the withdrawal.
Article IX. Construction and Severability
This Compact shall be liberally construed so as to effectuate the purposes
thereof. The provisions of this Compact shall be severable and if any phrase,
clause, sentence or provision of this Compact is declared to be contrary to the
constitution of any party state or of the United States or the applicability
thereof to any government, agency, person or circumstance is held invalid, the
validity of the remainder of this Compact and the applicability thereof to any
government, agency, person or circumstance shall not be affected thereby. If
this Compact shall be held contrary to the constitution of any state party
thereto, the Compact shall remain in full force and effect as to the remaining
states and in full force and effect as to the state affected as to all severable
matters. Source. 1986, 110:1, eff. July 19, 1986. --- skip
back to editorial
§ Saf-C 204.01. License Under Suspension or Revocation
(a) Upon receipt of evidence that a New Hampshire resident is under suspension
or revocation for motor vehicle offenses, court defaults, or administrative
actions in another jurisdiction, the commissioner shall determine if such person
currently holds, or is an applicant for, a New Hampshire driver's license.
Parking violations and failure to pay excise taxes shall be excluded from this
rule.
(b) If the person holds, or is an applicant for a New Hampshire driver's
license, the commissioner shall give the same effect to the offense or conduct
reported, pursuant to (a) above, as he would if the offense or conduct had
occurred in New Hampshire.
(c) If the commissioner determines the person is under suspension or revocation
in another jurisdiction, s/he shall deny or suspend the person's license or
driving privileges until the person furnishes evidence of compliance with the
law of such other jurisdiction. Such person shall be entitled to a hearing upon
request.
(d) If the suspension or revocation is for driving while intoxicated or reckless
operation, the department's effective date of revocation shall be the date of
final conviction in the other jurisdiction. The license revocation period shall
be the same as if the conviction had taken place in New Hampshire.
Source:
#2250, eff 12-31-82; ss by #2946-a, eff 1-3-85; ss by #4451, eff
6-24-88; ss by #4844, eff 6-20-90; amd by #5274, eff 11-20-91; amd by #6249,
INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by #6337, eff 9-25-96
(from Saf-C 203.01
); amd by #7349, eff 8-22-00; ss by #8230-B, eff 12-17-04
§ Saf-C 204.07. Suspension/Revocation for Serious Offenses Under
Reciprocity
(a) The commissioner shall revoke the license or operating privileges of a
resident upon receipt of evidence of conviction in another jurisdiction for
reckless driving, driving while intoxicated, negligent homicide resulting from
the operation of a motor vehicle or manslaughter resulting from the operating of
a motor vehicle.
(b) The date of revocation or suspension shall be the date of final conviction
by a court of competent jurisdiction based upon a criminal or civil proceeding.
(c) If the conviction is a driving while intoxicated and there is no prior
driving while intoxicated convictions, the revocation shall be for the same
duration as if the conviction had occurred in New Hampshire. Restoration shall
be contingent upon the person's compliance with Saf-C
205.04.
(d) If the conviction is a driving while intoxicated first offense and there is
a record of prior driving while intoxicated conviction(s), the initial
revocation shall be one year subject to review after successful completion of an
approved alcohol education program pursuant to RSA 172-B:2-a. Upon such
completion and after a minimum 6-month period of revocation, the defendant may,
under the provisions of Saf-C 204.06(h), submit a
written request for a hearing. Restoration shall be contingent on the
defendant's compliance with Saf-C 205.04.
(e) If the conviction is for reckless operation, the minimum period of
revocation shall be 60 days. If there is a record of prior reckless operation
convictions within 5 years, the provisions of Saf-C 207.04
and Saf-C 205.02 shall apply.
(f) If the conviction is for either negligent homicide or manslaughter, the
restoration provisions of Saf-C 209 shall apply.
(g) If action is taken under paragraphs (c), (d), (e), or (f), the defendant
shall be afforded the opportunity for a hearing. Any such hearing request shall
not postpone, delay or otherwise impact the revocation or suspension. The
hearing shall be scheduled within 15 days from the date the request is received.
(h) At the hearing, after introduction of evidence by the state, the respondent
shall have the burden of proving by a preponderance of evidence that:
(1) The respondent is not the same person named on the notice(s);
(2) The respondent was not convicted of the charges or similar charges as listed
in (a) above; and
(3) The respondent's operating privilege or license was not suspended or revoked
as a result of the conviction.
Source:
#2250, eff 12-31-82; ss by #2946-a, eff 1-3-85; ss by #4451, eff
6-24-88; ss by #4844, eff 6-20-90; ss by #6249, INTERIM, eff 6-16-96, EXPIRES:
10-14-96; ss and moved by #6337, eff 9-25-96 (from
Saf-C 203.07 ); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss and moved by #8230-B, eff
12-17-04 (formerly Saf-C 204.06
)
Saf-C 205.04 Restoration: Influence of Alcohol or Drugs.
(a) Any person whose driver's license or operating privilege has been revoked
pursuant to RSA 265:82 or 265:82-a, shall have such license or privilege
restored upon meeting the following requirements:
(1) The period of revocation imposed by the court has expired;
(2) Any revoked license has been physically surrendered to the division as
required, or the respondent has notified the department that the license was
lost or stolen;
(3) A license application and fee are filed with the division if the revoked New
Hampshire license expired or if the revokee is a new resident;
(4) The fee required by RSA 263:42, V, has been paid;
(5) All court fines have been paid and defaults cleared;
(6) The individual's file reflects documentation of successful completion of an
approved alcohol education program;
(7) A negative alcohol evaluation report pursuant to Saf-C
204.02 is on file;
(8) All requirements imposed by the court in conjunction with its findings have
been complied with, including but not limited to:
a. Driver certification; or
b. Professional counseling;
(9) Proof of financial responsibility in the form of an SR-22 certificate is on
file; and
(10) There are no other revocations or suspensions in effect under any other
statute, rule or regulation including reciprocity agreements and requirements.
--- skip back to editorial
Source:
#3170, eff 12-31-85; #4451, eff 6-24-88; ss by #4844, eff 6-20-90;
ss by #6249, INTERIM, eff 6-16-96, EXPIRES 10-14-96; ss and moved by #6337, eff
9-25-96 (from Saf-C 204.04)