ALCOHOL OR DRUG IMPAIRMENT
Driving or Operating Under the Influence of Drugs or Liquor
265-A:31 Administrative Review and Hearings.
I. (a) Any person whose license is suspended or revoked under this subdivision may request either an administrative review or a hearing. The request shall be in writing and shall state the grounds upon which the person seeks to have the order of suspension or revocation rescinded, which grounds shall be limited to those provided in paragraph II. The filing of the request shall not stay the suspension or revocation. A request for either administrative review or hearing received by the department after 30 days from the date the notice is issued shall be denied as untimely.
(b) If the request is for an administrative review, the request may be accompanied by any statement or other evidence which the person wants the department to consider. Upon receiving the request the department shall review the order, the evidence upon which it is based, including whether the person was driving or in actual physical control of a motor vehicle, and any other information brought to the attention of the department, and shall determine whether sufficient cause exists to sustain the order.
(c) If the request is for a hearing, the request shall also indicate whether or not the person desires to have the law enforcement officer present. The hearing shall be held within 20 days after the filing of the request unless the person requests a continuance. A request for a continuance by the person shall not stay the order of suspension or revocation. The hearing shall be recorded, and be conducted by the department's designated agent. The hearing may be conducted upon a review of the law enforcement officer's report if there is no request to have the officer present. If there is a request that the law enforcement officer be present at the hearing and the officer fails to appear without good cause shown, the case shall be dismissed and the order rescinded. If the person requesting the hearing fails to appear without good cause shown, the right to a hearing shall be waived and the order sustained.
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;
(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; 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 that testing above the alcohol concentration level specified in RSA 265-A:2 or RSA 265-A:3 would also result in suspension.
III. In the case of either an administrative review or a hearing, the hearing examiner shall issue his or her recommendation on the order of suspension or revocation within 15 days of the request for administrative review or the hearing date. The recommendation shall be in writing and a copy shall be provided to the parties. The recommendation shall be final unless a review or appeal is filed under RSA 265-A:33 or RSA 265-A:34.
Source. 2006, 260:1, eff. Jan. 1, 2007.