2008-434, JAMES KEROUAC v. DIRECTOR, NH DIVISION OF MOTOR VEHICLES

The plaintiff, James Kerouac, appeals the order of the

attorney general, on the memorandum of law), for the defendant. Kelly A. Ayotte, attorney general (Nancy J. Smith, senior assistant

to press. Errors may be reported by E-mail at the following address: Richard C. Mooney, of Concord, by brief, for the plaintiff.

DIRECTOR, N.H. DIVISION OF MOTOR VEHICLES

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-434 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as appeal followed. p. 2 challenges. The trial court ruled that the department had jurisdiction, and this

superior court and asked the court to issue rulings upon his jurisdictional peace and swore to the statements on the form.

upheld the hearings officer’s decision. The plaintiff then appealed to the on June 23, 2007, Chief Campbell personally appeared before the justice of the fifteen calendar days specified in the department’s rules. The defendant jurisdiction because the hearings officer failed to issue his report within the

signature. A justice of the peace signed the bottom of the form, indicating that however, to sign this part of the form, although there was a place for his requested review by the defendant, contending that the department also lacked indicating that the plaintiff had refused testing. Chief Campbell neglected, 265-A:30 (Supp. 2008) requires receipt of a “sworn report” of a law enforcement

the order was clearly unreasonable or unlawful.

recommended that the suspension be upheld. Thereafter, the plaintiff swore that he requested the plaintiff to submit to testing and checked the box of the form. A hearing was held and, sixteen days later, the hearings examiner Chief Campbell failed to sign section V of the ALS form. He contends that RSA jurisdiction over the matter because Chief Campbell had failed to sign section V

superior court from an ALS decision, the plaintiff has the burden to show that such order is unjust or unreasonable.” RSA 263:76 (2004). In an appeal to the unless it “is satisfied, by a clear preponderance of the evidence before it, that

him as

form, titled “Officer’s Report,” Chief Campbell listed his name as the officer who The plaintiff first argues that the department lacked jurisdiction because indicated that the plaintiff had failed to submit to testing. In section V of the asserting that the New Hampshire Department of Safety (department) lacked underneath the checked box. In section II of the form, he checked a box that Proulx, 154 N.H. at 351.

The superior court may not set aside or vacate the decision appealed from prima facie lawful and reasonable. Id. at 351; RSA 263:75, II (2004). must treat the hearings officer’s findings of fact on questions properly before of Motor Vehicles, 154 N.H. 350, 352 (2006). For its part, the superior court evidence does not support it or it is legally erroneous. Proulx v. Dir., N.H. Div. We will uphold the superior court’s decision on appeal unless the

refused testing. He requested an administrative hearing to challenge this, to sign his name as described above and then Chief Campbell signed his name

The plaintiff’s license was suspended because he was deemed to have testing. Chief Campbell checked a box indicating that the plaintiff had refused

After thirty minutes, Chief Campbell deemed the plaintiff to have refused

sign his name under these boxes. on the form that would have indicated that he accepted or refused testing or age of 21, 0.02 or more.

p. 3 we conclude that a “sworn report” need not be signed.

the right hand, but any other form or ceremony may be used which the person concentration of 0.08 or more, or, in the case of a person under the submit to testing or submitted to a test which disclosed an alcohol an ALS suspension. Pursuant to the plain meaning of RSA 265-A:30, however, requested pursuant to RSA 265-A:4 and that the person refused to

to be a “sworn report.”

officer swears. To swear in this context means “to utter or take solemnly (an

provides: “No other ceremony shall be necessary in swearing than holding up signed. See Appeal of State of N.H., 144 N.H. 85, 88 (1999). RSA 516:19 statement, RSA 516:19 (2007), also does not require that such a statement be deciding, that a “sworn report” is a jurisdictional prerequisite to an appeal of Further, the statutory provision addressing creation of a sworn department. In the report the officer shall certify that the test was

plain language of this provision does not require a report to be signed in order person’s driver’s license or privilege to drive . . . . Webster’s Third New International Dictionary 2308 (unabridged ed. 2002). The

The plain meaning of the phrase “sworn report” is a report to which an

Because the parties do not argue otherwise, we assume, without law enforcement officer shall submit a sworn report to the

submitted under paragraph I, the department shall suspend the II. Upon receipt of the sworn report of a law enforcement officer

ordinary meaning.

