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Compendium
Superior Court Cases

Habitual Offender Appeals
 
Habitual Offender Certifications | Habitual Offender Defaults | Habitual Offender Decertification
 
I. Habitual Offender Certifications
 
Cooney v. Hume, 217-2012-CV-00815, (McNamara, 3/5/13), DENIED
Habitual offender offenses occurred within a 5 year period between 1999 and 2003. Respondent unable to be served until 2012. Statute, RSA 262:19, requires certification where record qualifies person and only discretion is term of 1 to 4 years. No time limit on when HO hearing must be held. Time of offenses and lapse of time between offenses and certification is not relevant.
Skehan v. Barthelmes, 217-2011-CV-00292, (Smukler, 6/1/11), DENIED
Before habitual offender hearing, action filed in Superior Court to terminate hearing. Court held that the Petitioner had an adequate remedy at law, the hearing process, and therefore, denied the petition. Petitioner challenged the use of a Maine operating to endanger charge for certification as being the equivalent to a NH reckless driving conviction.
Belanger v. Dept. of Safety, 217-2011-CV-00513, (Smukler, 10/11/11), AFFIRMED
Habitual offender appeal. Argued that HO process should have been initiated when he first qualified in 2007. Certified in July, 2011. Petitioner failed to demonstrate order unlawful or unreasonable.
Loveland v. Beecher, 217-2009-EQ-00427, (McNamara, 3/24/10), AFFIRMED
Habitual offender appeal. Challenged the hearings examiner's use of a Massachusetts conviction and the decision to not back date the order to the date of final conviction because the Petitioner had a valid license on the day of the hearing. Conflict between administrative rule which makes use of out of state convictions mandatory and statute which makes such discretionary valid exercise of director's authority to require hearings examiners to utilize these convictions. Valid to deny backdating of order where Petitioner had a valid license between time of final conviction and hearing date under RSA 262:19,III which requires minimum 1 year license suspension.
Brackett v. DMV, 09-E-0449, (Merrimack, Conboy, 03/24/09), AFFIRMED
Habitual offender appeal. Petitioner attempted a collateral attack on some of the underlying convictions and license suspension. At the certification hearing, the Petitioner admitted to 6 of the 7 underlying convictions but contested 1 conviction arguing that it had been placed on file. The Hearings Examiner found that it was a valid conviction because the Petitioner had previously admitted that it was a conviction at a prior hearing for demerit points. Hearings Examiner did not err by finding that contested case was a conviction because the abstract of the conviction constituted prima facie evidence that the Petitioner was convicted of the offense. Also, the Petitioner had 3 major convictions on her record, and therefore, she qualified even without the contested conviction. Petitioner's collateral attack on the underlying suspension and conviction improper.
Glover v. NH DMV, 09-E-0089, (Merrimack, Conboy, 03/19/09), AFFIRMED
Habitual offender appeal. Petitioner argued that it is extreme hardship not to have a license and that his offenses were not serious enough to warrant the habitual offender sanction. Certification based on 3 convictions for Operating after Suspension. Court affirmed and found that the Hearings Examiner did not act illegally with respect to jurisdiction, authority or observance of law. Habitual offender sanction mandatory under RSA 259:39.
Herrick v. Director, 08-E-240 (Merrimack, Mangones, 11/5/08) AFFIRMED
Respondent was certified as an habitual offender on the basis of convictions for 10 includable offenses. Respondent argues that the certification was in error as she had previously been certified as an habitual offender and the hearings examiner utilized some of the same offenses to certify her the second time. The court accepted the state's position that the use of offenses from a prior certification was permissible provided the offenses fell within a five-year period and there were new offenses since the last certification. The court noted that "by committing two additional motor vehicle infractions within the same five-year period … the petitioner has demonstrated that she is not fit to operate a motor vehicle. "
Bushong v. Beecher, 07-E-0139 (Merrimack, Conboy, 04/26/07 REMANDED
Petitioner certified as habitual offender and complained that he was not given a fair opportunity to be heard. He argued that a lot of time (ten years) had passed since the convictions and he had done what was required. Court did not agree with either argument. It held that there was no time limit and cited State v. Lemire 125 NH 461 (1984). However, the Court held that Petitioner did not have sufficient notice because the hearing was held the same day that he was served. Court held that there were due process implications and returned case for clarification.
