HB 1502-FN - AS INTRODUCED
2024 SESSION
24-2714
09/08
HOUSE BILL 1502-FN
AN ACT relative to alcohol-related offenses and prohibitions.
SPONSORS: Rep. Berezhny, Graf. 11; Rep. Moffett, Merr. 4
COMMITTEE: Criminal Justice and Public Safety
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ANALYSIS
This bill:
I. Authorizes law enforcement officers to conduct horizontal gaze nystagmus tests on individuals for whom they have reasonable suspicion of driving while intoxicated, and requires the driver to submit to such a request;
II. Provides for the administrative license suspension for individuals who refuse a valid request for a horizontal gaze nystagmus test; and
III. Repeals the prohibition on possessing an open container of alcohol inside the passenger area of a vehicle or OHRV.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-2714
09/08
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to alcohol-related offenses and prohibitions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Sections; Driving or Operating Under the Influence of Drugs or Liquor; Horizontal Gaze Nystagmus Test. Amend RSA 265-A by inserting after section 15 the following new sections:
265-A:15-a Horizontal Gaze Nystagmus Test.
I. Any law enforcement officer, authorized agent, or peace officer, who has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A, may, without making an arrest, require that a person submit to the administration by the officer of the horizontal gaze nystagmus ("HGN") test if the law enforcement officer, authorized agent, or peace officer has reasonable grounds to believe that a person has been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat upon the public waters of the state while:
(a) Under the influence of an intoxicating liquor or controlled drug, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a person's ability to drive;
(b) While the person's alcohol concentration was 0.08 or more or, in the case of a person under the age of 21, 0.02 or more; or
(c) In the case of a person licensed to operate and operating a commercial vehicle or operating a commercial vessel and licensed pursuant to RSA 270-E:22 at the time of the offense, while the person's alcohol concentration was 0.04 or more.
II. The law enforcement officer, authorized agent, or peace officer may use the results of the test in his or her decision to perform additional testing or in whether there is probable cause to make an arrest. The officer or agent shall not draw a negative inference from the person's refusal to take the test.
III. The results of any test may be introduced into evidence in a court for any relevant purpose.
IV. Before an HGN test as authorized by paragraph I is given, the law enforcement officer, authorized agent, or peace officer shall inform the person of the consequences of the person's refusal to comply with the law enforcement officer's, authorized agent's, or peace officer's instructions for the HGN test. If the law enforcement officer, authorized agent, or peace officer fails to comply with the this paragraph, the test shall be inadmissible as evidence in any proceeding before any administrative officer and court of this state.
V. Nothing contained in this section shall be construed to prevent or require a test under RSA 265-A:15 or a subsequent test pursuant to RSA 265-A:4.
265-A:15-b Effect of Refusal to Submit to Horizontal Gaze Nystagmus Test.
I. If a person who is required under RSA 265-A:15-a to submit to a horizontal gaze nystagmus ("HGN") test refuses upon the request of a law enforcement officer, authorized agent, or peace officer to submit to the HGN test:
(a) The director shall suspend his or her license to drive or nonresident driving privilege for a period of 30 days; or
(b) If the person is a resident without a license or permit to drive a motor vehicle in this state, the director shall deny to the person the privilege to drive and the issuance of a license for a period of 30 days after the date of the alleged violation.
II. The 30 day suspension period or denial of issuance period imposed pursuant to this section may run concurrently with any other penalty imposed under any provision of this title.
III. The provisions and penalties of this section, relative to the refusal of consent, shall apply upon satisfactory proof of the following:
(a) That the law enforcement officer, authorized agent, or peace officer had reasonable grounds to believe that the person had been driving, operating, attempting to operate, or in actual physical control of an OHRV, driving, attempting to drive, or in actual physical control of a vehicle, or operating, attempting to operate, or in actual physical control of a boat upon the public waters of the state while under the influence of intoxicating liquor or controlled drug, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impaired the person's ability to drive or while the person's alcohol concentration was 0.08 or more or, in the case of a person under the age of 21, 0.02 or more or, in the case of a person licensed to operate and operating a commercial vehicle or operating a commercial vessel and licensed pursuant to RSA 270-E:22 at the time of the offense, 0.04 or more;
(b) That the person refused to submit to the test upon request of the law enforcement officer, authorized agent, or peace officer;
(c) That the law enforcement officer, authorized agent, or peace officer informed the person that his or her refusal to submit to such a test would result in the loss of his or her privilege to operate a boat on the waters of the state and the loss of his or her privilege to operate a motor vehicle on the ways of this state; and
(d) That the law enforcement officer, authorized agent, or peace officer that administered the test has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A.