statute considered as a whole. under the age of 21 at the time of the violation, 0.02 or more, the alcohol concentration of 0.08 or more or, in the case of a person submits to a test described in RSA 265-A:4 which discloses an I. If any person refuses a test as provided in RSA 265-A:14 or

RSA 265-A:30 provides, in pertinent part:

have said nor add words that it did not see fit to include. Id.

itself, and, if possible, construe that language according to its plain and

the final arbiter of the intent of the legislature as expressed in the words of a novo. N.H. Dep’t of Envtl. Servs. v. Marino, 155 N.H. 709, 713 (2007). We are The interpretation of a statute is a question of law, which we review de

the officer’s signature, section V of the ALS form is not a “sworn report.” officer before the department may suspend a driver’s license, and that without verified.”

p. 4 making the verification is the person whose true signature is on the statement

appeared on the form, thus meeting the requirements of RSA 456-B:2, II. indicates the legislature’s intent that the statute is mandatory. The use of the word “shall” is generally regarded as a command and usually

officer “must determine . . . that the person appearing before the officer and requires that in taking a verification upon oath or affirmation, the notarial made by a person upon oath or affirmation.” RSA 456-B:1, III. RSA 456-B:2, II able to verify that Chief Campbell was the person whose true signature

within 15 days of the request for administrative review or the hearing date.”

upon oath or affirmation” is defined as “a declaration that a statement is true Chief Campbell appeared and swore to the statements in the ALS form was section of the form. With this signature, the justice of the peace before whom Although Chief Campbell failed to sign section V of the form, he signed another issue his or her recommendation on the order of suspension or revocation

report within the fifteen days required by RSA 265-A:31 (Supp. 2008) divested

v. Wheeler, 152 N.H. 643, 645 (2005).

attesting a copy, and noting a protest of a negotiable instrument.” “Verification

conclude that the ALS form here satisfies the requirements of RSA 456-B:2, II. RSA 265-A:31 provides, in pertinent part: “[T]he hearing examiner shall

The plaintiff next asserts that the hearings officer’s failure to issue his

department of jurisdiction to decide the plaintiff’s appeal.

upon oath or affirmation, witnessing or attesting a signature, certifying or acknowledgement, administering an oath or affirmation, taking a verification that a notary public is authorized to perform,” including “taking an We assume, without deciding, that RSA 456-B:2, II applies. Even so, we

RSA 456-B:2 (Supp. 2008) is part of the Uniform Law on Notarial Acts.

case, Officer Campbell’s failure to sign this part of the form did not deprive the sworn report was required to vest the department with jurisdiction, in this 265-A:30, the officer need not sign section V of the ALS form. Assuming that a

RSA ch. 456-B (Supp. 2008). RSA 456-B:1 defines a notarial act as “any act [must] swear to the truth of the document under oath,”

The plaintiff’s reliance upon RSA 456-B:2, II (Supp. 2008) is misplaced.

Therefore, we conclude that to constitute a “sworn report” under RSA

144 N.H. at 88, but need not sign it.

conscience.” To constitute a sworn statement under RSA p. 5 516:19, “the affiant to whom the oath is administered professes to believe more binding upon the 5

over the plaintiff’s appeal.

limit enacted by the legislature did not deprive the department of jurisdiction

decision to uphold the department’s suspension of the plaintiff’s license.

the hearings officer’s failure by one day to issue his decision within the time within the statutory period. BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred.

relief has shown prejudice. enforcing a statutory mandate, we have looked to whether the party seeking For all of the above reasons, therefore, we affirm the superior court’s

suspension of his license. We hold that under the circumstances of this case, certainly prejudiced” him, the only prejudice to which he points is the jurisdiction over a defendant is lost, absent waiver, if the case is not heard to “hasten the adjudicative process.” Although he argues that “[t]he delay enforcement. Here, the plaintiff concedes that the purpose of the mandatory period is

(1994). Further, where the legislature has failed to provide a method of treat the time limit as jurisdictional. Appeal of Martino, 138 N.H. 612, 616 dispositions for the benefit of all parties involved, we have been unwilling to prescribed time limits out of a general interest in hastening adjudicative

mandated time limits for holding hearings, we have held that personal

Id. Where the legislature, out of liberty interest concerns, has

Under such circumstances, we must determine the proper mode of The statute, however, is silent as to how this mandate is to be enforced.