Camasso v. Beecher, 07-E-0236, (Merrimack, Burling, 08/20/07) AFFIRMED
Petitioner certified as habitual offender and challenged the statute, RSA 259:39 I, and process because Hearings Examiner was not required to certify him. He argued that the statute stated that multiple convictions during the same incident may be used in certifying him as an Habitual Offender, but it was not mandatory. He also argued that the almost four-year delay in certifying him was a statute of limitations violation …"Court did not agree with either argument. It held that there was no time limit and cited State v. Lemire 125 NH 461 (1984). It also held it was not an error for the Hearings Examiner to consider both convictions that came from a single incident because the statute authorized it.
Lance v. Beecher, 04-E-0035, (Merrimack, Lewis, 4/19/04) AFFIRMED
Certified as an Habitual Offender; Petitioner claimed she was not provided express notification that she was potentially subject to being certified again as an Habitual Offender based, in part, upon offenses occurring prior to her decertification. "Court notes that RSA 259:39 specifies in detail the types and numbers of offenses/convictions and the timeframe. " "The Petitioner was not improperly denied any notice, rather, her post-restoration speeding offenses created a new driving record which properly prompted another Habitual Offender proceeding. "
Day v. Beecher, 03-E-231, (Merrimack, Houran, 10/08/03) AFFIRMED
Certified as an Habitual Offender; Petitioner claimed that one of the convictions on his record improperly identified both its violation and conviction dates.Court held: "these administrative defects are mere irregularities and do not undermine their status as three qualifying offenses within five years".
Read v. Beecher, 02-E-30, (Merrimack, Fitzgerald, 7/9/02) AFFIRMED
Certified as an Habitual Offender; petitioner did not bring the copy of his driving record to the hearing; he insists that his copy did not have these notations and that he did not have an adequate opportunity to defend himself; he declined attorney representation; and also argues that he was denied an opportunity to argue mitigation prior to the hearings examiner revoking his license for the maximum amount of time permitted under RSA 262:19.The Court concludes that … had ample opportunity to present mitigating evidence … -See RSA 262:18, III (requiring increased and added deprivation of privilege to drive pursuant to habitual offender certification. )
Huffman v. Beecher, 01-E-44 (Merrimack, Fitzgerald, 2/4/02) AFFIRMED
Certified as an Habitual Offender; petitioner claimed that his July 17, 2001 conviction should not be considered for Habitual Offender certification because he should not have been convicted for that offense; this conviction was not appealed; court finds that "if the petitioner believed he was wrongly convicted his proper remedy was to file an appeal. "; Dist. Ct. Rule 2.13; a ruling by the District Court is final and binding; "the Hearings Examiner's scope of authority regarding orders issued by the Court is to review the convictions to determine if there exists sufficient convictions to satisfy RSA 259:39. "
Finneral v. Beecher, 01-E-203, (Merrimack, Fitzgerald, 10/31/01) AFFIRMED
Petitioner challenged 2 "convictions" used in certifying him as an Habitual Offender; he argued that paying the fine over the phone for the traffic violations does not amount to a "conviction" for the purposes of habitual offender certification, stating that Saf-C 202.1 (i)states;"Conviction" means a finding, as determined by the court, of guilty, guilty continued for sentencing, or placed on file with a finding of guilty, …"Court held: that before "conviction" is defined, the introductory language in Saf-C 201 states: Definitions. Whenever used in these rules, the following terms shall be construed as set forth below, unless a different meaning is clearly stated within the test. " When one pays the fine over the phone by credit card, one has pled guilty and is thus convicted of the offense.