IV. If a person's license or privilege to drive is suspended under this section, the person's privilege to operate a boat on the waters of the state shall also be suspended for the same period of time.
2 Driving or Operating Under the Influence of Drugs or Liquor; Administrative License Suspension. Amend RSA 265-A:30 to read as follows:
I. If any person refuses a test as provided in RSA 265-A:14 or RSA 265-A:15-a or submits to a test described in RSA 265-A:4 which discloses an alcohol concentration of 0.08 or more or, in the case of a person under the age of 21 at the time of the violation, 0.02 or more, the law enforcement officer shall submit a sworn report to the department. In the report the officer shall certify that the test was requested pursuant to RSA 265-A:4 and that the person refused to submit to testing or submitted to a test which disclosed an alcohol concentration of 0.08 or more, or, in the case of a person under the age of 21, 0.02 or more.
II. Upon receipt of the sworn report of a law enforcement officer submitted under paragraph I, the department shall suspend the person's driver's license or privilege to drive as follows:
(a) In the case of a refusal to take a test described in RSA 265-A:4, the suspension shall be for the period specified in RSA 265-A:14.
(b) In the case of a person who submits to a test described in RSA 265-A:4 which discloses an alcohol concentration of 0.08 or more or, in the case of a person under the age of 21 at the time of the violation, 0.02 or more, the suspension shall be for:
(1) Six months if there is no prior refusal under RSA 265-A:14, no prior driving while intoxicated or aggravated driving while intoxicated convictions, and no prior administrative license suspension pursuant to RSA 265-A:30.
(2) Two years if there is a prior refusal under RSA 265-A:14, or a prior driving while intoxicated or aggravated driving while intoxicated conviction, or a prior administrative suspension pursuant to RSA 265-A:30.
(c) In the case of a refusal to take a test described in RSA 265-A:15-a, the suspension shall be for the period specified in RSA 265-A:15-b.
III. On behalf of the department, the law enforcement officer submitting the sworn report under paragraph I shall serve immediate notice of suspension on the person, and the suspension shall be effective 30 days after the date of service. If the person has a valid New Hampshire driver's license, an officer shall take the driver's license of the person, and issue a temporary license valid for the notice period. The officer shall send the license to the department along with the sworn report under paragraph I.
IV. If the person submits to a test described in RSA 265-A:4 and the results of the test are not immediately available and therefore no notice has been served by the law enforcement officer, the department shall mail such notice and the suspension shall be effective 30 days after the date of service. If the address shown in the law enforcement officer's report differs from that shown on the department records, the notice shall be mailed to both addresses. The notice shall be presumed to have been served 3 days after mailing. Upon receipt of the notice of suspension and before requesting any review or hearing under RSA 265-A:31, if the person has a New Hampshire driver's license that has not been surrendered, the person shall surrender such person's license at a place designated by the department and shall be issued a temporary driving permit valid for the notice period.
V. In the case of a person who has a driver's license from another jurisdiction, all provisions of this subdivision shall apply except that surrender of the out-of-state driver's license and issuance of a temporary driving permit shall not be required. The department shall transmit a copy of the suspension order to the motor vehicle authorities in the jurisdiction where the person's license was issued, and also in the jurisdiction of the person's residence if different from that where the license was issued.
