HB1257: relative to penalties for driving under the influence with a minor in the vehicle.

CHAPTER 109

HB 1257-FN – FINAL VERSION

17Mar2004… 0603h

04/22/04 1230s

2004 SESSION

03-2109

03/09

HOUSE BILL 1257-FN

AN ACT relative to penalties for driving under the influence with a minor in the vehicle.

SPONSORS: Rep. R. L’Heureux, Hills 58; Rep. Berube, Straf 67; Rep. Stohl, Coos 1; Sen. Roberge, Dist 9; Sen. Martel, Dist 18; Sen. Flanders, Dist 7; Sen. Johnson, Dist 2

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill classifies driving a vehicle or off highway recreational vehicle while under the influence of intoxicating liquor or a controlled drug and carrying a passenger under the age of 16 as aggravated driving while intoxicated. This bill also makes boating while intoxicated while transporting a person under the age of 16 subject to the same penalties as aggravated driving while intoxicated and clarifies certain provisions of the boating while intoxicated law.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

17Mar2004… 0603h

04/22/04 1230s

03-2109

03/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT relative to penalties for driving under the influence with a minor in the vehicle.

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

109:1 Off Highway Recreational Vehicles; Aggravated Driving While Intoxicated. Amend RSA 215-A:11, II to read as follows:

II. A person shall be guilty of aggravated driving while intoxicated if such person drives, operates, or attempts to operate an OHRV:

(a) While under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drug and, at the time alleged:

(1) Causes an OHRV collision resulting in serious bodily injury, as defined in RSA 625:11, VI, to the person or another; [or]

(2) Attempts to elude pursuit by a law enforcement officer by increasing speed, extinguishing headlamps while still in motion, or abandoning the OHRV while being pursued; or

(3) Carries as a passenger a person under the age of 16;

(b) While having an alcohol concentration of 0.08 or more or, in the case of a person under the age of 21, 0.02 or more and, at the time alleged:

(1) Causes an OHRV collision resulting in serious bodily injury, as defined in RSA 625:11, VI, to the person or another; [or]

(2) Attempts to elude pursuit by a law enforcement officer by increasing speed, extinguishing headlamps while still in motion, or abandoning the OHRV while being pursued; or

(3) Carries as a passenger a person under the age of 16;

(c) While having an alcohol concentration of 0.16 or more.

109:2 Aggravated Driving While Intoxicated. Amend RSA 265:82-a to read as follows:

265:82-a Aggravated Driving While Intoxicated. A person shall be guilty of a violation of this section if the person drives or attempts to drive a vehicle upon any way:

I. While under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drug and, at the time alleged:

(a) Drives at a speed more than 30 miles per hour in excess of the prima facie limit[,];

(b) Causes a motor vehicle collision resulting in serious bodily injury, as defined in RSA 625:11, to the person or another[, or];

(c) Attempts to elude pursuit by a law enforcement officer by increasing speed, extinguishing headlamps while still in motion, or abandoning a vehicle while being pursued; or

(d) Carries as a passenger a person under the age of 16;

II. While having an alcohol concentration of 0.08 or more or, in the case of a person under the age of 21 at the time of the offense, 0.02 or more or, in the case of a person driving a commercial motor vehicle and licensed pursuant to RSA 263:86 at the time of the offense and notwithstanding the provisions of RSA 263:94, 0.04 or more and, at the time alleged:

(a) Drives at a speed more than 30 miles per hour in excess of the prima facie limit[,];

(b) Causes a motor vehicle collision resulting in serious bodily injury, as defined in RSA 625:11, to the person or another[, or];

(c) Attempts to elude pursuit by a law enforcement officer by increasing speed, extinguishing headlamps while still in motion, or abandoning a vehicle while being pursued; or

(d) Carries as a passenger a person under the age of 16; or

III. While having an alcohol concentration of 0.16 or more.

109:3 Penalties for Intoxication or Under Influence of Drug Offenses; Boating. Amend RSA 265:82-b, I-a to read as follows:

I-a. Any person convicted of a violation of RSA 270:48-a, III shall be subject to the penalties set out in this section for a violation of RSA 265:82-a. Any person convicted of a violation of any other provision in RSA 270:48-a shall be subject to the penalties set out in this section for a violation of RSA 265:82.

