HB 1391

This bill establishes an administrative procedure for contested minor traffic violations that are currently heard in district court.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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

1 New Paragraph; Words and Phrases Defined; Conviction. Amend RSA 259:14 by inserting after paragraph II the following new paragraph:

III. Unless otherwise provided, a finding of guilt in a court or in an administrative proceeding.

2 Waiver in Lieu of Court Appearance; Not Guilty Plea. Amend RSA 262:44, II to read as follows:

II. If the defendant wishes to enter a not guilty plea, [he] the defendant shall enter such plea on the summons and return it to the division of motor vehicles within 30 days of the date of the summons. The division shall [~~transmit the plea to the appropriate court and the court shall~~] schedule [~~a trial~~] an administrative hearing. [~~Upon the conclusion of the trial, the court shall transmit the result of the trial to the division for division records.~~]

3 New Subdivision; Administrative Hearings. Amend RSA 262 by inserting after section 44 the following new subdivision:

I.(a) Any person who may enter a plea by mail pursuant to RSA 262:44 may request an administrative hearing. A request for administrative hearing received by the department after 30 days from the date the notice is issued shall be denied as untimely.

(b) The request shall indicate whether or not the person desires to have the law enforcement officer present. The hearing shall be held within 20 days after the filing of the request unless the person requests a continuance. The hearing shall be recorded, and be conducted by the department's designated agent. The hearing may be conducted upon a review of the law enforcement officer's report if there is no request to have the officer present. If there is a request that the law enforcement officer be present at the hearing and the officer fails to appear without good cause shown, the case shall be dismissed. If the person requesting the hearing fails to appear without good cause shown, the right to a hearing shall be waived, and a finding may be entered based upon a review of the law enforcement officer's evidence or report.

II. The hearing examiner shall issue his or her finding within 15 days of the hearing date. The finding shall be in writing and a copy shall be provided to the parties. The finding shall be final unless a review or appeal is filed under RSA 262:46 or RSA 262:47.

262:46 Review. Within 10 days following the examiner's finding, a person found guilty, or the law enforcement officer, may petition the director for a review of the finding. The review shall determine whether the finding is erroneous as a matter of law or cannot be sustained by the facts as presented at the hearing. After a review of the finding, the director shall issue within 10 days a finding either affirming the finding or granting a new hearing. Any grant of a new hearing shall be accompanied by a written explanation setting forth the specific error of law or the reason why the ruling cannot be sustained by the facts.

I. If the finding of guilt is entered after a hearing as provided in RSA 262:45, a person shall have the right to file a petition in the superior court in the county in which the violation was alleged to have occurred to review the final order by the director or the director's authorized agent within 30 days of the date of the finding. Jurisdiction to hear such appeals is vested in the superior court.

II. At the earliest practical time, the court shall review the record as developed before the director or authorized agent, together with any written legal argument presented to the court. Based on that review, the court may affirm or reverse the decision of the director or agent or order that oral argument be held. As justice may require, the court may remand the case to the director or authorized agent for further findings or rulings. In no event shall the oral argument be held less than 14 days after notice has been provided to the director. The petition for appeal shall set forth all the grounds upon which the final order is sought to be overturned. Issues not raised by the appellant before the director or agent shall not be raised before the superior court. The burden of proof shall be upon the appellant to show that the decision of the director or agent was clearly unreasonable or unlawful, and all findings of the director or agent upon all questions of fact properly before him or her shall be deemed to be prima facie lawful and reasonable. The finding appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that the order is unjust or unreasonable.

III. No new or additional evidence shall be introduced in the superior court, but the case shall be determined upon the record and evidence transferred, except that in any case, if it shall be necessary in order that no party shall be deprived of any constitutional right, or if the court shall be of the opinion that justice requires the reception of evidence of facts which have occurred since the hearing, or which by reason of accident, mistake, or misfortune could not have been offered before the director or authorized agent, it shall remand the case to the director or authorized agent to receive and consider such additional evidence.

The Judicial Branch states this bill will decrease state general fund expenditures by $203,262 in FY 2005, and $406,524 in FY 2006 and each year thereafter. The Department of Safety states this bill will increase state expenditures by an indeterminable amount in FY 2005 and each year thereafter. There will be no fiscal impact on state, county, and local revenue or county and local expenditures.

The Judicial Branch states this bill changes the jurisdiction of contested minor traffic violations from the district court to an administrative proceeding in the Department of Safety. This bill sets up two levels of review in the Department including a proceeding before a hearing examiner, and a review by the Director of the Division of Motor Vehicles. Following Department action, appeal is to the superior court. The appeal is on record only, except for the very limited opportunity to take evidence as proposed in RSA 262:47,III. The Judicial Branch assumes that these administrative hearings do not apply to those summoned to appear personally under current RSA 262:44,I, which remains unchanged, and to other statutes that require a personal appearance in court. The Branch estimates 32,844 minor motor vehicle violation cases would be removed from the district court by this bill. For each case, the clerical time required is 15 minutes or ¼ of an hour, and the judicial time required is seven and a half minutes, or 1/8 of an hour. The average clerical and judicial employee is considered to work 1,800 hours per year. The Branch estimates savings in clerical time will equal 4.56 Court Assistant II positions with salaries and benefits of $26,500, for a savings of $120,840 per year. Savings in judicial time will equal 2.28 judges with salaries and benefits of $125,300, for a savings of $285,684 per year. Total savings as a result of this bill will total $406,524 annually. The effective date of this bill is January 1, 2005, resulting in a part year impact in FY 2005.

The Department of Safety states this bill establishes an administrative procedure for contested minor traffic violations that are currently heard in district court. When a person enters a not guilty plea on a summons and returns it to the Division of Motor Vehicles, the division will schedule an administrative hearing instead of sending the plea to a court to schedule a trial.