DEPARTMENT
OF SAFETY
Commissioner's
Office
Tel.
# (603) 271-2791
Revision Note:
Document
#2789, effective 8-2-84, contained Part Saf-C 201 relative to agency
procedures, notice, complaints, and hearings.
Part Saf-C 201 expired on 8-2-90, and the rule number is now reserved
for future rulemaking. Document #2789
had superseded Document #2286, effective 1-19-83.
The
requirements in former Part Saf-C 201 were largely incorporated into Part Saf-C
202 by Document #4844, effective 6-20-90.
CHAPTER Saf-C 200 PROCEDURAL AND HEARINGS RULES
Statutory Authority: RSA 21-P:14, IV (j), (k), (q) and (s); RSA
21-P:14, V (e), (f), (g), and (p); RSA 262:19, VI; and RSA 263:98, V
PART Saf-C 201
PURPOSE
Saf-C
201.01 Purpose.
(a) The purpose of these rules is to set forth:
(1) The practice and procedures for the
administrative hearings conducted by the commissioner;
(2) The motor vehicle accident reporting
requirements;
(3) The handling of protested checks;
(4) A uniform point system for identifying
frequent violators of traffic laws;
(5) The approval process for driver improvement
courses; and
(6) The approval process for driver attitude
courses.
Source. #6337, eff 9-25-96; ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-A,
eff 12-17-04
Saf-C
201.02 Scope. All administrative hearings conducted by the
commissioner or director or his designee shall be governed by the rules of
practice set forth herein unless otherwise provided for by rules adopted by the
department.
Source. #6337, eff 9-25-96; ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-A,
eff 12-17-04
Saf-C
201.03 Applicability.
(a) Except as otherwise provided by department
rules, the rules in this chapter shall apply to any adjudicative proceedings
held by the department.
(b)
The hearings examiner shall not waive any of the provisions of these
rules.
Source. #7349, eff 8-22-00; ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-A,
eff 12-17-04
PART
Saf-C 202 DEFINITIONS
Saf-C
202.01 Definitions. Whenever used in these rules, the following
terms shall be construed as set forth below, unless different meaning is
clearly stated within the text:
(a) "Accident" means
"accident" as defined in RSA 259:1-a.
(b) "Accident evaluator" means an
individual who conducts a detailed review and examination of motor vehicle and
police accident reports to determine compliance with the provisions of the New
Hampshire financial responsibility law, RSA 264.
(c) "Administrative hearing" or
"hearing" means a proceeding in which the legal rights, duties,
immunities or privileges of a respondent are required by law or rule to be
determined by the commissioner or director or their agents after an opportunity
for a hearing.
(d) "Agent" means any person designated
by the department to engage in administrative procedures.
(e) "Calendar year" means January 1
through December 31.
(f) "Certificate" means "certificate"
as defined in RSA 259:9.
(g) "Complaint" means a written
statement submitted by a person, association, partnership, corporation, state
agency or any other legal entity that sets forth specific allegations and
requests administrative action by the department.
(h) "Commissioner" means the
commissioner of the
(i) "Conviction" means a finding, as
determined by the court, of guilty, guilty continued for sentencing, or placed
on file with a finding of guilty, and also includes the definition in RSA
259:14.
(j) "Dealer" means "dealer"
as defined in RSA 259:18.
(k) "Department" means
"department" as defined in RSA 259:19.
(l) "Director" means
"director" as defined in RSA 259:20, or his or her designee.
(m) "Division" means
"division" as defined in RSA 259:22.
(n) "Driver" means "driver"
as defined in RSA 259:25.
(o) "Financial responsibility
administrator" means the individual designated pursuant to RSA 260:7, II,
to assist the director for the purpose of administration of the motor vehicle
financial responsibility law, RSA 264.
(p) "Foreign state" means any state
within the
(q) "Habitual offender" means
"habitual offender" as defined in RSA 259:39.
(r) "Hearings examiner" means the
individual designated by the department to hold administrative hearings.
(s) "Judgment" means
"judgment" as defined in RSA 259:46.
(t) "License" means "license"
as defined in RSA 259:48.
(u) "Licensee" means a person to whom a
license, as defined in (t) above, has been granted.
(v) "Motor vehicle" means "motor
vehicle" as defined in RSA 259:60.
(w) "Next of kin" means "next of
kin" as defined in RSA 259:66-a.
(x) "Non-resident" means
"non-resident" as defined in RSA 259:67.
(y) "Owner" means "owner" as
defined in RSA 259:72.
(z) "Party" means each person named or
admitted as a person who has an interest in the subject matter of the
administrative hearing held hereunder and necessary to the conduct of such
hearing.
(aa) "Permit" means any and all
documents conveying privileges, such as but not limited to inspection stickers,
dynamite permits, non-driver's identification, school bus permits, dealer
privileges and inspection privileges, issued by the department.
(ab) "Person" means "person"
as defined in RSA 259:74.
(ac)
"Reciprocating state" means
"reciprocating state" as defined in RSA 259:84.
(ad) "Resident" means
"resident" as defined in RSA 259:88.
(ae) "Revocation" means
"revocation" as defined in RSA 259:90.
(af) "Road toll administrator" means the
individual designated pursuant to RSA 260:7, I, to assist the director for the
purpose of administration of the motor vehicle road toll laws, RSA 260:30 et.
seq.
(ag) "Security agreement" means
"security agreement" as defined in RSA 259:97.
(ah) "SR-22 certificate" means a uniform
document filed by an insurance company pursuant to RSA 264:21 and RSA 259:9
that certifies the policyholder is insured for
(ai) "SR-26 certificate" means a uniform
document filed by the insurance company that provides notice that the SR-22
certificate issued to the policyholder has been canceled.
(aj) "State" means "state" as
defined in RSA 259:106.
(ak) "Suspension means "suspension"
as defined in RSA 259:107.
(al) "Uninsured motor vehicle" means
"uninsured motor vehicle" as defined in RSA 259:117.
(am) "Vehicle" means "vehicle"
as defined in RSA 259:122.
(an) "Way" means "way" as
defined in RSA 259:125.
(ao)
"Working days" means days exclusive of Saturdays, Sundays, and
state and federal holidays.
Source. #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 (formerly Saf-C 202.02); ss by #8174, INTERIM, eff 9-25-04,
EXPIRES: 3-24-05; ss by #8230-A, eff
12-17-04
PART Saf-C 203
PROCEDURAL RULES
Saf-C
203.01 Complaints.
(a) Within 30 days after receipt of a complaint
and completion of an investigation, the
commissioner shall review the complaint to determine whether any statutory
basis exists for administrative action.
(b) If no basis for administrative action exists,
the complaining party shall be notified within 30 days from the conclusion of
the investigation and the complaint shall be dismissed. In such a case, a hearing shall not be
scheduled on the complaint.
(c) Upon investigating a complaint, if the
commissioner determines that the complaint is incomplete, or that additional
information is required in order to determine whether a statutory basis exists
for administrative action, the commissioner shall temporarily defer any action
and shall notify the complainant of any additional information that shall be
required.
(d) If the commissioner determines that a
statutory basis exists for administrative action, the commissioner shall, in
accordance with these rules, schedule a hearing and issue notice thereof.
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 #5064, eff
2-7-91; 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 202.03); ss
by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04
Saf-C 203.02 Notice of Hearing Requirements.
(a) Unless otherwise provided in these rules, all
notices of hearings shall be given in writing, or if prearranged by electronic
means, and addressed to the party being called in for the hearing. The notice shall be prepared on an official
form of the department and shall be sent in a sealed envelope through first
class
(b) If an attorney files an appearance on behalf
of a party, all subsequent correspondence from the department relative to that
appearance shall be forwarded to the attorney and no further correspondence
shall be forwarded directly to the client.
(c) In the event an attorney no longer represents
the party, the party shall file a written statement of this fact with the
commissioner, allowing subsequent correspondence from the department to be
forwarded to the party.
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 202.04); amd by #7349, eff 8-22-00; amd by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-A,
eff 12-17-04
Saf-C 203.03 Requests for Hearings.
(a)
An individual requesting a hearing shall do so in writing and file it at
the bureau of hearings. Facsimiles at 603 271 6653 or email requests at Safety-hearings@safety.state.nh.us
shall be accepted.
(b)
All requests for a hearing shall be typed, legibly written or printed.
(c)
The request for a hearing shall contain the following:
(1) The
name date of birth and address of the individual requesting the hearing;
(2) The
name and address of the individual’s representative, if any;
(3) A
concise statements of the facts which warrant the relief requested;
(4) A
description of the action which the individual wishes the bureau to take;
(5) A
citation to any statutes, rules, orders, or other authority which entitles the
individual to the relief requested; and
(6) The
signature of the individual with a date indicating when the request was signed.
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 #5688, eff 8-20-93;
amd by #6068, eff 7-28-95; amd by #6249, INTERIM, eff 6-16-96, EXPIRES:
10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C 202.05); amd by #7349,
eff 8-22-00; amd by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04
Saf-C 203.04 Contents of Notice. All notices shall comply with RSA 541-A:31,
III.
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, EXPIRESS 10-14-96; ss and moved
by #6337, eff 9-25-96 (from Saf-C 202.06); ss by #8174, INTERIM, eff 9-25-04,
EXPIRES: 3-24-05; ss by #8230-A, eff
12-17-04 (formerly Saf-C 203.03)
Saf-C
203.05 Scheduling of Hearing. Unless otherwise provided in these rules, each
hearing shall be assigned a hearing number and set for a date as soon as
practical after the complaint has been received and reviewed. The hearing shall be scheduled to allow a
reasonable time for preparation of the case by both the department and the
parties.
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 202.07); amd by #7349, eff 8-22-00; amd by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-A,
eff 12-17-04 (formerly Saf-C 203.04)
Saf-C 203.06 Requests for Continuances.
(a) A request for continuance of a hearing shall
be made in writing with a copy to the respective party(s) and received by the
department, absent exigent circumstances, at least 5 working days prior to the
hearing.