King v. Flynn, 01-E-225, (Merrimack, McGuire, 7/31/01) AFFIRMED
Certified as an Habitual Offender, petitioner claims "because two convictions obtained … without her being fully apprised of her rights and the ramifications of her convictions that she did not waive these rights knowingly, intelligently and voluntarily. " Court held "Because a violation as defined in RSA 625:9 V (1996) is not "punishable by a deprivation of liberty," none of the convictions upon which the petitioner's habitual offender certification is based are ones for which she was constitutionally entitled to counsel. "
Motto v. Beecher, 99-E-478, (Merrimack, Smukler, 6/10/99) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that the delay between the last conviction (1995) and his certification on November 20, 1998 violated his right to due process; court held that "there is no question that the respondent is statutorily empowered to bring the habitual offender petition within the instant time frame … On the basis of the instant record, the Court also cannot find facts that would support a due process violation".
McEwan v. Beecher, 99-E-186, (Merrimack, Smukler, 6/10/99) AFFIRMED
Certified as an Habitual Offender; plaintiff claimed that two of the underlying convictions were for operating a motorcycle without a license but that he had a driver license at the time; court held that "Said convictions had been entered on the petitioner's record, they were appropriate for the conduct alleged, and they had not otherwise been vacated or annulled. The valid driver's license held by the petitioner at the time does not undercut a conviction for the offense of driving a vehicle he was not licensed to operate. Additionally, the subject convictions are subject to be included in the calculus of habitual offender certification".
Ward v. Beecher, 98-E-67, (Merrimack, Nadeau, 4/6/99) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that two of his convictions for Operating After Suspension should not be counted because he had not received adequate notification of the suspensions; court held that "Though the petitioner now claims he did not receive adequate notification of the suspensions, such an argument constitutes a collateral attack upon the underlying convictions … The petitioner … should have raised the issue of improper notification at the time he plead guilty to the underlying operating after suspension offenses".
Rogers v. Beecher, 98-E-29, (Merrimack, McGuire, 3/16/98) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that two of her convictions for Speeding should not be counted because the judge did not check off a "guilty" finding after she had pled nolo to the two offenses; "… the fact that the district court judge neglected to check the guilty box on the court document, does not invalidate the convictions for the purposes of the habitual offender statute … all of the surrounding circumstances compel the conclusion the petitioner was convicted of the two offenses in issue. She pled nolo contendere to each charge and paid fines of $72 on each. She did not appeal her convictions and does not deny that she committed those offenses".
Rice v. Beecher, 97-E-41, (Merrimack, Arnold, 9/26/97) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that his appeal to the Supreme Court of two of the underlying convictions should stay the suspension of his license; "the Court concludes that the convictions which are on appeal constitute valid convictions for the purpose of imposing the suspension of the plaintiff's license previously held in abeyance", citing Young v. Turner, below.
Yacovangelo v. Beecher, 97-E-167, (Merrimack, Manias, 8/20/97) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that the two-year revocation period imposed was arbitrary; court held that "his past and present conduct demonstrate an indifference to the safety and welfare of others"; court also stated "revocation will prevent the petitioner from entering upon the ways of New Hampshire and thus, promote the safety of others traveling upon the ways. Revocation will also discourage the petitioner from repeating his past and present conduct". (NOTE: detailed analysis of conduct justifying revocation)
Parent v. Beecher, 96-E-367, (Merrimack, Manias, 2/28/97) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that three of the four violations relied upon for his certification were over five years old and that the lack of a statute of limitations constituted a violation of due process; court held that hearing was held shortly after DMV successfully served plaintiff and because "… it was appellant's failure to provide notice of his permanent address change which caused the delay, the habitual offender hearing and certification were not untimely"; court also stated that there is no statute of limitations for habitual offender hearings and therefore no lack of due process since "… the delay between appellant's last conviction and certification is less than three years", citing State v. Lemire. (NOTE: in Motion For Reconsideration, court reversed the portion of the decision relative to failing to notify DMV of address change since plaintiff had an out-of-state license but upheld order anyway because of no statute of limitations)
Semerjian v. Beecher, 96-E-331, (Merrimack, McGuire, 1/21/97) REVERSED
Certified as an Habitual Offender based upon out-of-state convictions; court held that "… respondent conceded that the documentation provided by the State of Maine would have been insufficient, had the 1993 conviction at issue been a New Hampshire conviction, to demonstrate that he knowingly, voluntarily, and intelligently waived his right to counsel …", citing State v. Ward; court further stated that it did not find "…that distinguishing an out of state conviction from a New Hampshire conviction complies with the letter and/or the spirit of New Hampshire law".
