2010-672 The State of New Hampshire v. Nicholas Gardner

Michael A. Delaney

No. 2010-672

Exeter District Court

while intoxicated (DWI) in the Exeter District Court (Cullen LYNN, J. The defendant, Nicholas R. Gardner, pleaded guilty to driving

Samdperil & Welsh, PLLC

intervention program (IDIP) within 45 days after his conviction. The court months of the revocation period provided he entered an impaired driver revoked for twelve months but that he be allowed to seek suspension of six part of his sentence, the defendant requested that his driver’s license be A:2 (Supp. 2010). On the date of the offense, he was nineteen years old. As , J.). See RSA 265-

for the defendant.

attorney general, on the brief), for the State.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as thereafter as any extenuating circumstances approved

p. 2 (3) within 45 days after conviction, or as soon

driver intervention program required by subparagraph

provided that the person has entered into the relevant

may suspend up to 6 months of this sentence,

extended for a period not to exceed 2 years. The court

discretion of the court, such revocation may be

shall be revoked for not less than 9 months and, at the The person’s driver’s license or privilege to drive

offender’s driver’s license, provides: RSA 265-A:18, I(a)(4), the subparagraph of the statute addressing loss of the RSA 265-A:18, I(a)(1)-(6) establish the penalties for a DWI first offense.

whether there was error by engaging in statutory interpretation. State v. Because a trial court’s sentencing authority is statutory, we determine

514 (2001). advanced by the entire statutory scheme.” Fichtner v. Pittsley, 146 N.H. 512, legislature’s intent in enacting them and in light of the policy sought to be and not in isolation. Id. at 423. “Our goal is to apply statutes in light of the Finally, we interpret a statute in the context of the overall statutory scheme to determine the legislature’s intent. See Kousounadis, 159 N.H. at 424. more than one reasonable interpretation, we may consult its legislative history 187, 193 (2009). If, however, statutory language is ambiguous and subject to have said or add language it did not see fit to include. State v. Hynes, 159 N.H. from the statute as written and will not consider what the legislature might Town of Dalton, 153 N.H. 75, 78 (2005). Further, we interpret legislative intent is clear on its face, its meaning is not subject to modification. Dalton Hydro v. the age of twenty-one. We disagree. Kenison v. Dubois period specified in RSA 265-A:18, III (Supp. 2010) for DWI defendants under, 152 N.H. 448, 451 (2005). When the language of a statute where possible, we ascribe the plain and ordinary meanings to the words used. years of age or older, applies equally to the twelve-month minimum revocation 157 N.H. 421, 422 (2008). We first examine the language of the statute, and, minimum license revocation period for DWI defendants who are twenty-one expressed in the words of a statute considered as a whole. State v. Gallagher which allows courts to suspend six months of the nine-month mandatory, 423 (2009). We are the final arbiters of the intent of the legislature as On appeal, the defendant argues that RSA 265-A:18, I(a)(4) (Supp. 2010), question of law, which we review de novo. State v. Kousounadis, 159 N.H. 413, Pandelena, 161 N.H. 326, 329 (2010). The interpretation of a statute is a

impose such a sentence. The defendant appeals. We affirm. denied the defendant’s request, ruling that it did not have the authority to twenty-one is to be sentenced “in accordance with this section [i.e. p. 3 prompt enrollment in an IDIP. If, as paragraph III indicates, an offender under minimum mandatory revocation period to be suspended if a defendant seeks of subparagraph I(a)(4) specifically allows up to six months of even this (“license . . . shall be revoked for not less than one year”), the second sentence is a minimum mandatory period for offenders under the age of twenty-one not less than 9 months”) in the same way that paragraph III indicates one year is a minimum mandatory revocation period (“license . . . shall be revoked for sentence of subparagraph I(a)(4) is written in terms that suggest nine months offense. This view finds some support in the fact that, although the first year period when the offender is under the age of twenty-one at the time of the month license revocation period specified in subparagraph I(a)(4) with a onelanguage, the defendant contends that paragraph III simply replaces the nine-

Relying on the “shall be sentenced in accordance with this section”

not less than one year.

driver’s license or privilege to drive shall be revoked for

this section, except that in all cases the person’s

not relevant to this appeal. See 265-A:18, III was first enacted in 2001; it was amended in 2004 in a manner cases” contained in the proviso clause of RSA 265-A:18, III. What is now RSA This argument, however, fails to take into account the phrase “in all paragraph III would have had the same meaning whether it read: “except that suspension of any 21 shall be sentenced according to the provisions of minimum mandatory revocation period, the proviso clause of superfluous language. That is, because there was no provision allowing for the paragraph III first became law the phrase “in all cases” appears to have been ninety days. See RSA 265:82-b, I(a)(3) (2000) (repealed 2006). Thus, when A:18, I(a)(4) simply provided for a mandatory minimum revocation period of RSA 265:82-b, I-b (2004)). When this law was enacted, what is now RSA 265- Laws 2000, 143:1; Laws 2003, 37:1 (former

revocation period if the offender enters an IDIP within 45 days of conviction. permitting the court to suspend up to six months of the one-year minimum offense occurred while the person was under the age of second sentence of subparagraph I(a)(4) should also apply to such offender, RSA 265-A:2, I, RSA 265-A:3, or RSA 630:3, II and the A:18],” except for the increased minimum mandatory revocation period, the