(b) Exigent circumstances shall include:
(1) Serious illness;
(2) Hospitalization;
(3) Incarceration;
(4) Death of a family member; or
(5) Any other unforeseeable circumstance beyond
the party's control that requires the party's absence from the scheduled
hearing.
(c) Appearance by a representative of a party
shall not waive the party's required presence at a hearing.
(d) The written request or motion shall contain
but not be limited to:
(1) The specific reason(s) for the request
including issue(s) to be resolved and conflicts with scheduled court
appearances;
(2) Optional dates and times when all interested
parties shall be available;
(3) The identity of the requestor; and
(4) The name and date of birth of the respondent.
(e) If optional dates and times are not provided
as required by (d)(2), the bureau shall
deny the request.
Source. #4451, eff 6-24-88; ss by #4844, eff 6-20-90;
amd by #5274, eff 11-20-91; amd by #5687, eff 8-20-93; amd by #6249, INTERIM,
eff 6-16-96, EXPIRES: 10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C
202.08); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.05)
Saf-C 203.07 Assignment and Transfer of Cases.
(a) When a case is assigned to a hearings
examiner, it shall remain with that hearings examiner until the case is
concluded unless transferred pursuant to these rules.
(b) The presiding hearings examiner shall not be
the person who is the official complainant against the party involved.
(c) In the event of absence, disability or
disqualification of a hearings examiner, a case assigned to one hearings
examiner shall be transferred to another by the appropriate supervisor.
(d) A case may be transferred from one designated
location to another with due regard for the convenience and necessity of the
parties or witnesses, and as the interests of justice may require.
Source. #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 202.09); ss by #8174, INTERIM, eff 9-25-04, EXPIRES:
3-24-05; ss by #8230-A, eff 12-17-04 (formerly
Saf-C 203.06)
Saf-C
203.08 Hearings Examiner Withdrawal. Each hearings examiner shall, at any stage of
the hearing process, withdraw from a case if
the hearings examiner has or has had a personal or business relationship
with any party, witness or representative, that may hinder him or her from
being able to arrive at an impartial decision on the issue(s), or for any other
reason that might interfere with his or her ability to remain impartial.
Source. #4451, eff 6-24-88; ss by #4844, eff 6-20-90;
amd by #5688, eff 8-20-93; amd by #6249, INTERIM, eff 6-16-96, EXPIRES:
10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C 202.10); amd by #7349,
eff 8-22-00; amd by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.07)
Saf-C
203.09 Representation of Parties.
(a) Parties may appear pro se or be represented
by an attorney or as specified by RSA 311:1.
(b) Parties or their representatives may
cross-examine witnesses and present evidence and witnesses on their own behalf.
(c) In the event a representative or party
appears to be unable to ask pertinent questions regarding the issue(s) for
which the hearing is being held, the hearings examiner shall conduct and
complete such questioning to obtain all necessary information for the hearing
examiner to make a fair and informed decision.
(d) Appearance by a representative of a party
shall not waive the party's required presence at a hearing.
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 #5314, eff
1-27-92 (Interim); ss by #5398, eff 5-20-92; amd by #5688, eff 8-20-93; ss and
moved by #6337, eff 9-25-96 (from Saf-C 202.11); ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-A,
eff 12-17-04 (formerly Saf-C 203.08)
Saf-C
203.10 Public Access.
(a) Except as otherwise provided by law,
administrative hearings shall be open to the public.
(b) Members of the press shall be admitted to the
hearings whenever the public is permitted.
If the press is present at a hearing, the hearings examiner shall brief
them, off the record, in the presence of all parties, as to the nature and purpose
of the hearing.
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 202.12); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by
#8230-A, eff 12-17-04 (formerly Saf-C
203.09)
Saf-C
203.11 General Authority of Hearings
Examiners.
(a) Subject to the statutes and rules governing
the department, each hearings examiner shall have the authority to:
(1) Schedule and hold hearings;
(2) Administer oaths and affirmations;
(3) Issue subpoenas on behalf of the state;
(4) Determine the order of proof in any
proceeding;
(5) Receive relevant evidence and rule on offers
of proof in hearings;
(6) Take official notice of any facts which are
of common knowledge and general notoriety;
(7) Take, or cause to be taken, depositions;
(8) Regulate and control the course of an
administrative hearing;
(9) Hold on the record conferences for the
settlement or simplification of issues, or for obtaining stipulations as to
issues of fact or proof by consent of the parties;
(10) Dispose of procedural requests, including
adjournments or continuances, at the request of the parties or on the hearing
examiner's own motion;
(11) Interview and examine witnesses as the case
may require;
(12) Direct parties to appear at hearings;
(13) Consider and evaluate the facts and evidence on
the record and make findings of fact, conclusions of law, and dispositions;
(14) Determine credibility or weight of evidence
in making findings of fact and conclusions of law;
(15) Render oral and written decisions, reports or
recommendations as authorized by statute or rule;
(16) Make a complete record of any proceeding
including all relevant matters;
(17) Take any action in a proceeding necessary to
conduct and complete the case not inconsistent with applicable statutes, rules,
and precedents;
(18) Place an individual or other legal entity on
probation;
(19) Place all or part of a penalty in abeyance
providing that this action is not inconsistent with any other rule or law; and
(20) Require that a respondent have a picture
taken for identification purposes.
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 #5428, eff 6-25-92; amd by #5688, eff 8-20-93; amd by #6249,
INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by #6337, eff 9-25-96
(from Saf-C 202.13); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by
#8230-A, eff 12-17-04 (formerly Saf-C
203.10)
Saf-C 203.12 Control of Hearing.
(a) In cases of disorder or refusal to comply
with the rules of the hearing, the hearings examiner shall use reasonable means
to control the hearing.
(b) Parties, representatives, and witnesses shall
not engage in bitter exchanges, vulgarities, or abuse or make offensive or
insulting comments. When such an act is
committed, the hearings examiner shall admonish the offender reminding the
offender that such behavior does not contribute to a fair hearing and impedes
the orderly disposition of a case.
(c) If the offense is repeated and further
admonition appears fruitless, the hearings examiner shall exclude a disorderly
person from the hearing.
(d) A disorderly person shall not lose the case
because of his/her offensive conduct or the offensive conduct of his/her
representative or witness.
(e) Notwithstanding (d) above, if a disorderly
person's offensive conduct is so flagrant that it prevents the completion of
the case, the disorderly person shall be warned that his/her conduct shall
result in a default judgment entered for the case. Such party may reopen the
case upon submitting his/her offer of proof or argument in an orderly fashion.
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 202.14); amd by #7349, eff 8-22-00; amd by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-A,
eff 12-17-04 (formerly Saf-C 203.11)
Saf-C
203.13 Record of Hearing.
(a) The hearings examiner shall record the
administrative hearing and so notify all parties present.
(b) The hearings examiner shall make available,
upon written request by a party and upon receipt of payment as set forth in
Saf-C 203.14(b), a duplicate copy of the recording.
(c) Pursuant to RSA 541-A:31, VII, a party may request, in writing, a transcript
of the hearing but shall first pay all reasonable costs for such transcription,
as specified in Saf-C 203.14(b).
(d) The written request for a duplicate copy of
the recording or a transcript shall be submitted and received by the hearings
examiner no later than 75 days from the date of the final decision of the
administrative hearing. The department
shall retain hearing recordings for at least 75 days from the date of final
decision.
(e) Any person attending an administrative
hearing may tape or otherwise record the hearing. The hearings examiner conducting the hearing,
upon being advised of any person's intention to make such a recording, shall
notify all parties present of the fact that this record is in addition to the
official recording being made by the bureau of hearings.
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 #5228, eff
9-25-91; amd by #5753, eff 12-2-93; ss by #6249, INTERIM, eff 6-16-96, EXPIRES:
10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C 202.15); amd by #7349,
eff 8-22-00; amd by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.12)
Saf-C 203.14 Fee Schedule and Pre-Hearing Access.
(a) Unless otherwise provided by these rules, any
party or his representative shall be provided, upon request, with copies of
material regarding the issue(s) to be decided.
(b) Requests pursuant to (a) above, shall be
accompanied by the following fees:
(1) For accident reports, $1.00 per page;
(2) For insurance records, $8.00 per record;
(3) For certified records, $10.00 per record;
(4) For a complete non-certified driving record,
$8.00 per record;
(5) For non-certified copies of any notices or documents,
such as, but not limited to suspension notices, revocation notices, restoration
notices, or hearing reports, $1.00 per page;
(6) For certified notices, $5.00 per page;
(7) For certified accident report, $5.00 per
page;
(8) For certified typed transcript of hearing,
$3.75 per page;
(9) For a copy of an audio record of the hearing,
$25.00 per recording accompanied by a blank storage and container compatible to
the type of recording made.
(c) Public records, not otherwise declared
confidential by law, shall be open for inspection by appointment with the
bureau of hearings or the financial responsibility administrator.
(d) All checks for fees set forth in this section
shall be made payable to the State of
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 #5377, eff
4-21-92; amd by #5688, eff 8-20-93; ss by #6143, eff 12-21-95; ss by #6337, eff
9-25-96; ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.13)
Saf-C
203.15 Identification of Parties.
(a) The hearings examiner shall, at the opening
of the hearing:
(1) Determine the identities of all parties and their
representatives and witnesses;
(2) Obtain the parties addresses and the correct
spelling and pronunciation of their names and addresses;
(3) Record on the report of the hearing, the name
of the respondent and his/her representative(s), members of the prosecution,
and all witnesses appearing;
(4) Identify himself or herself, his/her official
title and function and briefly summarize the following:
a. The purpose of the hearing;
b. The issues involved;
c. The procedural rights of all parties; and
d. The statute(s) or rule(s) under which the
hearing is being held.
(b) For the purposes of (a)(1), if a party's or
witness' identity is in question, the hearings examiner shall require the
individual to produce an official driver license, nondriver identification form
or other official verification of identity.