St. Laurent v. Beecher, 96-E-302, (Merrimack, Arnold, 12/18/96) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that statute of limitations or laches made certification untimely as DMV waited two years to certify as an Habitual Offender because he was incarcerated during that period; court held "… the petitioner is not entitled to have his habitual offender certification done immediately upon his qualification. If the respondent had gone forward right away, the certification would have expired before the petitioner was released from jail. He would not have suffered any increased and added deprivation", citing State v. Lemire.
Gordon v. Beecher, 96-E-134, (Merrimack, Smukler, 6/28/96) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that statute of limitations or laches made certification untimely as all offenses occurred in 1992 or earlier; court held "… DMV procedures for such certification cannot be triggered until convictions are entered on those offenses. The petitioner failed to prove that the DMV needlessly delayed or otherwise prejudiced him in the timing of its actions upon receipt of notification of the July 26, 1995 conviction".
Bierley v. Beecher, 95-E-336, (Merrimack, McGuire, 12/18/95) AFFIRMED
Certified as an Habitual Offender in 1993; it was discovered in 1995 (due to investigation by county attorney prosecuting plaintiff for driving after having been certified as an Habitual Offender) that the Order had incorrect name and file number; plaintiff was then served with a correct Order in October of 1995; court held "the order with which he was served, even though containing an incorrect name, notified the Plaintiff: 1) not to drive until the privilege was restored in writing; 2) of the penalty for driving after having been certified as an habitual offender; 3) and the period of time for which Plaintiff's license was revoked. The order thus met the notice requirements of Saf-C 205.04".
Lavigne v. Turner, 94-E-271, (Merrimack, McGuire, 12/19/94) AFFIRMED
Certified as an Habitual Offender; contested two convictions; one was as a result of a nolo plea; the other was a result of a default in a plea-by-mail situation; court held that "defendant did not appeal these convictions or move to strike the default. They are all valid convictions for the purposes of the habitual offender statute"; court also determined that the fact the judge may not have signed a form was a technicality which would not change result.
Alcorn v. Turner, 94-E-287, (Merrimack, Arnold, 12/5/94) AFFIRMED
Certified as an Habitual Offender; claimed that pleas made in three Vermont convictions were not knowingly made as he was unaware of impact on his habitual offender status in New Hampshire; court held that "petitioner's right to operate in Vermont was not impacted in these pleas, nor does petitioner suggest that his counsel at the time the pleas were entered was obligated to advise the petitioner of the consequences of these pleas as they might affect his right to operate in the other forty-nine jurisdictions within the United States in which the petitioner might subsequently find himself a resident". (NOTE: This written opinion also deals with discretion of a Hearings Examiner in a Habitual Offender hearing!)
Chase v. Turner, 93-E-606, (Merrimack, Manias, 3/23/94) AFFIRMED
Certified as an Habitual Offender; claimed that first conviction was outside of the five-year window (violation date was 9/17/88 and administrative hearing occurred on 9/30/93); court held that "the five-year window does not date backward from the date of the administrative hearing … it dates from the date of the first offense used to five years after that date", citing RSA 259:39; plaintiff also argued that certain convictions had already counted against him in an earlier habitual offender proceeding so should not be used again; court held that "re-use of convictions for purposes of habitual offender proceedings does not violate the statute or constitution", citing RSA 262:18, State v. Bowles and State v. Vashaw. (NOTE: This written opinion also deals with single incidents and whether they should be counted separately; very fact-specific to this case!)