109:4 Evidence; Reference Added. Amend RSA 265:89 to read as follows:

265:89 Evidence. Upon complaint, information, indictment, or trial of any person charged with the violation of RSA 265:82 or 265:82-a, the court may admit evidence of physical testing of the defendant for being under the influence of intoxicating liquor or controlled drugs as provided in RSA 265:84, and of the controlled drug content of the defendant’s blood and the defendant’s alcohol concentration, as shown by a test of his or her breath, blood, or urine as provided in RSA 265:84. Evidence that there was, at the time alleged, an alcohol concentration of 0.03 or less is prima facie evidence that the defendant was not under the influence of intoxicating liquor. Evidence that there was, at the time alleged, an alcohol concentration of more than 0.03 and less than 0.08 is relevant evidence but is not to be given prima facie effect in indicating whether or not the defendant was under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. Evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more is prima facie evidence that the defendant was under the influence of intoxicating liquor. In addition, evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more shall, in conjunction with the evidence otherwise required by RSA 265:82, I(b) of driving or attempting to drive a vehicle upon a way, constitute a separate offense under RSA 265:82, I(b); and evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more shall, in conjunction with the evidence otherwise required by RSA 265:82-a, II of driving or attempting to drive a vehicle upon a way and of one or more of the circumstances specified in RSA 265:82-a, II (a), (b), [and] (c), and (d) constitute a separate offense under RSA 265:82-a, II; and evidence that there was, at the time alleged, an alcohol concentration of 0.16 or more shall, in conjunction with the evidence otherwise required by RSA 265:82-a, III of driving or attempting to drive a vehicle upon a way, constitute a separate offense under RSA 265:82-a, III.

109:5 Boating While Intoxicated; Penalties. Amend RSA 270:48-a to read as follows:

270:48-a Boating While Intoxicated; Penalties.

I. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug.

II. Any person convicted of a violation of [(a) this section;] paragraph I of this section or [(b)] RSA 630:2 or [3] RSA 630:3, or RSA 631:1, [2, 2-a, or 3] RSA 631:2, RSA 631:2-a, or RSA 631:3 when the offense was committed by means of his or her operation of a boat shall not operate a boat on the waters of this state for a period of one year from the date of his or her conviction, whether or not such conviction is appealed. Any person operating a boat during such a period is guilty of a misdemeanor.

III. Any person convicted of a violation of paragraph I of this section who at the time of the violation was transporting a person under the age of 16 shall not operate a boat on the waters of this state until the offender has successfully completed a 7-day program at the state operated multiple DWI offender program or an equivalent 7-day residential intervention program approved by the commissioner of the department of health and human services at the person’s own expense. Any person operating a boat in violation of this paragraph is guilty of a misdemeanor.

IV. Upon complaint, information, indictment, or trial of any person charged with a violation of this section, the court may admit evidence obtained under RSA 270:49 of the defendant’s alcohol concentration as defined in RSA 259:3-b at the time alleged, as shown by a chemical, infrared molecular absorption, or gas chromatograph test or tests of his or her breath, urine, or blood.

V. Any conviction under this section shall be reported to the commissioner of the department of safety, division of motor vehicles, and shall become a part of the motor vehicle driving record of the person convicted.

VI. Any person who is convicted of a violation of [paragraphs I-III] paragraph I of this section shall be subject to the same penalties as a person convicted of a violation of RSA 265:82 as specified in RSA 265:82-b. Any person who is convicted of a violation of paragraph III of this section shall be subject to the same penalties as a person convicted of a violation of RSA 265:82-a as specified in RSA 265:82-b.

VII. Any person who is convicted of a violation of RSA 265:82 or RSA 265:82-a shall lose the privilege to operate a motorboat on the waters of this state for a period of one year from the date of conviction.

109:6 Penalties for Intoxication or Under Influence of Drug Offenses; Boating. Amend RSA 265:82-b, VIII to read as follows:

VIII. Any person convicted of a violation of RSA 215-A:11, RSA [265:82] 270:48-a, or RSA 265:82-a, and who at the time of driving a vehicle or off highway recreational vehicle or operating a boat was transporting a person under the age of 16, shall have the driver's license or privilege to drive revoked for the maximum time period under the section violated and the person's license or privilege to drive shall not be restored until the offender has successfully completed a 7-day program at the state-operated multiple DWI offender program or an equivalent 7-day residential intervention program approved by the commissioner at the person's own expense.

109:7 Effective Date. This act shall take effect January 1, 2005.

(Approved: May 17, 2004)

(Effective Date: January 1,2005)