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
202.16); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.14)
Saf-C
203.16 Sequestering of Witnesses.
(a) If there is a clear dispute of facts between
the parties in which the credibility of testimony might determine the outcome
of the hearing, the hearings examiner, on the request of a party, shall
sequester witnesses until they are called to testify.
(b) Notwithstanding (a) above, a witness shall be
sequestered only if prosecution and defense, as appropriate, shall have one
individual present throughout the process to ensure neither side is placed at
an unfair advantage for summation.
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 202.17); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by
#8230-A, eff 12-17-04 (formerly Saf-C
203.15)
Saf-C
203.17 Oaths or Affirmations.
(a) In any hearing in which administrative action
affecting the rights or privileges of any party might be taken, an oath or
affirmation shall be administered by the presiding hearings examiner to each
witness prior to identifying each witness and receiving testimony.
(b) If a witness asserts an objection to the
taking of an oath for religious or other related reasons, an affirmation shall
be administered.
(c) Interpreters shall be administered an oath or
affirmation to truthfully and accurately translate, to the best of their
ability, all questions asked and answers given.
(d) Once a witness has taken the oath or made the
affirmation at any hearing it shall not be necessary for him or her to be sworn
again for subsequent testimony on the same day and in the same case. The record of the proceeding shall indicate
that a person was recalled to testify and reminded that s/he was still under
oath or affirmation.
Source. #6337, eff 9-25-96 (from Saf-C 202.18); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C 203.16)
Saf-C
203.18 Motions.
(a) Motions shall be in written form unless
orally presented at the hearing. Written
motions shall be included in the record of the proceeding and filed together
with the case file.
(b) All written motions submitted on the date of
the hearing shall be excluded from consideration by the hearings examiner.
(c) Notwithstanding (b) above, the hearings
examiner shall accept a written motion submitted on the day of the scheduled
hearing if the moving party is able to show:
(1) The existence of newly discovered evidence
which due diligence would not have discovered prior to the hearing; or
(2) Exigent circumstances, pursuant to Saf-C
203.05(b), existed that prevented the filing of the motion prior to the day of
the hearing.
(d) If the hearings examiner accepts the written
motion on the day of the scheduled hearing and the opposing party requests time
to respond, a continuance shall be granted. The continuance shall be attributed
to the party submitting the motion.
(e) Oral motions shall be recorded in full in any
transcript of the proceeding.
(f) Once all testimony has been heard and closing
arguments, if any, have been completed, the hearing shall be closed and no
motion(s) in any form shall be allowed unless expressly authorized by these
rules.
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 #6143, eff
12-21-95; amd by #6249, INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved
by #6337, eff 9-25-96 (from Saf-C 202.19); ss by #8174, INTERIM, eff 9-25-04,
EXPIRES: 3-24-05; ss by #8230-A, eff
12-17-04 (formerly Saf-C 203.17)
Saf-C
203.19 Applicable Rules of Evidence. The following rules shall govern the
introduction and admissibility of evidence at administrative hearings.
(a) Administrative hearings shall not be bound by
common law or the rules of evidence.
(b) All relevant evidence shall be admissible.
(c) Evidence may include, but shall not be
limited to:
(1) Depositions;
(2) Affidavits;
(3) Official documents; and
(4) Testimony of witnesses.
(d) Pursuant to RSA 541-A:33, II, the hearings
examiner may exclude any irrelevant, immaterial, or unduly cumulative or
repetitious evidence.
(e)
Applicable statutory and constitutional privileges and immunities
requiring exclusion of evidence in civil proceedings shall be recognized,
provided however, that nothing contained herein shall prohibit a party from
waiving his privilege or immunity.
Source. #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 202.20); ss by #8174, INTERIM, eff 9-25-04, EXPIRES:
3-24-05; ss by #8230-A, eff 12-17-04 (formerly
Saf-C 203.18)
Saf-C
203.20 Concluding Proceeding. No party shall be required to rest his case
at a given time, except when a hearings examiner has heard all relevant
evidence and rebuttals.
Source. #6337, eff 9-25-96 (from Saf-C 202.21); amd
by #7349, eff 8-22-00; amd by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss
by #8230-A, eff 12-17-04 (formerly
Saf-C 203.19)
Saf-C
203.21 Rendering Decision.
(a) Except as otherwise provided by law, within a
reasonable time after the hearing, not to exceed 30 working days after the
conclusion of the hearing, the hearings examiner shall issue a written decision
stating the action to be taken by the department, the reason therefore, and
notify the respondent of his/her rights to appeal.
(b) All decisions shall be reached on the basis
of a preponderance of the evidence.
(c) The decision of the hearings examiner shall
constitute the decision of the commissioner.
(d) The decision setting forth findings of fact,
conclusions of law and disposition, made by the hearings examiner, shall be
provided to all parties.
(e) Upon request of the hearings examiner, either
party may submit proposed findings of fact and conclusions of law. If submitted, the hearings examiner's
decision shall include rulings on the proposals.
Source. #6337, eff 9-25-96; ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-A,
eff 12-17-04 (formerly Saf-C 203.20)
Saf-C 203.22 Failure to Appear.
(a) Any party to whom a notice of hearing has
been forwarded but fails to appear shall have a default judgment rendered
against him or her which shall result in administrative action being taken if,
after a review of the case file, a hearings examiner determines that a lawful
basis for such action exists. However,
there shall be no default judgment if the commissioner determines there was
good cause for failing to appear.
(b) Good cause shall include, but not be limited
to:
(1) Serious illness;
(2) Hospitalization;
(3) Incarceration;
(4) Death of a family member; or
(5) Any other unforeseeable circumstance beyond
the party's control that requires the party's absence from the scheduled
hearing.
Source. #6337, eff 9-25-96 (from Saf-C 202.23); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C 203.21)
Saf-C
203.23 Re-Opening of Cases.
(a) Whenever a hearings examiner is satisfied
that good cause exists to explain why a person failed to appear at an
administrative hearing at which a default decision was rendered, the hearings
examiner shall strike the default judgment and reopen the case for
determination on the merits.
(b) Good cause shall shall be as specified in
Saf-C 203.22 (b).
(c) A case that has been decided other than by
default shall be reopened whenever:
(1) A party alleges the existence of
newly-discovered evidence which due diligence would not have discovered prior
to hearing; or
(2) A party alleges any material error, omission,
misconstruction of applicable statutes or rules or misrepresentations of
applicable precedents.
(d) An application to reopen a case shall be in
the format of a written request when submitted pursuant to (c) above. It shall outline the newly discovered
evidence or an allegation and specific references of material error, omission
or misconstrued statutes or rules, or misrepresentation of applicable
precedents.
(e) In the case of a default judgment, a request
pursuant to (a) above, shall be submitted to and received by the department no
later than 15 working days from the date of the default or from the date of the
condition that prevented the appearance and notification no longer existed,
whichever occurs first. Requests
received subsequent to the time requirement shall be denied as untimely. An application to reopen shall not suspend
the applicable appeal period prescribed by statute.
(f) An application to reopen a case, when
submitted pursuant to (a) above, shall outline the good cause, pursuant to (b)
above, that existed which precluded the person from appearing at the
administrative hearing.
(g) An application to reopen cases shall be
denied if it is determined that such application:
(1) Is made solely to obtain a delay in the
disposition of the case; or
(2) Is not in compliance with this section.
Source. #6337, eff 9-25-96 (from Saf-C 202.24); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C 203.22)
Saf-C
203.24 Official Notice.
(a) The hearings examiner shall take official
notice pursuant to RSA 541-A:33, V.
(b) The hearings examiner shall state on the
record the matters of which he/she intends to take official notice, and afford
the parties the opportunity to object.
Source. #6337, eff 9-25-96 (from Saf-C 202.25); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C 203.23)
Saf-C
203.25 Multiple Cases: Consolidation. Where the interests of justice shall be
better served without substantial prejudice to the rights of any party, a
hearings examiner shall sever one case from another or shall consolidate 2 or
more cases preserving for all parties the right of appeal from the single or
several decisions rendered.
Source. #6337, eff 9-25-96 (from Saf-C 202.26); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-A, eff 12-17-04 (formerly Saf-C 203.24)
Saf-C 203.26 Notice of Suspension or Revocation.
(a)
Unless otherwise provided in these rules, all notices of suspension or
revocation shall be sent on an official form of the department by first class
mail or personal service.
(b)
The notice of suspension or revocation shall contain the following:
(1) The
name, address and date of birth of person against whom the suspension or
revocation is issued;
(2) The
date of action;
(3) The
file number, if any;
(4) An
indication as to whether suspension or revocation is being issued;
(5) The
license or registration number, or both as appropriate;
(6) The
privileges and permits subject to administrative action;
(7) The
period of suspension or revocation;
(8) An
indication as to:
a. The
court action and date;
b. The
accident involvement and date;
c. The
administrative action and date;
d. The
default action and date;
e. The
insurance canceled and date; and
f.
Whether security is required and if so, amount thereof and date
required;
(9) The
reason for suspension or revocation;
(10)
Notification that when a license has been suspended or revoked, driving
of motor vehicles shall cease and the license shall be returned to the
department at once;
(11)
Notification that driving of motor vehicles shall not be resumed until a
license is restored in writing by the department;
(12)
Notification that when a non-resident's privilege to drive has been
suspended or revoked, driving of motor vehicles in New Hampshire shall cease
and shall not be resumed until that privilege has been restored;
(13)
Notification that when a vehicle registration or privilege to drive a
vehicle has been suspended or revoked, driving of the vehicle shall cease at
once;
(14)
Notification that if a vehicle registration has been suspended or
revoked, the registration certificate and number plates shall be delivered to
the department immediately;
(15)
Notification that failure to deliver a suspended or a revoked license or
registration certificate and plates may result in continued suspension at the
rate of one day for each day of non-compliance;
(16) Notification
that when a permit has been suspended or revoked the privileges authorized
shall cease;
(17)
Explanations relating to the reason for suspension or revocation shall
be printed on the form; and
(18) Such
other information as the commissioner shall deem necessary to put the
individual on notice of any impending administrative action.
