NH safety officials press to increase penalty for refusing DWI test
Mar. 31—CONCORD — Top state safety officials want to double the penalty for motorists who refuse to take a test when stopped for drunken or drugged driving in New Hampshire, which has among the highest percentage of refusals in the country.
Assistant Safety Commissioner Eddie Edwards said one of his agency's top priorities in 2024 is legislation that would create an incentive for more motorists to submit to testing.
"We have had a number of deaths on our roadways and get an enormous amount of interaction with family members who have lost loved ones and they ask: What are we doing to prevent this from happening," Edwards told the House Criminal Justice and Public Safety Committee during a hearing last Friday on the Senate-passed bill (SB 418).
Currently, drivers arrested for DWI for the first time, whether they refuse to take the test or not, get their license administratively suspended for six months.
The legislation would increase that suspension period to one year for someone who refuses to submit to either a breath or blood test for alcohol or a 12-step evaluation officers at the scene make to determine whether a person was driving under the influence of illegal drugs.
Since there are no negative consequences for refusing to take the test, Chris Casko, a lawyer and head of the Department of Safety's Hearings Bureau, said 70% of those arrested here do not submit to testing.
"That's not good for public safety and it's not always good for the individual," Casko said, adding that many motorists reflexively refuse testing even if they aren't impaired to the legal limit of .08 blood alcohol level.
Other changes to DWI punishments in this bill would include:
—Aggravated DWI: Any motorist convicted of aggravated driving while intoxicated — equivalent to a 0.16% blood alcohol content — would have a license suspended for three years rather than two years under the current law.
—Second or subsequent refusal: Similarly, this would lengthen license suspension from two to three years for a driver who refused a second or subsequent time to submit to a test for simple DWI.
—Out-of-state incidents: For the first time, the bill would permit the state to add an out-of-state DWI conviction or refusal to take a test as counting against a motorist's record in New Hampshire for the purposes of increasing someone's license suspension.
—Remove mandatory jail for drivers who take the test: Currently any driver who's convicted of aggravated DWI is sentenced to at least 17 days in county jail; this would permit a judge to suspend that sentence, but only for a motorist who submitted to testing.
—Reducing license suspension for pleading guilty: Currently, anyone convicted of DWI can have their license suspended for up to a year, six months administratively and then another six months for a court conviction. This change would permit a judge to cut that total suspension to no more than 180 days but only for an offender who pleads guilty to a DWI charge.
Robert Moses of Amherst, representing the New Hampshire Criminal Defense Lawyers Committee, who opposed this bill, said these changes could prompt the Supreme Court to judge this to be a criminal proceeding rather than a civil administrative proceeding.
Were this to happen, Moses said, the proposal could lead to dismantling Casko's hearings bureau and instead require that all these license suspension matters go through the courts.
Advocates say it would be a deterrent
Sen. Bill Gannon, R-Sandown, the bill's prime sponsor, said this beefed-up penalty would act as a deterrent.
But Moses disagreed.
"It's been established over the years that changing the penalties for refusing has not increased the likelihood that people are going to take the test," Moses said.
"The vast majority of defendants do not trust them, particularly the breath test."
Moses also said many don't take the test because the forms given by law enforcement to offenders about their rights were vague and difficult to understand.
At a minimum, Moses said, any changes to this system should eliminate any administrative license suspension for a motorist who is found to be not guilty or had his or her DWI case dismissed.
Many motorists
Casko said many motorists fail to understand the state's implied consent law means that, while they can refuse to take the test, this decision is the equivalent of an admission of guilt and that leads to automatic, administrative license suspension.
"The word on the street is that (if) you just refuse, you will do better," Casko said. "Some of it is (philosophical). 'I don't have to do that; it's my right to refuse.'"
Complicating enforcement is the growing number of motorists who aren't abusing alcohol but some other drug such as marijuana, cocaine or powerful prescription painkillers.
The American Civil Liberties Union of New Hampshire also opposed the measure.
The state Senate passed it on a voice vote in early March.
