0287-hb 0713

AN ACT relative to ignition interlock systems for certain DWI offenders and increasing the penalty for reckless driving.

This bill establishes an alcohol ignition interlock program for certain DWI offenders.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to ignition interlock systems for certain DWI offenders and increasing the penalty for reckless driving.

Be it Enacted by the Senate and House of Representatives in General Court convened:

287:1 New Sections; Definition of Ignition Interlock Device and Provider. Amend RSA 259 by inserting after section 43 the following new sections:

259:43-a Ignition Interlock Device. "Ignition interlock device" shall mean breath alcohol ignition interlock device, which is a system or device that connects a breath analyzer to a motor vehicle's ignition system. The analyzer measures the concentration of alcohol in the breath of any person who attempts to start the motor vehicle by using the ignition system. The device prevents the vehicle from starting unless the person provides a breath sample with a concentration of alcohol that is below a preset level. The device contains a data-logger which retains records of failures to take or pass the test during the period between recalibrations.

259:43-b Interlock Service Provider. An approved interlock service provider means an entity that installs, services, calibrates, monitors, and provides reports as required by RSA 265:82-e, VI(c) who is approved by the commissioner of the department of safety to do so; no person shall provide any of the services of an approved interlock service provider without such prior approval.

287:2 New Subdivision; Alcohol Ignition Interlock Program. Amend RSA 265 by inserting after section 82-d the following new subdivision:

I. Any person whose license or permission to drive has been revoked or suspended for an aggravated DWI offense under RSA 265:82-b, I(b), I(c), or a subsequent DWI offense under RSA 265:82-b, II may be required by the court after the period of revocation or suspension to install an ignition interlock device as defined in RSA 259:43-a in any vehicle registered to that person or used by that person on a regular basis, for not less than 6 months nor more than 2 years. Installation and monitoring costs shall be paid by the offender. A certificate proving installation of the device shall be provided to the division of motor vehicles as a condition precedent to reinstatement of the individual's license to drive, and the division may mark the person's license accordingly.

II. Nothing in this section shall prohibit a court of competent jurisdiction from requiring the installation of an ignition interlock device for any person convicted of a violation of RSA 265:82, where the conviction is not based upon a complaint which alleges prior convictions as provided in RSA 265:82-b, II, but the person is found to have had one or more such prior convictions in this state or in an out-of-state jurisdiction.

III. Any person under the age of 21 whose license or permission to drive has been revoked or suspended under RSA 265:82-b may be required by the court after the period of revocation or suspension to install an ignition interlock device as defined in RSA 259:43-a in any vehicle registered to that person or used by that person on a regular basis, until the age of 21 or for not less than 12 months, whichever is longer.

IV. An ignition interlock device may not be sold or distributed in this state without the device being approved by the commissioner or the department of safety.

V. The department of safety shall establish rules, pursuant to RSA 541-A, for the approval of ignition interlock devices and for the licensing of approved interlock service providers.

VI. The commissioner shall adopt rules and regulations to create an ignition interlock program that will control the delivery of interlock service in this state under this subdivision. The rules adopted for the licensing of approved interlock service providers shall require that each provider, at a minimum:

(a) Provide recalibration of each device monthly, unless otherwise ordered by the court;

(b) Maintain at least that number of locations across the state for the installation, service, calibration, and monitoring of an ignition interlock device as might be required from time to time by the program operating protocol developed by the commissioner;

(c) Provide periodic reports as determined by the court or in department rules, to the probation office and treatment provider, if applicable; if the offender is not placed on probation, to the arresting agency and the court of jurisdiction;

(d) Retain all data-logger records for 12 months after the end of the period to which the offender is sentenced;

(e) Provide installation and service to those offenders determined by the court to be unable to pay the full cost of an interlock program by reserving for this purpose a hardship credit equal to 2 percent of the service provider's gross receipts, excluding the purchase or rental cost of the interlock device, which credit and free service shall be reported annually to the department; and

(f) Provide a certificate of installation to the vehicle's owner upon installation of the device in a form to be determined by the department's interlock rules.

I. Any person required by the court to drive only a motor vehicle equipped with an ignition interlock device shall not drive any motor vehicle not equipped with this device.

II. A person shall not tamper with, or in any way attempt to circumvent the operation of an ignition interlock device that has been installed in a motor vehicle.