Source. #6337, eff 9-25-96 (from Saf-C 202.27); amd
by #7349, eff 8-22-00; ss by #8230-A, eff
12-17-04 (formerly Saf-C 203.25)
Saf-C
203.27 Appeal of Administrative
Sanction. Except as otherwise
provided by law, any suspension or revocation resulting from administrative
action shall remain in full force and effect pending the outcome of the appeal
or expiration of the sanction imposed.
Source. #7349, eff 8-22-00; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.26)
Saf-C
203.28 Burden of Proof. Unless otherwise specified by law, the burden
of proof shall be on the moving party.
Source. #7349, eff 8-22-00; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.27)
Saf-C
203.29 Standard of Proof. Unless otherwise specified by law, the
standard of proof shall be by a preponderance of the evidence. “Proof by preponderance of the evidence”
means a demonstration by admissible evidence that a fact or legal conclusion is
more probable than not to be true.
Source. #7349, eff 8-22-00; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.28)
Saf-C
203.30 Intervenors. If a person meets the criteria of RSA
541-A:32, that person shall be allowed to intervene in any action before a
hearings examiner.
Source. #7349, eff 8-22-00; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.29)
Saf-C
203.31 Computation of Time. In computing any period of time prescribed or
allowed by these rules, by order of court, or by applicable law, the day of the
act, event, or default after which the designated period of time begins to run
shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday, Sunday, or a
legal holiday, in which event the period shall extend until the end of the next
day that is not a Saturday, Sunday, or a legal holiday as specified in RSA 288,
as amended.
Source. #7349, eff 8-22-00; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.30)
Saf-C 203.32 Discovery.
(a) A hearings examiner shall permit discovery
upon a finding by a preponderance of the evidence that such discovery is
necessary for a fair hearing.
(b) In determining necessity that examiner shall
consider:
(1) The complexity of the issues involved;
(2) Other opportunities or information available
to discover the information sought; and
(3) Any other special or exceptional
circumstances that exist.
(c) Jus 811.01 through Jus 811.03 shall not be
applicable to department hearings.
Source. #7349, eff 8-22-00; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.31)
Saf-C 203.33 Format. Unless otherwise specified in department
rules, all requests, reports, and documents shall be submitted in a legible
form.
Source. #7349, eff 8-22-00; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.32)
Saf-C 203.34 Role
of Agency Staff in Enforcement Proceedings.
Agency personnel who have been designated by the commissioner or a
division director to request a hearing and present the division’s case shall
fully participate in the hearing. Other
agency staff shall have no role in the hearing unless called as a witness.
Source. #7349, eff 8-22-00; ss by #8230-A, eff 12-17-04 (formerly Saf-C
203.33)
Saf-C 203.35 Date
of Issuance or Filing.
(a) There shall be a
rebuttable presumption that the date on the notice of any document governed by
these rules was the date the document was issued by the department.
(b) There shall be a rebuttable presumption that
the date stamp on any document filed pursuant to these rules was the date it
was received by the department.
Source. #8230-A,
eff 12-17-04 (formerly Saf-C 203.34)
Saf-C 203.36 Waiver
of Procedural Rules. A hearing
examiner, upon the accepted motion of any interested person, shall waive any
procedural requirement or limitation imposed by this chapter upon reasonable
notice to affected persons when it appears that the proposed waiver or
suspension is lawful, and would be more likely to promote the fair, accurate
and efficient resolution of issues properly pending before the hearing examiner
than would adherence to particular procedural rules or requirements. A motion for waiver or suspension of a
procedural rule or order shall fully set forth the reasons for the requested
relief.
Source. #8230-A,
eff 12-17-04
Saf-C 203.37 Retention
Schedule. The department shall keep a
decision on file in its records for at least 5 years following the date of the
final decision or the date of the decision on any appeal, unless the director
of the division of records management and archives of the department of state
sets a different retention period pursuant to rules adopted under RSA 5:40.
Source. #8230-A,
eff 12-17-04
PART Saf-C 204
DRIVER LICENSE AND REGISTRATION ACTIONS
Saf-C
204.01 License Under Suspension or
Revocation.
(a) Upon receipt of evidence that a
(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
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 204.02 Physical,
Mental or Moral Impairment: Driver Re-Examination.
(a)
"Alcohol evaluation" for the purposes of this section, means
an evaluation conducted by a certified alcohol and drug abuse counselor or
licensed alcohol counselor to determine if a chemical dependency exists and if
the individual is at risk to recidivate.
(b)
An alcohol evaluation shall include, but not be limited to:
(1) The
reason for evaluation;
(2) A
mental status examination;
(3) A
psychosocial history, including:
a. A
family background;
b. Any
physical and emotional difficulties;
c. The
employment situation;
(4) An
arrest history;
(5) The
medical history;
(6) A
history of alcohol and/or drug usage, including:
a. The
age of onset;
b. The
duration;
c.
Consumption;
d.
Patterns of consumption and use;
e. Family
members usage; and
f. The
types of previous treatment and response;
(7) The
substance abuse treatment history;
(8) The
diagnostic test scores; and
(9)
Summary and recommendations, including the current risk of repeating an
alcohol or drug related offense.
(c)
"Driver examination" for the purposes of this section, means a
visual acuity screening, a road performance test, or a written examination, or
all 3, or any combination thereof, administered by the driver licensing section
of the division.
(d) “Driver re-examination” for the purposes
of this section means the requirements set forth in Saf-C 1009.
(e)
"Medical evaluation" for the purposes of this section means a
medical, psychiatric or psychological examination or any combination thereof.
(f)
A hearings examiner shall require a licensee or license applicant to
undergo an alcohol evaluation, a medical evaluation, a driver re-examination,
or any combination thereof upon receipt of information that the licensee or
applicant has a condition which might impair his or her driving ability.
(g)
Information shall be accepted from sources including, but not limited
to:
(1) The
licensee's or applicant's admission to impairment;
(2)
Accident reports;
(3) Law
enforcement officers;
(4)
Physicians;
(5)
Private complaints; and
(6)
Licensing officers.
(h)
If a medical or alcohol evaluation is required, the licensee or
applicant shall be responsible for the cost of such evaluation, and for
releasing and forwarding the results of such evaluation in written form to the
department.
(i)
Prior to requiring such medical evaluation, alcohol evaluation, or
driver re-examination, a hearings examiner shall afford the licensee the
opportunity for a hearing, except as provided in paragraph (k).
(j)
Upon receipt of the results of such alcohol or medical evaluation or
driver re-examination, the hearings examiner shall take administrative
action. The licensee shall be afforded
an opportunity for a hearing prior to any administrative action unless the
hearing examiner determines that action pursuant to (k) is applicable.
(k)
If the department receives information which substantiates that the
licensee is so physically, mentally or morally impaired that immediate harm to
the public could occur if the licensee retains his or her driver license or
operating privilege, the director shall immediately suspend the driver license
or operating privilege.
(l)
Such information referred to in (k) above shall include, but not be
limited to, reports:
(1) Of
chemical dependency, substance abuse, seizures or blackouts;
(2) That
the licensee has been adjudicated as incapacitated in accordance with the
provisions of RSA 464-A:1, et seq.;
(3) That
the licensee is suffering from a mental illness as defined in RSA 135-C:2, X,
and the rules adopted therefrom, or is severely mentally disabled as defined in
RSA 135-C:2, XV, and the rules adopted therefrom;
(4) That
the licensee has been involuntarily committed to a psychiatric facility; or
(5) That
the licensee has been convicted of a crime involving moral turpitude.
(m)
Nothing contained herein shall prohibit the commissioner from requiring
proof of financial responsibility pursuant to RSA 264:2 and Saf-C 207.05.
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
203.02); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05 ; ss by #8230-B,
eff 12-17-04
Saf-C 204.03 Original License Suspension or Revocation:
Probationary License Suspension.
(a)
Every first license issued shall be deemed an original license. It shall be issued subject to the conditions
set forth in the following paragraphs.
(b)
Unless extenuating circumstances exist, a hearings examiner shall, after
the hearing, suspend an original license and require the filing of proof of
financial responsibility pursuant to RSA 264:2 and Saf-C 207.05 upon receipt of
evidence of:
(1)
Misconduct in the driving of a vehicle, as alleged in a written
complaint from a law enforcement officer whereby the conduct poses a hazard to
the public's safety;
(2)
Misuse or abuse of driving privileges as alleged in a written complaint
from a law enforcement officer; or
(3)
Having 3 or more at fault accidents within the term of the original
license.
(c)
Extenuating circumstances, for the purposes of (b) above, shall include,
but not be limited to the following:
(1) The
maturity of the licensee;
(2) The
impact a suspension would have on the licensee’s education or employment;
(3) The
length of time the licensee has held an original license without prior motor
vehicle convictions;
(4) The
licensee’s lack of prior motor vehicle convictions; and
(5) The
licensee does not present as a hazard to public safety;
(d)
Pursuant to RSA 263:14-a, any license issued subsequent to a conviction
for reckless operation or driving while intoxicated shall be deemed to be
probationary for 3 years from the date issued.
(e)
Any driver under 21 years of age convicted for illegal possession of
alcoholic beverages pursuant to RSA 179:10 shall only be eligible to hold a
probationary license until 21 years of age.
The convictions shall be noted on the individual's motor vehicle record.
(f)
A probationary license holder shall not drive or attempt to drive a
vehicle upon a way while under the influence of a controlled drug or
intoxicating liquor if his blood alcohol content is 3/100 percent or greater.
(g)
A probationary license holder who refuses a blood alcohol content test
of the officer's choosing shall have his driver's license administratively
suspended for 90 days, and:
(1) The
division shall notify the person in writing by first class mail of the suspension
which shall become effective 30 days from the date of notification;
(2) The
person may request a hearing by submitting a written request to the bureau of
hearings within 30 days from the effective date of the suspension;
(3) A
request, pursuant to (2) above, shall not delay, postpone or otherwise
interrupt the suspension;
(4) If a
request pursuant to (2) above is made, a hearing shall be scheduled within 15
days of receipt of the request;
(5) The
law enforcement officer who filed the report shall be notified of the hearing;
(6) If
the law enforcement officer fails to appear at the hearing, or appears at the
hearing and fails to produce relevant evidence, the case shall be dismissed;
and
(7) The
hearings examiner's decision shall be forwarded to the individual, or his legal
counsel, within 15 working days after the conclusion of the hearing.