Linch v. Turner, 93-E-504, (Merrimack, McGuire, 2/24/94) AFFIRMED
Certified as an Habitual Offender; plaintiff only contested length of license suspension (18 months) NOT underlying convictions; "although the Court finds that the loss of petitioner's license causes particular hardship to him, it does not find that the length of suspension is in any way unreasonable or arbitrary".
Hlavonova v. Turner, 93-E-487, (Merrimack, Arnold, 11/9/93) AFFIRMED
Certified as an Habitual Offender; argued that certification was based upon some convictions that had already been used against her in an earlier proceeding (point system) and that suspension was unreasonably harsh (two and a half years); court upheld certification, citing only RSA 262:25.
Arroyo v. Turner, 93-E-465, (Merrimack, Arnold, 10/20/93) AFFIRMED
Certified as an Habitual Offender; argued that there were mitigating circumstances which should cause court to set aside the certification; court stated "the standard of review of this Court as set forth in RSA 262:25 does not give the Court discretion to entertain the Appellant's arguments".
Jordan v. Turner, 93-E-171, (Merrimack, Smukler, 10/8/93) AFFIRMED
Certified as an Habitual Offender; plaintiff contested one conviction for Operating After Revocation on the basis that he had attempted to get his license reinstated prior to the date of the offense but had used the wrong form; plaintiff indicated that he thought he was restored when he drove on that date; court determined that plaintiff had pled nolo to the charge; "the conviction could have been attacked by means of an appropriate pleading filed at the District Court or through an appeal; it could not be collaterally attacked at the habitual offender certification proceeding", citing State v. Canney; "the respondent was entitled to rely upon a valid conviction". (NOTE: see Whitaker v. Turner, 93-E-270, (Merrimack, Smukler, 8/13/93) same facts and same decision entered!!!!)
Leslie v. Turner, 93-E-290, (Merrimack, Smukler, 8/9/93) AFFIRMED
Certified as an Habitual Offender; contested out-of-state conviction for Operating To Endanger (in the state of Maine), which was used to certify as an Habitual Offender; plaintiff argued that it was not functionally equivalent to any offenses in the state of New Hampshire; respondent argued it was functionally equivalent to the offense of Reckless Operation (RSA 265:79); court determined that "the conduct necessary for a conviction under 29 MRSA 1314 does not satisfy all the elements of RSA 265:79", so it was not the functional equivalent and should not have been used to certify plaintiff as an Habitual Offender. (NOTE: this is a very detailed written opinion!)
Glazier v. Turner, 93-E-58, (Merrimack, O'Neill, J. , 6/17/93) AFFIRMED
Certified as an Habitual Offender; only argument was that he was certified upon the date of the hearing (1/7/93) when it was apparent that he had not operated a motor vehicle since 12/5/91; plaintiff argued that certification should have been backdated to 12/5/91; court held that revocation can be "… effective upon the date of the order or upon the date of final conviction of the offense that resulted in certification ", citing RSA 262:19 III; "the plaintiff has not provided any basis upon which to vacate the order of the director".
Savage v. Turner, 93-E-168, (Merrimack, McGuire, 6/1/93) AFFIRMED
Certified as an Habitual Offender; date of last conviction was 1/4/93; certified on 3/11/93; plaintiff argued that violation dates were all in 1989 and earlier; court held that "even if the date of offense, and not that of conviction, were the operative fact, petitioner's due process and equal protection rights would not be violated by certifying her as a habitual offender in March 1993, three and a half years after her last offense", citing State v. Lemire.
Young v. Turner, 93-E-101, (Merrimack, Manias, 6/3/93) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that one conviction used to certify him was on appeal to the Supreme Court and therefore, should not have counted against him; court held that plaintiff failed to set forth any statutory argument or case law in support of that position and determined that "if the legislature intended to exclude convictions on appeal from those convictions which could be relied upon for habitual offender certification it would have expressly done so"; plaintiff challenged two other convictions used to certify him as abstract on one conviction had not checked off finding of guilt and abstract on other conviction improperly identified the offense date as 5/13/88 and not 4/13/88; court held "the defects in the underlying documentation are mere irregularities which do not undermine the validity of the underlying convictions". (NOTE: this is a very detailed written opinion, citing case law from several New Hampshire cases!)