3 Driving or Operating Under the Influence of Drugs or Liquor; Administrative Review and Hearings. Amend RSA 265-A:31, II to read as follows:
II. The scope of the administrative review or hearing shall be limited to the issues of:
(a) Whether the officer had reasonable grounds to believe the [arrested] person had been driving, attempting to drive, or was in actual physical control of a vehicle upon the ways of this state or operating or attempting to operate a boat on the waters of this state or was driving, operating, attempting to operate, or in actual physical control of an OHRV while under the influence of intoxicating liquor, narcotics, or drugs;
(b) The facts upon which the reasonable grounds to believe such are based;
(c) Whether the person had been arrested, if required;
(d) Whether the person has refused to submit to the test upon the request of the law enforcement officer or whether a properly administered test or tests disclosed an alcohol concentration of 0.08 or more, or, in the case of a person under 21 years of age, 0.02 or more;
(e) Whether the officer informed the arrested person of his or her right to have a similar test or tests conducted by a person of his or her own choosing, if applicable; and
(f) Whether the officer informed the arrested person of the fact that refusal to permit the test would result in suspension of his or her license or driving privilege and, if applicable, that testing above the alcohol concentration level specified in RSA 265-A:2 or RSA 265-A:3 would also result in suspension.
4 New Paragraph; Driving or Operating Under the Influence of Drugs or Liquor; Administrative Review and Hearings. Amend RSA 265-A:31 by inserting after paragraph I the following new paragraph:
I-a. Any person whose license is suspended or revoked for refusing to submit to a horizontal gaze nystagmus test as authorized by RSA 265-A:15-a, may, at the time of the request for an administrative review or hearing and notwithstanding any provision of law to the contrary, request any video from a body-worn camera and, if available, dashboard camera from the police agency that is alleging the refusal. The police agency shall provide the person with the requested video within 7 days of the receipt of the request. A police agency's failure to comply with this provision shall result in the automatic vacating of the suspension or revocation. If both body-worn camera and dashboard camera videos are available and requested, the police agency shall provide both videos in order to comply with this section. If body-worn camera video is not available, the suspension or revocation shall be automatically vacated.
5 Alcoholic Beverages; Enforcement, Requirements and Penalties; Removal of Opened Table Wine Bottle. Amend RSA 179:27-a, II to read as follows:
II. Any partially consumed bottle of table wine which is to be removed from the premises under paragraph I shall be securely sealed and bagged, by the licensee, [either to be] and in conformance with any applicable local open container law for those patrons on foot[, or transported as required by RSA 265-A:44, in the trunk of a motor vehicle. If the vehicle is not equipped with a trunk, the securely sealed opened table wine bottles may be stored and transported in that compartment or area of the vehicle which is the least accessible to the driver.]
6 Other Alcohol and Drug Offenses; Transportation of Alcoholic Beverages by a Minor. Amend RSA 265-A:45, I to read as follows:
I. [Notwithstanding RSA 265-A:44, II,] No driver under the age of 21 shall, except when accompanied by a parent, stepparent, legal guardian, grandparent, step-grandparent, or legal age spouse, domestic partner, or sibling, transport any liquor or beverage in any part of a vehicle. A driver violating this section may have his or her license or privilege to drive suspended for 60 days.
7 Repeal. RSA 265-A:44, relative to transporting alcoholic beverages, is repealed.
8 Effective Date. This act shall take effect January 1, 2025.
24-2714
12/1/23
HB 1502-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to alcohol-related offenses and prohibitions.
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund | None | |||||
Expenditures | Indeterminable | |||||
Funding Source | General Fund, Highway Fund, Turnpike Fund, Other Funds | |||||
Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source | None | |||||
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Estimated Political Subdivision Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
County Revenue | $0 | $0 | $0 | $0 | ||
County Expenditures | Indeterminable | |||||
Local Revenue | $0 | $0 | $0 | $0 | ||
Local Expenditures | Indeterminable | |||||
METHODOLOGY:
This bill adds, deletes, or modifies a criminal penalty, or changes statute to which there is a penalty for violation. Therefore, this bill may have an impact on the judicial and correctional systems, which could affect prosecution, incarceration, probation, and parole costs, for the state, as well as county and local governments. A summary of such costs can be found at: https://gencourt.state.nh.us/lba/Budget/Fiscal_Notes/JudicialCorrectionalCosts.pdf
The Department of Safety states this bill may also result in an indeterminable increase in costs associated with training, form and manual changes, and off-duty personnel required to attend a potential increase in administrative hearings.
AGENCIES CONTACTED:
Judicial Branch, Judicial Council, Department of Justice, Department of Corrections, Department of Safety, New Hampshire Association of Counties, and New Hampshire Municipal Association