(h)
The department shall suspend the driver's license of a probationary
license holder who submits to an alcohol concentration test and the results are
3/100 percent or more. The licensee shall be suspended for 90 days for a first
probationary license offense and 180 days for a subsequent probationary license
offense.
(i)
In the case of (f) above the following shall apply:
(1) The
division shall notify the person in writing by first class mail of the
suspension which shall become effective 30 days from the date of notification;
(2) The
person shall be afforded a hearing by submitting a written request to the
bureau of hearings within 30 days of the effective date of the suspension;
(3) A
request, pursuant to (2) above, shall not delay postpone or otherwise interrupt
the suspension;
(4) If a
request pursuant to (2) above is made, a hearing shall be scheduled within 15
days of receipt of the request;
(5) The
law enforcement officer who filed the report shall be notified of the hearing;
(6) If
the law enforcement officer fails to appear at the hearing, or appears at the
hearing and fails to produce relevant evidence, the case shall be dismissed;
and
(7) The
hearing examiner's decision shall be forwarded to the individual, or his legal
counsel, within 15 working days after the conclusion of the hearing.
(j)
The scope of the hearing shall be limited to whether:
(1) The
person held a probationary license at the time of the offense; and
(2) The
person refused a blood alcohol content test as specified in (e); or
(3) The
person took a blood alcohol content test which showed a result of 3/100 percent
or more as specified in (f).
(k)
A request for a hearing received more than 30 days from the effective
date of the suspension shall be denied as untimely.
(l)
Pursuant to RSA 263:14-a, II, the penalties prescribed in paragraphs (e)
and (f), shall not run concurrently with any other penalties imposed by the
court.
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 203.03); amd by #7349, eff 8-22-00; amd by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C 204.04 Original License Suspension: Drivers Under Age 20.
(a)
For the purposes of this section, “conviction” is defined as and
includes a violation of any motor vehicle offense, whether it occurred in
(b)
Pursuant to RSA 263:14 and for the purpose of this section,
"offense" shall include proof of a conviction of any motor vehicle
violation excluding a conviction of RSA 261:40, RSA 261:59 or RSA 266:5.
(c)
Pursuant to RSA 263:14 and for the purpose of this section,
"original license" means any driver license issued under title XXI to
a person under the age of 20.
(d)
Upon learning that an original license holder under the age of 20 has
been convicted of an offense, the director or his/her agent shall suspend the
original license as specified in this rule. In addition to a suspension of the
original license, the director or his or her agent shall require that proof of
liability insurance in the form of an SR-22 certificate be filed when an
original license holder has 2 or more speeding convictions based upon
violations that occurred within 2 years from the date the license was issued.
(e)
An original license holder shall be given an opportunity for a hearing
before the director or his/her agent suspends the original license.
(f)
The division shall notify the driver of a date, location, and time where
the driver may appear to show just cause why his/her license should not be
suspended.
(g)
Just cause pursuant to (f) above shall be that:
(1) The
driver was 20 years or older at the time of the violation;
(2) The
driver was not convicted of the violation;
(3) The
driver did not hold an original
(4) There
are extenuating or mitigating circumstances that the hearings examiner should
consider.
(h)
The scope of the original license suspension hearing shall be limited
to:
(1)
Whether the driver was under the age of 20 on the date of the violation;
(2)
Whether the driver held an original
(3) Whether
the driver was convicted of a violation listed in (a) above; and
(4)
Whether the driver presented compelling evidence of extenuating or
mitigating circumstances.
(i)
Extenuating or mitigating circumstances pursuant to (g) and (h) above
shall include:
(1) The
impact a suspension would have on the driver's education or employment;
(2) The
length of time the driver has held an original license without prior motor
vehicle violations;
(3) The
driver's lack of prior motor vehicle convictions; and
(4) The
lack of seriousness of the violation for which the driver has been convicted.
(j)
Failure to appear as provided in (f) above shall waive the driver's
right to a hearing and result in suspension periods as specified in (k) below
unless exigent circumstances as defined in Saf-C 203.05(b), apply.
(k)
The following suspension periods shall apply to original licenses:
(1) For
the first conviction, 20 days;
(2) For
the second conviction, 45 days; and
(3) For
the third or subsequent conviction, 90 days.
(l)
The suspension periods listed in (k) above, shall be in addition to any
other penalty or remedy prescribed by statute or rule. If an additional suspension period is provided
for by statute or rule, the original license suspension period shall not run
concurrently.
(m)
If a person fails to return his/her original license to the department
by the date specified in the pending suspension notice or as instructed by the
hearings examiner a day shall be added to the suspension period specified in
(k) above for every day that the department does not receive the license.
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 203.04); 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 204.031)
Saf-C
204.05 Parent or Guardian
Authorization Certificate.
(a) If the department receives written
information which indicates the death of a signatory of a "parent or
guardian authorization certificate," form DSMV 38 as set forth in Saf-C
1002.04, the reviewing hearings examiner or financial responsibility administrator
shall suspend the named minor's license and registration, if any.
(b) If the signatory of a "parent or
guardian authorization certificate" withdraws such consent, the reviewing
hearings examiner or financial responsibility administrator shall suspend the
named minor's license and registration, if any.
Such withdrawal of consent shall be in written form.
(c) The withdrawal of consent, pursuant to (b)
above, shall include:
(1) The withdrawal of consent;
(2) The name of the parent or guardian; and
(3) The name of the minor.
(d) Suspension under this section shall remain in
effect until:
(1) The named minor attains the age of 18;
(2) A new "parent or guardian authorization
certificate" is received;
(3) Proof of insurance in the form of an SR-22
certificate covering the named minor is received; or
(4) The person under 18 years of age is
emancipated by marriage.
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
203.05); 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 204.04)
Saf-C
204.06 Revocation: Third Offense.
(a) Upon receipt of a driver's record which
reflects a third or subsequent conviction of a violation of title XXI in the
same calendar year, the hearings examiner shall review such record to determine
whether the license will be revoked.
(b) Subsequent to such review, the hearings
examiner shall:
(1) Defer action if more information through
investigation is needed to proceed with any administrative action; or
(2) Schedule a hearing if the record indicates
there is basis for administrative action; or
(3) Take no administrative action based upon the
results of the investigation and recommendation of the investigation.
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 203.06); amd by #7349, eff 8-22-00; amd by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss and moved by #8230-B, eff 12-17-04 (formerly
Saf-C 204.05)
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
204.08 Suspension by Justice for
Cause. Pursuant to RSA 263:57,
whenever the department receives an abstract of conviction from a municipal,
district or superior court suspending a license or operating privilege for up
to 30 days, the financial responsibility administrator shall notify the
individual by first class mail of the suspension and administrative
requirements for restoration.
Restoration shall take effect at the conclusion of the suspension period
imposed by the court provided all administrative requirements have been met
and, further provided, there are no other suspensions and/or revocations in
effect.
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 #5377, eff 4-21-92;
amd by #6249, INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by #6337,
eff 9-25-96 (from Saf-C 203.08); 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 204.07)
Saf-C
204.09 Flagrant Cases.
(a) If a court or justice recommends the
suspension or revocation of a license or operating privilege or certificate of
registration on an abstract of conviction for a period longer than 30 days
pursuant to RSA 263:61, the financial responsibility administrator shall
immediately notify the bureau of hearings.
The bureau of hearings shall notify the person of a hearing or
opportunity to be heard.
(b) The scope of any such hearing shall be:
(1) A review of the court's abstract of conviction;
(2) Any additional information provided by the
court or justice;
(3) A review of the person's motor vehicle record
on file with the director; and
(4) Information received in the hearing.
(c) If the bureau of hearings concurs with the
court's recommendation, pursuant to Saf-C 204.09(a), the person shall be
notified in writing. The notice shall
include a brief explanation of the suspension or revocation and the restoration
process.
(d) Restoration shall be effectuated at the
conclusion of the sanction period imposed by the bureau of hearings, provided
all administrative requirements have been met and further provided, there are
no other suspensions and/or revocations in effect.
Source. #6337, eff 9-25-96 (from Saf-C 203.09); 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 204.08)
Saf-C
204.10 Transporting Alcoholic
Beverages.
(a) Upon receipt of evidence alleging a violation
of RSA 265-A:45, a hearing shall be scheduled and the person notified in
accordance with these rules.
(b) The scope of such hearing shall be limited to
the following issues:
(1) Whether the person is the individual identified
on the complaint;
(2) Whether the person was under the age
prescribed by RSA 265-A:45 at the time of the alleged violation;
(3) Whether the person was driving a motor
vehicle upon a way;
(4) Whether the person was accompanied by a parent
or legal guardian or legal age spouse;
(5) Whether liquor or alcoholic beverage was
present in any part of the vehicle; and
(6) Whether the person falls within the exemption
pursuant to RSA 179:23.
(c) If the hearings examiner finds that the provisions
of paragraph (b) have been met, the hearings examiner shall suspend the license
or deny the person's privilege to drive for a period not to exceed the maximum
penalty prescribed by law.
Source. #6337, eff 9-25-96 (from Saf-C 203.10; 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 204.09)
Saf-C
204.11 RSA 263:96, Commercial Driver
License Hearing.
(a) "Timely receipt", for the purposes
of this section, means the report is initially received by the department
within 30 days of the alleged refusal.
(b) Upon timely receipt of the report required by
RSA 263:96,IV, the financial responsibility administrator or a hearings
examiner shall review the document to ensure the basic elements required by law
have been met.
(c) Provided the report conforms to statute, the
department shall forward a notice of action to the person advising him/her of the
department's intention to revoke the commercial driver license or privileges
for one year, or a minimum of 10 years, effective 10 days subsequent to the
issuance of the notice. However, should
the person already be under suspension/revocation or committed the alleged
infraction without a commercial driver license, this sanction shall be
effective immediately.