Duffy v. Turner, 93-E-56, (Merrimack, O'Neill, J. , 5/10/93) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that three convictions should not have been used to certify him as he had pled nolo to all three charges, relying upon RSA 605:6; respondent relied upon RSA 262:19; court held that "when interpreting two statutes that deal with a similar subject matter, the Court must construe same so that they do not contradict each other and will lead to reasonable results and effectuate the legislative purpose of the statute[s]"; "the construction urged by the Petitioner would lead to the absurd result of removing all nolo contendere convictions consideration in all habitual offender proceedings". (NOTE: this is a very detailed written opinion!)
Donovan v. Turner, 93-E-3, (Merrimack, Smukler, 3/19/93) AFFIRMED
Certified as an Habitual Offender; plaintiff claimed that use of out-of-state convictions was unlawful; although he appeared pro se at certification hearing, court determined that he never challenged the use of those convictions at that time and in fact, admitted that those convictions were his, thus were properly used to certify him as an Habitual Offender.
Oliver v. Turner, 93-E-724, (Merrimack, Manias, 3/22/93) AFFIRMED
Certified as an Habitual Offender; plaintiff argued that conviction for Operating Under the Influence in the state of Maine should not have been used to certify him as he did not knowingly and voluntarily plead guilty to that offense; court held that the Hearings Examiner had given plaintiff the opportunity to go back to Maine and challenge the conviction which plaintiff refused; Hearings Examiner then corresponded with the court clerk in Maine who advised him that standard operating procedure includes one en masse arraignment with a reading of rights prior to the call of the list and a second reading of rights when each individual case is called; court could not conclude "from these facts that the hearing officer's determination that Mr. Oliver was advised of his rights, voluntarily waived counsel and knowingly pleaded guilty was either unreasonable or illegal"; plaintiff also stated that Operating Under the Influence in Maine was not the functional equivalent of DWI in New Hampshire; court did not agree.
Doncaster v. Turner, 92-E-684, (Merrimack, Smukler, 3/5/93) AFFIRMED
Certified as an Habitual Offender; argued that out-of-state convictions for Operating After Suspension should not have been used; court stated that RSA 262:19 V explicitly authorizes the use of out-of-state convictions and there was no claim that the offenses used were not on that list; plaintiff also argued that certification was hardship and that DMV refused to give him another hearing to address the issue; "the Court is sympathetic to the plight of the plaintiff, but cannot on this record find that the defendant's decision not to allow a further hearing for presentation of this issue was unlawful or unreasonable".
Bean v. Turner, 92-E-280, (Merrimack, McHugh, 10/15/92) AFFIRMED
Certified as an Habitual Offender; "the Court finds that justice requires that the starting date for the penalty should not be the date of the hearing, to wit, April 17, 1992, but rather should be the date of the defendant's last speeding conviction which was January 9, 1992"; remanded the case back to DMV.
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II. Habitual Offender Defaults
Hammell v. Beecher, 98-E-355, (Merrimack, McGuire, 12/7/98) AFFIRMED
Certified as an Habitual Offender after defaulting the scheduling hearing; plaintiff found guilty of Operating While Deemed An Habitual Offender and argued that he should not have been defaulted because he was incarcerated at time of scheduled hearing; court held that "… having failed to appeal an habitual offender certification, the habitual offender cannot collaterally attack the determination … the Court finds that Petitioner failed timely both to appeal and to petition to re-open the case", citing State v. Grondin and State v. Canney.
