CHANGES TO NEW HAMPSHIRE'S DWI LAWS -- EFFECTIVE JANUARY 1, 2013

Governor John Lynch signed recent legislation into law which affects New Hampshire's Driving While Intoxicated (DWI) laws starting on January 1, 2013.

The first significant change is that an individual can be convicted of a DWI if the State can prove that the accused individual was under the influence of any substance that impairs his or her ability to drive.  Previous to this change, the State had to prove that the accused individual was under the influence of alcohol or a "controlled substance." Now, the statute has been changed so that it is against the law to be under the influence of "intoxicating liquor or any controlled drug, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a person's ability to drive[.]"  Significantly, the New Hampshire Supreme Court has already defined "under the influence" as impairment to any degree (which is the strictest definition in the nation).  This change to the law dramatically affects New Hampshire residents and other motorists driving in New Hampshire as they could easily find themselves facing a DWI charge (as opposed to a traffic violation) if the State determines the motorists have a prescription medication, or even Tylenol, in their bodies at the time of the traffic violation.

The next major change is that the alcohol programs associated with DWI convictions are being completely revised.  Prior to 2013, if an individual was convicted of DWI, he or she would have to attend one of three programs: (1) an impaired driving intervention program (IDIP) for a first offense, (2) a multiple offender program (MOP) for an aggravated DWI or second offense, (3) a 28-day inpatient program for a third or more offense.  Effective January 1, 2013, if an individual is convicted of a DWI, he or she will have to complete the Impaired Driver Care Management Program (IDCMP).  The intake for the program must be done within 14 days of the conviction date. At the IDCMP, a determination is made as to whether or not the individual is at high risk to re-offend. If so, the program will require him or her to successfully complete counseling before he or she is able to have his or her license reinstated.  If an individual enrolls in the IDCMP within 14 days of conviction and completes the substance use evaluation within 30 days, then the 9 month loss of license may be reduced to 90 days.

A third change to the New Hampshire DWI laws is that the penalties for an aggravated DWI and second DWI have been increased.  Prior to 2013, if an individual was convicted of an aggravated DWI or second DWI, he or she faced a minimum of 3 days in jail and a 7 day in-patient alcohol program.  Effective January 1, 2013, an individual convicted of a DWI must serve a minimum of 17 consecutive days in jail, but 12 days may be suspended upon successful completion of the IDCMP.

A fourth major change to the New Hampshire DWI laws is that arraignments must occur within 14 days of the date of the violation.

Finally, the last major change to the New Hampshire DWI laws is that the Department of Motor Vehicles (DMV) may not require an Interlock device for any DWI conviction.  Prior to 2013, Interlock devices were required to be installed by an individual convicted of an aggravated DWI and subsequent DWI offenses.  Also, a judge could order an Interlock device be installed for any individual convicted of any DWI.  Effective January 1, 2013, the DMV may now require any individual convicted of any DWI to install an Interlock device pursuant to RSA §265-A:36-a.

ENGAGING GUARDIAN AD LITEMS IN PARENTING CASES

Ideally, parents would be able to agree upon a parenting schedule for their children.  Parents are best suited to this task because know their own schedules, their children’s schedules, and their children’s personalities better than any attorney, Judge, or a Guardian ad Litem ever can.  If the parents cannot reach an agreement regarding parenting time, then a Judge must ultimately decide what parenting time each parent has with the child.  In making this decision, the Judge is guided by the best interest of the child standard contained in NH RSA 461-A:6(I).  The statute provides that “[i]n determining parental rights and responsibilities, the court shall be guided by the best interests of the child, and shall consider the following factors:
(a)    The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.

(b)   The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

(c)    The child’s developmental needs and the ability of each parent to meet them, both in the present and in the future.

(d)   The quality of the child’s adjustment to the child’s school and community and the potential effect of any change.

(e)    The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or to a parent.

(f)    The support of each parent for the child’s contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent.

(g)   The support of each parent for the child’s relationship with the other parent, including whether contact is likely to result in harm to the child or to the parent.

(h)    The relationship of the child with any other person who may significantly affect the child.

(i)     The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children, including whether contact is likely to result in harm to the child or to a parent.

(j)     Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

(k)   If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration.

(l)     Any other additional factors the court deems relevant.” 

Each parent may present evidence to the Court as to why the schedule that they are requesting is in the child’s best interest in accordance with this statute.  A Guardian ad Litem is a person certified to perform an investigation and make recommendations to the Court as to what parenting schedule would be in the child’s best interest. Either or both parents may request a Guardian ad Litem to be appointed. 

Guardian ad Litems in divorce and parenting cases are paid privately by the parties to the case.  Generally, the Court will allocate payment of a Guardian ad Litem between the children’s parents.  This prevents one parent from purposely incurring unnecessary Guardian ad Litem fees in an effort to increase the other parent’s fees.  However, if the Court finds that either or both parents do not have the ability to pay for a Guardian ad Litem, they may order that the parent requesting the Guardian ad Litem be responsible for the cost of the Guardian ad Litem’s fees. 

It is helpful to have a Guardian ad Litem if you are looking to provide evidence that would not be easily provided in Court.  For example, a Guardian ad Litem will routinely interview children where a Judge will not typically have a child come in to Court to testify.  In addition, a Guardian ad Litem can go to a parent’s home if there are safety issues being alleged.  In fact, Guardian ad Litem can even make unannounced visits to a parent’s home if they deem it necessary.

If both parents are represented by counsel, it is helpful for the attorneys to agree upon who will be appointed Guardian ad Litem.  If the parties are not able to agree, the Court will appoint a Guardian from the list of Court approved Guardian ad Litems, leaving the parties with no control over who is appointed. 

Once a Guardian ad Litem is appointed, he or she will send a Questionnaire and Stipulation to the parents for signature.  As part of this process, both parents provide information they believe is relevant to the case, including a list of witnesses for the Guardian ad Litem to speak with. 

Upon receipt of these documents and the retainer fee, the Guardian ad Litem will begin the investigation.  The process that the Guardian ad Litem uses during the investigation varies.  It generally involves interviewing both parents, the children, and going to the parents’ homes.  The Guardian ad Litem may also speak to the children’s counselors and teachers. 

Once the Guardian ad Litem completes the investigation, he or she will issue a final report detailing the information received and recommendations.  Many times after the Guardian ad Litem issues a final report, the parents are able to use the Guardian ad Litem report as the basis to negotiate a resolution to the case.

If parents are still unable to reach a resolution, the Court will schedule a final hearing where both parents have the opportunity to present evidence.  In addition, the Guardian ad Litem testifies as to the basis of his or her opinions and recommendations.  Both parents have the right to question the Guardian ad Litem.

Although the Court considers the testimony of the Guardian ad Litem when issuing its Court Order, the Court will also consider any other evidence presented by the parents at the final hearing.  Ultimately, it is still the Judge and not the Guardian ad Litem that makes the final parenting orders.