(d) For the purposes of determining a one year or
10 year minimum revocation, the following shall apply:
(1) If a person has no prior refusals or test
results under this section within a 10 year period prior to the most recent
violation, the commercial driver license or operating privileges shall be
revoked for one year; and
(2) If a person has a prior refusal or test
results under this section, within a 10 year period prior to the most recent
violation, the commercial driver license or operating privilege shall be
revoked for a minimum of 10 years.
(e) If the report indicates test results of .04
blood alcohol content (bac) to less than .08 bac or the driver refused the
test, only the commercial driver license or privileges shall be affected. If there are no other suspensions/revocations
in effect, the person shall be immediately eligible for a noncommercial
operator's driver's license, pursuant to RSA 263:42, I.
(f) The person may request a hearing pursuant to
RSA 263:96 by submitting a written request to the bureau of hearings and
submitted and received by the bureau within 30 days from the date of notice. Such a request shall not delay, postpone or
otherwise interrupt the revocation.
(g) The law enforcement officer, who forwarded
the report required by RSA 263:96,IV, shall be notified of the date, time and
location of the hearing and shall be required to appear and produce relevant
evidence.
(h) If a report indicates test results of .04
blood alcohol content (bac) to less than .08 bac or the driver refused the
test, the scope of the hearing shall be as specified in RSA 265-A:31, except
that the provisions of RSA 263:96, IV shall be substituted for RSA 265-A:31,
II(d).
(i) If a report indicates test results greater
than (h), above, or if the report indicates that the driver was under age 21 at
the time of the offense and the test results were greater than .04 bac, the
scope of the hearing shall be as specified in RSA 265-A:31.
(j) If the suspension is upheld in (i), above,
the penalty shall be imposed as follows:
(1) The driver’s license shall be suspended as
specified in RSA 265-A:30, II(a) and (b); and
(2) The commercial driver’s license shall be
suspended as specified in RSA 263:96, III.
(k) The hearings examiner's order shall be
forwarded to the person concerned, or his legal counsel, within 15 calendar
days after conclusion of the hearing.
Source. #6337, eff 9-25-96 (formerly Saf-C 203.111);
amd by #7349, eff 8-22-00; amd by #8174, INTERIM, eff 9-25-04, EXPIRES:
3-24-05; ss by #8230-B, eff 12-17-04
Saf-C 204.12 Suspension of a
Source. #6337, eff 9-25-96; ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
204.13 Persons Hazardous to Public
Safety.
(a) The commissioner, upon receipt of information
that a person might be hazardous to public safety, shall issue an order
requiring the person to appear and show cause why his/her driver's license or
operating privilege should not be revoked or denied.
(b) A person who shall be subject to such an
order shall include, but is not limited to, one who:
(1) Has been driving to endanger the public;
(2) A law enforcement officer has reported for misconduct,
abuse or misuse of the person’s driving privileges;
(3) Has been convicted 2 or more times of driving
a motor vehicle while under the influence of intoxicating liquor or controlled
drugs, or any combination thereof; or
(4) Has an alcohol or drug problem that is not
under control.
(c) The commissioner shall presume that a person
with an alcohol or drug problem that is not under control, is a person
hazardous to the public safety.
(d) Nothing contained herein shall prevent the
department from conducting an investigation or requiring a driver examination,
alcohol evaluation, a medical examination or any combination thereof of such
person or requiring the filing of proof of financial responsibility pursuant to
RSA 264:2 and Saf-C 207.05.
(e) After notice and an opportunity for a
hearing, a hearings examiner shall suspend, revoke, or deny the driver's
license or driving privilege of any person whose past record of convictions,
accident involvement or other serious misbehavior would make the person a
hazard to him/herself or other highway users, or result in the person being
declared a habitual violator.
(f) Nothing contained in this section shall
prevent the commissioner from suspending the license or driving privilege of a
person prior to a hearing, whenever there is reason to believe that the person
is operating in such a manner so as to constitute a present danger to the
public or him/herself.
(g) In the case of a person whose license has
been suspended or revoked pursuant to RSA 263:56, I (d) by reason of physical
or mental impairment, the suspension or revocation shall be for an indefinite
period provided, however, the person may request a hearing once every year
thereafter for the purpose of reviewing the original order. Such a request shall be in writing. The person shall be required to produce
medical evidence clearly indicating his/her condition no longer renders him a
hazard.
(h) For the purposes of (g) above, the request
for a hearing shall contain:
(1) The individual's name, address and date of
birth; and
(2) A request for a hearing to be scheduled.
Source. #6337, eff 9-25-96 (from Saf-C 203.12); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
204.14 False Statements in Official
Proceedings.
(a) Where any licensee, testifying under oath or
affirmation in any hearing conducted by the commissioner, makes a false
statement, the licensee’s driver license or driving privilege shall be suspended
if such a statement is found to affect the course or outcome of the proceeding.
(b) Upon receipt of information that any person
has made a materially false statement in any proceeding, the commissioner shall
issue an order, pursuant to RSA 263:59, of suspension of a licensee’s driver’s
license or driving privilege and if applicable, order the license to be
delivered to the department. Upon written request, a licensee shall be granted
a hearing within 15 days of filing his or her request.
(c) The hearing shall be held before the
commissioner provided, however, that in no case shall the hearing be conducted
before the person who presided at the proceeding during which the alleged false
statement was made.
(d) The scope of the hearing shall be limited to
whether the respondent:
(1) Made a false statement;
(2) The false statement which s/he made was not
material;
(3) The false statement which s/he made was the
result of coercion by a person whom the respondent reasonably believed would cause
him/her harm; or
(4) The respondent believed the false statement
to be true.
(e) The commissioner shall continue the
suspension of the driver's license or driving privilege, or deny the pending
application for a driver's license, and as appropriate, rescind any
administrative action which was substantially affected by the false statement,
of any person found to have made a materially false statement which was not the
result of factors contained in (d)(2), (3) or (4) above.
(f) Where the license or driving privilege of any
person is already under suspension, revocation, or has been denied, the license
or driving privilege shall be suspended, revoked or denied for an additional
period of time.
(g) Notwithstanding the above provisions, where
any person has, in the course of the original hearing, retracted the false
material statement before it could substantially affect the outcome of the
proceeding, the person’s driver's license or driving privilege shall not be
suspended, revoked, or denied.
(h) Nothing contained in this rule shall prevent
the department from seeking criminal prosecution under RSA 641, of any person
making a false material statement in any official proceeding.
Source. #6337, eff 9-25-96 (from Saf-C 203.13); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C 204.15 Fraudulent Activities.
(a)
The commissioner shall, after notice and opportunity for a hearing,
suspend a driver's license or driving privileges, or permit upon receipt of
information indicating that any person has:
(1)
Fraudulently altered a driver's license or permit;
(2) Lent
his/her driver's license or permit to another person;
(3) Displayed,
possessed or represented as his/her own a driver's license or permit not issued
to him/her by the proper authority;
(4)
Displayed or possessed any fraudulently altered, fictitious, facsimile,
or simulated driver's license or permit;
(5) Photographed,
photostatted, duplicated or in any manner reproduced a driver's license or
permit in such a manner that it could be mistaken for a valid driver's license
or permit;
(6) Used
a false or fictitious name, age or address, or other false information in any
application, submitted to the department relative to a driver's license or
permit;
(7) Been
found in possession of more than one valid driver's license;
(8)
Applied for a temporary registration and/or plate contrary to RSA 261:57
or RSA 261:57-a; or
(9)
Produced or otherwise provided fraudulent documentation or evidence of
compliance with an order(s) of the department.
(b)
The commissioner shall, after notice and opportunity for a hearing,
suspend a non-driver's identification card if, pursuant to RSA 260:21, IX,
there is just cause to withdraw the non-driver identification. Just cause shall
include, offenses enumerated in (a) and any other action which contributes to
the improper receipt or display of a non-driver's identification card, contrary
to RSA 260:21.
(c)
Upon receipt of information indicating that any person has committed an
unsworn falsification, pursuant to RSA 260:10, the department shall, after
notice and opportunity for a hearing, suspend any or a combination of the
following:
(1) A
driver's license or privilege;
(2) A
permit;
(3) A
non-driver's identification card; and
(4) A
certificate of registration.
(d)
When determining what privileges are to be suspended under (c) above,
the hearings examiner shall determine the severity of the offense after
considering the following:
(1) Which
documents were obtained by the individual;
(2)
Whether the individual falsified information given to the department;
and
(3) Any
other evidence relevant to a violation of RSA 260:10.
(e)
The privileges to be suspended shall correlate positively with the
severity of the offense as determined in (d) above, and after considering any
mitigating circumstances.
(f)
For the purposes of (c) above, the hearings examiner in making the
determination what to suspend, shall not be limited to the privilege, license,
permit, card or certificate for which the person was making application for
when the person committed an unsworn falsification.
(g)
The commissioner shall suspend the registration of any vehicle, after
notice and opportunity for a hearing, on receipt of written information
indicating that any person to whom said registration is issued has:
(1)
Fraudulently altered the registration certificate, validation sticker or
plates, or inspection sticker;
(2) Lent
his or her registration plates or validation stickers to another person;
(3)
Affixed or allowed any other person to affix his or her registration
plate(s) or validation stickers to a vehicle other than that for which they
were issued;
(4)
Displayed any registration plate(s), validation stickers or
certificate(s) that were issued for a vehicle other than that which he or she
is driving;
(5)
Displayed any fictitious, facsimile, or simulated registration plate(s)
or certificate(s);
(6) Used
a false or fictitious name, date of birth, address, vehicle identification
number, or other false or fictitious information in any application, official
form, document or communication submitted to the department relative to vehicle
registration;
(7)
Displayed on said vehicle any forged or fraudulently altered inspection
sticker, any facsimile or copy of any inspection sticker, or any such sticker
which was fraudulently issued or was not issued by an official inspection
station; or
(8)
Applied for a temporary registration and/or plate in violation of law.