III. A person shall not start or attempt to start a motor vehicle equipped with an ignition interlock device for the purpose of providing an operable motor vehicle to a person who is restricted by law to drive only a motor vehicle so equipped. The provisions of this section do not apply if the starting of a motor vehicle, or the request to start a motor vehicle equipped with an ignition interlock device, is done for the purpose of safety or mechanical repair of the device or the vehicle, and the person subject to the court order does not drive the vehicle.

IV. A person shall not knowingly provide a motor vehicle not equipped with a functioning ignition interlock device to another person whom the provider of the vehicle knows was sentenced to drive only a motor vehicle equipped with an ignition interlock device.

V. Any person who violates the provisions of this section shall be guilty of a misdemeanor.

I. Upon written notice, by affidavit, that any person has violated an order of the court with regard to the installation of an ignition interlock device after the period of revocation or suspension imposed in RSA 265:82-b, 265:79, or 630:3, a hearing shall be scheduled within 14 business days of the notice. Pending the hearing and upon a finding of probable cause that a violation has occurred based upon the affidavit, the court shall immediately suspend the defendant's privilege to drive a motor vehicle. After the hearing and upon a finding of violation by a preponderance of the evidence, the privilege to drive shall not be restored until the court is satisfied that the person is in compliance with its order.

II. If it is found that a person required to drive a motor vehicle equipped with an ignition interlock device has failed to comply with any requirement for the maintenance or calibration of the device, or shows a consistent pattern of failures to pass the breath test provided by the device, the court may order a hearing to determine if the person should be held in contempt of court. Upon a finding of contempt, the court may sentence the defendant to up to 6 months in a county department of corrections facility, may make such other orders as necessary to bring about compliance, and may order a further license suspension or revocation for a period of not more than 12 months. The period of suspension or revocation under this section shall be added to any previously ordered suspension or revocation.

265:79 Reckless Driving; Minimum Penalty. Whoever upon any way drives a vehicle recklessly, or so that the lives or safety of the public shall be endangered, or upon a bet, wager or race, or who drives a vehicle for the purpose of making a record, and thereby violates any of the provisions of this title or any rules adopted by the director, shall be, notwithstanding the provisions of title LXII, fined not less than $250 nor more than [$~~500~~] $1,000 and his or her license shall be revoked for a period of 60 days for the first offense and from 60 days to one year for the second offense.

287:4 Negligent Homicide. RSA 630:3, III is repealed and reenacted to read as follows:

III. In addition to any other penalty imposed, if the death of another person resulted from the negligent driving of a motor vehicle, the court may revoke the license or driving privilege of the convicted person for up to 7 years. In cases where the person is convicted under paragraph II, the court shall revoke the license or driving privilege of the convicted person indefinitely and the person shall not petition for eligibility to reapply for a driver's license for at least 7 years. In a case in which alcohol was involved, the court may also require that the convicted person shall not have a license to drive reinstated until after the division of motor vehicles receives certification of installation of an ignition interlock device as described in RSA 265:82-e, which shall remain in place for a period not to exceed 5 years.

I. RSA 265:82-e, III as inserted by section 2 of this act shall take effect January 1, 2004.

(Effective Date: I. RSA 265:82-e, III as inserted by section 2 shall take effect January 1, 2004.

The Administrative Office of the Courts (AOC), Judicial Council and Department of Safety stated this bill may increase state and county expenditures by an indeterminable amount in FY 2000 and each year thereafter. There will be no fiscal impact on local expenditures or state, county and local revenue.

The AOC states it is not anticipated this legislation revising penalties for repeat DWI offenders will have a large fiscal impact on the Judicial Branch. To the extent this bill prescribes contempt of court as a remedy for a defendant's failure to abide by a sentence in a DWI case, there will be additional contempt hearings and additional court costs. There is no reasonable way to determine the number of such charges that will be brought.

The Judicial Council is unable to predict the actual number of occurrences of this charge which may result, thus no actual cost can be determined. However, due to the penalty sections which add a potential for contempt of court and 30 days incarceration at a county house of corrections, it will have an impact on indigent defense costs. It is likely the case will be handled by either the public defender or contract attorney, either of whom would be paid the contract rate of $220. If the case is handled by an assigned counsel attorney, the rate would be $60 per hour. Classification is unclear, so a cap cannot be determined. Costs for "services other than counsel" also cannot be determined.

The Department of Safety cannot estimate the number of persons who might become repeat DWI offenders and/or the number of individuals who may be convicted of offenses involving only controlled drugs, and thus subject to the penalties in this bill, therefor the Department is unable to estimate the fiscal impact. In the case of an individual convicted of an offense involving alcohol, the individual is required to pay for the costs of the ignition interlock system.