Any person who is convicted of an offense under

states: years of age, the applicable provision of the statute is RSA 265-A:18, III, which However, for those who commit such an offense when under twenty-one

allow[.]

by the department of health and human services p. 4 4

entice people into treatment. It provides a carrot and

study committee that lasted over two years in length to This bill is basically an attempt by members of the

the bill, explained its purpose: Senate Judiciary Committee, Representative John Tholl, the primary sponsor of introduced in the House of Representatives as HB 521. In testimony before the been aware when it amended subparagraph I(a)( p. 4 4), see the age of twenty-one. The bill that became Laws 2003, chapter 243 was cases” language, the existence of which the legislature is presumed to have minimum mandatory revocation for early treatment to apply to offenders under month revocation applicable to that offender. On the other hand, the “in all legislature did not intend the option of a six-month suspension of the one-year to the benefit of the suspension provision of the otherwise mandatory nine- The legislative history of Laws 2003, chapter 243 reveals that the year license revocation, just as an offender age twenty-one or older is entitled of subparagraph I(a)(4)’s suspension provision of the otherwise mandatory oneinterpreted to mean that an offender under twenty-one is entitled to the benefit “shall be sentenced in accordance with the provisions of this section” could be statute. On the one hand, the language indicating that a paragraph III offender was to create an ambiguity regarding the meaning of paragraph III of the revocation period under certain circumstances, the effect of this amendment I(a)(4) created the possibility of a reduction of the mandatory minimum the statute. Because the addition of the second sentence of subparagraph chapter 243 made no change to the language of what is now paragraph III of revocation period upon prompt entry into an IDIP. Significantly, Laws 2003, now RSA 265-A:18, I(a)(4), permitting suspension of six months of the offenders age twenty-one and older, and added the second sentence to what is legislative history to discern legislative intent. Kousounadis, 159 N.H. at 424. extended the minimum mandatory revocation period to nine months for suspension. Because both interpretations are reasonable, we examine chapter 243. This legislation, which became effective on January 1, 2004, offender under the age of twenty-one receive less than a one-year license However, the situation changed when the legislature enacted Laws 2003, month suspension of their minimum revocation period, in no case shall an mean that, notwithstanding that some offenders are now eligible for a sixand Statutory Construction § 22.29 (7th ed. 2009), could be interpreted to

DWI offenders under the age of twenty-one. year minimum mandatory license revocation period would have applied to all other words, whether the “in all cases” language was included or not, the onelicense or privilege to drive shall be revoked for not less than one year.” In not less than one year”; or instead stated, “except that the person’s driver’s in all cases the person’s driver’s license or privilege to drive shall be revoked for p. 5 Senate Comm. on Judiciary, Hearing on HB 521-FN

not getting into treatment. you can get an extended period of loss of license for penalties if you get into treatment early. If you don’t,

decrease applied to offenders under the age of twenty-one, the result would be to defendant argues, the suspension provision of RSA 265-A:18, I(a)(4) were below what it was before the amendment was enacted. However, if, as the that there was no intent to reduce the minimum mandatory revocation period treatment. The sponsors and supporters of the bill emphasized time and again revert to ninety days, as under the prior law) if the offender obtained early this additional six months suspended (so that the minimum revocation would and older by six months, while at the same time providing an option to have increase the minimum mandatory revocation period for offenders twenty-one sentence would be no longer than the current As the above testimony makes clear, the purpose of the legislation was to

less than one year, and given the specifically articulated “carrot and stick” mandatory revocation period for offenders under age twenty-one to a period of that the six-month suspension period would be applied so as to reduce the legislative history indicates that the legislature contemplated the possibility year revocation period for offenders under twenty-one. Nothing in the stems from the fact that the legislation did not increase the mandatory onefrom one year – as it was before the amendment – to six months. This result to what it is currently now. In other words, your the minimum suspension period under paragraph III of the statute

period, you can get the extended period dropped back Comm. of Safety John Stephen). your sentence and complete it within a certain time

minimizing them or lessening them in any way.”) (testimony of Assistant However, if you go into treatment in the early parts of from law enforcement that we are not in any way modifying these penalties or think that helps. But, we want to make sure from a safety standpoint and treatment is available . . . . If we can get more folks into treatment quicker, I think what we are trying to do here is all realize that we need to make sure suspended for another six months.”) (testimony of Rep. Susan Almy); id. at 9 (“I convincing to Health and Human Services, then you have to have your license to treatment within forty-five days and you don’t have a good reason that is way. It just takes back the increase that we provided in the bill. If you don’t go penalties, removal of penalties, decreases the time now on the books in any by increasing penalties and then taking the increase away. None of these Senate is very reluctant to cut back on suspension time. We provided a carrot (Testimony of Rep. John E. Tholl, Jr.); see revocation period of your license for a period of time. also id. at 4 (“So, we realize the

a stick. Basically, what it does is extend the p. 6 6

DALIANIS, C.J.