(h)
Notwithstanding any rule to the contrary, the commissioner or director
shall suspend a person's driver's license prior to a hearing, pursuant to RSA
263:59, if:
(1) The
person admits to making a material false statement in his or her application
for a driver's license; or
(2) The
department receives evidence that indicates the person made a materially false
statement in his or her application for a driver's license.
Source. #6337, eff 9-25-96 (from Saf-C 203.14); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05 ; ss by #8230-B, eff 12-17-04
Saf-C
204.16 Operation After Suspension or
Revocation.
(a) Upon receipt of information indicating that
any person has been convicted of driving a vehicle after suspension or
revocation of the driver's license, the commissioner shall, after notice and a
hearing, extend the period of such suspension(s) or revocation(s) in effect for
an additional period of the same duration, unless extenuating circumstances
exist such as, but not limited to:
(1) Failure to receive notice of suspension or
revocation; or
(2) Failure of an insurance company to act in a
timely manner.
Source. #6337, eff 9-25-96 (from Saf-C 203.15); amd
by #7349, eff 8-22-00; amd by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss
by #8230-B, eff 12-17-04
Saf-C
204.17 Refusal to Surrender Articles.
(a) The commissioner shall extend the period of
suspension or revocation of any registration, license, or permit in any case in
which a person fails or refuses to comply with an order to return any suspended
or revoked registration plates or certificate, license or permit to the
department unless extenuating circumstances exist. Extenuating circumstances
shall include but not be limited to failure to receive notice of suspension or
revocation, or failure of an insurance company to file proof of insurance in
the form of an SR-22 certificate in a timely manner.
(b) Parties aggrieved by this decision may submit
a written request to the department for a hearing.
(c) At a hearing pursuant to Saf-C 204.17 and
this section, the following shall apply:
(1) A person shall be deemed to have failed or
refused to comply with an order if the person does not mail or deliver the
suspended/revoked items to the department within 5 working days of the
effective date of any suspension or revocation; and
(2) The maximum additional period imposed under
this section shall be equal to the period of time during which any person fails
or refuses to return any suspended or revoked item to the department. Calculation of the maximum period shall
commence after the expiration of the 5 working day period set forth in (c)(1)
above.
Source. #6337, eff 9-25-96 (from Saf-C 203.16); ss by
#8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
204.18 Division Files.
(a) "The date of conviction", for the
purposes of this section, means:
(1) The date of the original conviction;
(2) Date of final conviction that resulted from
an appeal; and/or
(3) In the case of refusal to consent, the date
of the act of refusal.
(b) For the purpose of consideration of enhanced
penalties for driving while intoxicated convictions, pursuant to RSA 265-A:18,
prior refusal of consent to submit to testing for blood alcohol content,
pursuant to RSA 265-A:14, and administrative license suspension, RSA 265-A:30,
records older than 10 years shall not be considered by the department. Until
January 1, 2005, the department shall not consider implied consent activity,
administrative license suspensions and driving while intoxicated convictions
prior to January 1, 1995.
(c) Nothing in this section shall be construed as
preventing the department from maintaining records for a longer period of time
for use in consideration in hearings or determinations in areas other than
enhancement of sanctions, such as for persons hazardous to public safety under
Saf-C 204.13.
Source. #6337, eff 9-25-96 (from Saf-C 203.18); amd by
#7349, eff 8-22-00; amd by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by
#8230-B, eff 12-17-04
Saf-C
204.19 Suspension of Registration.
(a) The commissioner shall suspend the
registration and corresponding plates if there is evidence on file indicating
the vehicle's owner has:
(1) Allowed the vehicle to be driven in violation
of any provisions under title XXI;
(2) Made false statements on the registration
application; or
(3) Submitted a written request to the
commissioner or director asking that the registration certificate and plates be
suspended.
(b) Prior to suspending under (a)(1) or (2)
above, the owner shall be afforded an opportunity for a hearing.
(c) Notwithstanding (a)(1) and (2) above nothing
shall prohibit the commissioner from immediately suspending the registration
and plates, if there is evidence from law enforcement officer(s) indicating the
vehicle is an immediate hazard to public safety and is not capable of passing
inspection.
(d) Anyone aggrieved by the action taken pursuant
to (c) above shall be entitled to a hearing.
A hearing shall be scheduled within 15 days from receipt of the request.
Source. #6337, eff 9-25-96 (from Saf-C 203.19); amd
by #7349, eff 8-22-00; amd by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss
by #8230-B, eff 12-17-04
Saf-C
204.20 Alcohol Program Completion
Hearings.
(a)
Any person who attends an approved alcohol program as required by RSA
263:65-a, and is diagnosed during the final exit evaluation with substance
abuse, alcohol abuse, or alcohol dependence may request a hearing within 20
calendar days if s/he does not agree with the diagnosis and/or further
counseling requirements.
(b)
Hearings may be requested by writing to the department of safety, bureau
of hearings,
(c)
The bureau of hearings shall notify the person and the approved alcohol
program provider of the time, date, and location of the hearing.
(d)
There shall be a rebuttable presumption that the approved alcohol
program provider’s evaluation is correct if the approved alcohol program
provider complied with He-A 700, He-800, or He-900, as appropriate.
(e) Prior to hearing, the person may obtain
evidence to rebut the evaluation in (a), including:
(1) A second opinion from a state
licensed alcohol and/or drug abuse counselor as specified in He-A 707.16 or
He-A 907.15, at his/her own expense;
(2) Copies
of the second evaluation shall be given to the original approved alcohol
program provider before the hearing;
(3) Any
evidence showing that the approved alcohol program provider did not comply with
He-A 700, He-A 800 or He-A 900; and
(4) Any
other evidence that the person believes demonstrates that the
evaluation was incorrect.
(f)
If an alcohol evaluation was not performed during the 12-months
preceding the hearing, the person shall obtain a new evaluation from a state
certified alcohol and/or drug abuse counselor before the hearing.
(g)
The scope of the hearing shall be limited to whether:
(1) The
person has successfully completed an approved alcohol program;
(2) The
diagnosis is supported by the evidence and/or further counseling requirements
are appropriate;
(3) The
person has a medical or other condition that is not controlled and constitutes
a hazard to public safety; and
(4) The
person is eligible for license restoration.
(h)
Following hearing, the examiner shall:
(1) Sustain
the diagnosis and/or counseling requirements and order the person to complete
counseling as specified by the approved alcohol program provider prior to
restoration of his/her driving license or privilege; or
(2) In
cases where the person does not challenge the diagnosis, but does challenge the
counseling requirement, either:
a. Sustain the counseling as specified by the
alcohol program provider; or
b. Modify the counseling including the following
options, or any combination thereof:
1.
Recognized alcohol or drug abuse self-help groups;
2.
Outpatients with a state licensed alcohol and/or drug abuse counselor;
3.
Residential treatment facilities; and/or
4.
Counseling with a licensed psychologists who holds a certificate from
the American Psychological Association for the treatment of alcohol and other
psychoactive substance abuse disorders;
(i)
If a person believes that he or she has completed the counseling
requirements specified in the hearings examiner's decision issued under (i),
above, he or she may request in writing that the hearings examiner review the
file to determine whether the person has complied with the counseling
requirements.
(j)
Upon finding that the person complied with the hearings examiner’s
decision in (h), above, the hearings examiner shall issue a decision finding
compliance with RSA 263:65-a, II.
(k)
If the hearings examiner finds that a person has not complied with the
hearings examiner’s decision in (h), then the hearing examiner shall notify the
person in writing that:
(1) He or
she has an opportunity for a hearing to show how he or she has complied;
(2)
Requests shall be made in writing and addressed to the department of
safety, bureau of hearings, 33 Hazen Drive, Concord, NH 03305; and
(3) If no
hearing is requested, the person shall not be eligible for restoration until
such time as a hearing is requested and a hearings examiner finds compliance
with a decision issued under (h), above.
(l)
The scope of the hearing shall be limited to whether the person complied
with the hearings examiner’s decision under (h), above.
Source. #7349, eff 8-22-00; ss by #8230-B, eff
12-17-04
PART Saf-C
205 REISSUANCE OF LICENSE OR
REGISTRATION
Saf-C
205.01 Request for Restoration.
(a) Any person whose driver's license, privilege
to operate a motor vehicle, or motor vehicle registration has been revoked or
suspended, shall prior to seeking restoration, comply with the administrative
requirements contained in the disposition of their hearing. Restoration shall
not occur until evidence is on file documenting full compliance with all the
requirements outlined in the hearing.
(b) When any license has been suspended under RSA
263:56-a or when any suspension or revocation is for a period greater than 15
calendar days, said license shall not be restored until the fee specified in
RSA 263:42, V, has been paid.
(c) Pursuant to RSA 265-A:22, a person shall not
have his/her license restored until all his/her obligations resulting from
his/her arrest and conviction are met.
(d) No person shall have his/her license restored
if it is determined that there are other revocations or suspensions in effect
under any other statute or rule or regulation, including reciprocity agreements
and requirements.
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 204.01); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by
#8230-B, eff 12-17-04
Saf-C
205.02 Restoration: Reckless Driving. Any person whose driver's license or driving
privilege has been revoked pursuant to RSA 265:79, shall have such license or
privilege restored if the following conditions are met:
(a) The period of revocation imposed by the court
has expired;
(b) In a case involving reciprocity, the
revocation imposed by the department has expired;
(c) 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;
(d) There is no evidence of continued driving of
a motor vehicle in this state during the revocation period;
(e) A license application and fee are on file
with the division if the driver's license has expired or if the revokee is a
new resident;
(f) The fee, required pursuant to RSA 263:42, V,
has been paid;
(g) The person's record has been reviewed to
assure complete compliance with applicable statutes and rules;
(h) All court fines have been paid and defaults
cleared; and
(i) There are no other revocations or suspensions
in effect under any other statute or rule including reciprocity agreements and
requirements.
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 #5688, eff 8-20-93; amd by #6249, INTERIM, eff 6-16-96,
EXPIRES: 10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C 204.02); ss
by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
205.03 Restoration: Possession of
Drugs. Prior to such restoration,
the hearings examiner shall make further inquiry into the person's fitness to
drive if s/he has evidence that such person has a drug abuse problem which
might affect his/her ability to drive a motor vehicle safely.
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 204.03); ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
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-A:2 or 265-A:3, or RSA
263:65 for a out of state conviction 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 person 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
(4) The fee required by RSA 263:42, V, has been
paid;
(5) All court fines have been paid and defaults
cleared;
(6) The person’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.
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); ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05 ; ss by #8230-B, eff 12-17-04
Saf-C
205.05 Restoration to Persons Found
Not Guilty of Driving While Intoxicated.
Upon receipt of a court abstract indicating that the person has been
found not guilty in superior or district court, Saf-C 205.03 shall not apply
and such license or driving privilege revoked pursuant to RSA 265-A:2 or
265-A:3-a shall be restored provided there are no other active suspensions or
revocations in effect under any other statute or rule including reciprocity
agreements and requirements.
Source. #3170-a, 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 204.05); ss by #8174, INTERIM, eff
9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
205.06 Restoration: Implied Consent
or Administrative License Suspension.
(a) Any person whose license or privilege to
drive a motor vehicle in this state has been suspended pursuant to RSA 265-A:30
or 265-A:14, shall have such license or privilege restored upon compliance with
the requirements set forth in (b) below.
(b) Pursuant to (a) above, a person's license
shall be restored if:
(1) The period of the original suspension imposed
by the department has expired unless the original order was modified at the
hearing;
(2) Any license suspended by the department has been
physically surrendered or the respondent has notified the department that the
license was lost or stolen;
(3) The fee required pursuant to RSA 263:42, V,
has been paid;
(4) A review of the person's record discloses total
compliance with applicable statutes and rules; and
(5) There are no other revocations or suspensions
in effect under any other statute or rule including reciprocity agreements and
requirements.
Source. #3170, eff 12-31-85; #4451, eff 6-24-88; ss
by #4844, eff 6-20-90; amd by #5274, eff 11-20-91; amd by #5688, eff 8-20-93;
amd by #6068, eff 7-28-95; amd by #6249, INTERIM, eff 6-16-96, EXPIRES:
10-14-96; ss and moved by #6337, eff 9-25-96 (from Saf-C 204.06); ss by #8174,
INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C 205.07 Denial of Restoration in Certain Cases:
Implied Consent or Administrative License Suspension.
(a) Saf-C 205.05 notwithstanding, a hearing
examiner shall deny restoration of a license or driving privilege revoked
pursuant to RSA 265-A:30 or RSA 265-A:14, if:
(1) Any court, department, division or
administrative action has imposed an additional revocation of license or
driving privileges;
(2) The person has failed to comply with
financial responsibility requirements; or
(3) Physical, mental or moral impairment exists
that could result in immediate harm to the public should the person's license
be restored.
(b) In a case as prescribed by (a)(1) above, the
revocation shall run consecutively with the revocation issued pursuant to RSA
265-A:14. Under no circumstances shall said revocations run concurrently.
Source. #4451, eff 6-24-88; ss by #4844, eff 6-20-90;
ss by #5687, eff 8-20-93; amd by #5688, eff 8-20-93; ss and moved by #6337, eff
9-25-96 (from Saf-C 204.07); ss by #8174, INTERIM, eff 9-25-04, EXPIRES:
3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
205.08 Restoration or Reapplication:
Medical Evidence.
(a) In the event that a person's license or
driving privilege has been suspended or revoked, or an application denied due
to a medical condition, the following shall be required from such person prior
to restoring said license or privilege:
(1) A current statement of case history;
(2) A current medical evaluation by the treating
physician covering:
a. Diagnosis;
b. Treatment;
c. Prognosis;
d. Relationship to the patient's driving
ability; and
e. Evidence the person
has been symptom-free, for a minimum of 12 months, of the medical condition
which led to the existing license or driving privilege suspension; and
(3) Any other relevant evidence as to the medical
condition of the applicant which relates to his ability to drive a motor
vehicle.
(b)
In lieu of the medical evaluation pursuant to (a)(2) above, a person may
submit a medical evaluation stating there is no evidence of reoccurrence of the
condition which led to the existing medical suspension and that any treatment
program, including medication, does not render the person a hazard to public
safety or incapable of safe operation of a vehicle.
Source. #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 204.08); ss by #8174, INTERIM, eff 9-25-04, EXPIRES:
3-24-05; ss by #8230-B, eff 12-17-04
PART Saf-C 206
HABITUAL OFFENDERS
Saf-C
206.01 Hearing Order.
(a) Upon receipt of evidence that any person
might qualify as an habitual offender within the meaning of RSA 259:39, the
commissioner shall issue an order requiring that person to appear for a hearing
to show cause why he should not be barred from driving a motor vehicle on the
ways of this state.
(b) The order shall be issued to the appropriate
law enforcement officer for service on the person.
(c) The order shall incorporate a certified
transcript or abstract of the person's driver record report.
(d)
The order shall be accompanied by form
DSBH 14 so the law enforcement officer or agency can document and return to the
commissioner the service of process.
(e) The law enforcement officer serving the order
shall submit the following on DSBH 14:
(1) The name of the county where service was
made;
(2) The date of the service;
(3) The time of the service;
(4) The signature of the law enforcement officer;
(5) The name of the law enforcement agency; and
(6) The signature of the individual served in
hand, or if the person refuses to sign, a notation of same by the law
enforcement officer.
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 #5688, eff 8-20-93;
amd by #6249, INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by #6337,
eff 9-25-96 (from Saf-C 205.01); ss by #8174, INTERIM, eff 9-25-04, EXPIRES:
3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
206.02 Scope of Hearing.
(a) The scope of an habitual offender hearing
shall be limited to a review of the convictions which shall be used as the
basis for finding a person to be an habitual offender.
(b) In the event the commissioner finds there are
sufficient convictions to satisfy RSA 259:39, the convictions are valid, and
that the person is the same person named in the transcript, the commissioner
shall certify the person to be an habitual offender.
(c) If a person is convicted under the laws of
another state, of an offense specified in RSA 262:19, V, the conviction shall
be used for the purpose of certifying an habitual offender.
(d) Pursuant to RSA 259:39, after a conviction
for an offense listed in either RSA 259:39, I or in RSA 259:39, II, and within
a 5 year period, a person who has a subsequent single incident resulting in 2
or more convictions of an offense under the same paragraph as the initial
conviction, each such subsequent conviction shall be counted separately for the
purposes of certifying the individual as an habitual offender.
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 #5688, eff
8-20-93; amd by #6249, INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by
#6337, eff 9-25-96 (from Saf-C 205.02); ss by #8174, INTERIM, eff 9-25-04,
EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C 206.03 Burden of Proof. If the person shall deny any of the facts
stated in the transcript or abstract, or deny, in the case of a conviction for
a misdemeanor, that he/she was represented by counsel or that there was an
appropriate waiver of counsel and acknowledgment of rights documented in the
court, then the person shall have the burden of proving that such is untrue.
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 #5688, eff
8-20-93; amd by #6249, INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by
#6337, eff 9-25-96 (from Saf-C 205.03); ss by #8174, INTERIM, eff 9-25-04,
EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
206.04 Commissioner Ordered
Prohibition.
(a) If, as a result of the hearing, the
commissioner finds a person to be an habitual offender, the commissioner shall
cause notice to be served in hand.
(b) The notice in (a) above shall:
(1) Order the person not to drive on the ways of
this state until such privilege is restored in writing:
(2) Advise the person that the penalty of driving
after being declared an habitual offender is a one to 5 year term of
imprisonment;
(3) Indicate the period of time that the habitual
offender's license shall be revoked and
(4) Indicate conditions of probation as
authorized pursuant to Saf-C 203.11.
(c)
The department shall cause all licenses and permits to drive a motor
vehicle on the ways of this state, held by such person, to be surrendered.
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 #5688, eff
8-20-93; amd by #6249, INTERIM, eff 6-16-96, EXPIRES: 10-14-96; ss and moved by
#6337, eff 9-25-96 (from Saf-C 205.04); ss by #8174, INTERIM, eff 9-25-04,
EXPIRES: 3-24-05; ss by #8230-B, eff 12-17-04
Saf-C
206.05 Default Judgment.
(a) Failure of the person named in the order to
appear for the hearing shall result in a default judgment certifying the person
to be an habitual offender if the commissioner determines that:
(1) The convictions contained in the transcript
or abstract are valid and are of sufficient numbers to qualify the person as an
habitual offender; and
(2) The person named in the order was properly
served pursuant to Saf-C 206.01.
(b) The commissioner shall not be required to
further contact the person provided the evidence clearly indicates s/he was
properly served.
(c) Defaults shall be recorded as follows:
(1) The effective date of revocation and
certification as a habitual offender shall be the date of hearing wherein the
respondent failed to appear; and
(2) The notice sent date shall be the date of original
service on the respondent.
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 205.05); ss by #8174, INTERIM, eff 9-25-04, EXPIRES: 3-24-05; ss by
#8230-B, eff 12-17-04
Saf-C
206.06 The Habitual Offender
Decertification Process and Restoration of License.
(a) The habitual offender certification shall
remain in effect until the habitual offender is decertified.
(b) When the original period of certification has
expired, if the habitual offender wishes to be decertified, the habitual
offender shall submit a written statement requesting a decertification hearing
or a decertification record review.
(c) The written request, referred to in (b)
above, shall include:
(1) The habitual offender's full name;
(2) The habitual offender's address; and
(3) The habitual offender's date of birth.
(d) The department shall schedule a review
hearing within 30 days from the date of receipt of the written request, so long
as:
(1) The written request meets the provisions of
(c) above;
(2) The habitual offender has been free from
incarceration for at least 6 months for a motor vehicle offense;
(3) The habitual offender has complied with all
the terms and conditions of the certification order; and