Castricone v. Turner, 93-E-372, (Merrimack, Smukler, 8/13/93) AFFIRMED
Certified as an Habitual Offender after defaulting the scheduled hearing; plaintiff had requested continuance of a hearing which was granted and rescheduled for 6/7/93; plaintiff failed to appear and on 6/16/93, plaintiff advised that he thought hearing had been scheduled for 6/17/93; plaintiff argued that new hearing should have been scheduled; "the Court cannot find on these facts that the respondent was compelled to grant a further hearing".
Willett v. Turner, 92-E-233, (Merrimack, Coffey, 5/27/92) AFFIRMED
Certified as an Habitual Offender after defaulting the scheduled hearing; plaintiff argued that four-year penalty was too harsh because of job considerations; court stated "plaintiff was well aware of the potential consequences of his failure to appear at said hearing … there is nothing unlawful or unreasonable in the actions of the hearings examiner".
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III. Habitual Offender Decertification
Morrison v. DMV, 217-2011-CV-00470, (McNamara, 9/6/11), AFFIRMED
Appeal of denial of decertification. Petitioner had 2 convictions for HO during certification period. Decertification rule provided authority for denial due to driving, and therefore, reasonable and lawful.
Barnes v. Beecher, 09-E-0226, (McNamara,11/24/09), AFFIRMED
Habitual offender decertification. Appeal filed because decertification denied under provision for not being free of incarceration for 6 months due to pending HO case where Petitioner will be incarcerated. Summarily upheld as reasonable application of rule.
Flores v. State of NH, 09-E-0239, (Brown, 8/7/09), AFFIRMED
Habitual offender decertification. Appeal of imposition of implied consent suspension. Summarily upheld.
Markham v. State of NH, 09-E-0250, (Sullivan, 9/28/09), AFFIRMED
Habitual offender decertification. Appeal of imposition of implied consent suspension. Summarily upheld.
Roscoe v. Beecher, 09-E-0191, (Conboy, 07/21/09), AFFIRMED
Habitual offender decertification. Decertification denied due to driving while certified. Consecutive implied consent suspension due to a refusal for a DWI offense that occurred during the certification period. Court held that Petitioner failed to sustain his burden of proof that hearings examiner acted illegally with respect to jurisdiction, authority or observance of law. Petitioner committed multiple driving offenses while certified. Court did not address Petitioner's argument that implied consent suspension should have been backdated to run after the court ordered DWI suspension because that issue was not before the court since decertification was properly denied.
Bly v. Beecher, 09-E-0081, (Merrimack, Conboy), 05/04/09, REVERSED
Habitual offender decertification. Petitioner disputed imposition of implied consent suspension effective the date of decertification. Petitioner argued that she was given incorrect information by the Department of Motor Vehicles that she could not apply for a decertification hearing until after the implied consent suspension term. Appeal filed 8 months late. At habitual offender hearing, Petitioner given an order and hearing report which informed her of the implied consent suspension, that it could not be served until after decertification, and giving her the date of eligibility to apply for decertification. Director moved to dismiss as untimely. Court held that the use of the word may in the appeal statute gave the court discretion to hear the appeal. Court held that it was inequitable to sustain the license suspension. Court gave equitable relief due to the DMV providing incorrect information. Motion to reconsider filed.
Sargent v. DMV, 08-E-0383, (Merrimack, Conboy, 02/10/09), AFFIRMED
Habitual Offender Decertification. Denied due to respondent driving in violation of habitual offender order. Convicted of Habitual Offender offense. Did not dispute that he had violated the order. Argued that he desperately needs his license due to personal circumstances. Court upheld and reasoned that the Hearings Examiner did not act unreasonably or unlawfully. Hearings Examiner properly followed RSA 262:24 and Saf-C 206.06. Therefore, examiner did not act illegally with respect to jurisdiction, authority, or observance of law.
Wilson v. Beecher, 08-E-0382, (Sullivan, Merrimack, 01/12/09), AFFIRMED
Appeal of habitual offender decertification. Respondent decertified. Un-served implied consent suspension imposed upon decertification. Argued that he should have automatically been given credit towards the suspension time at the time that he was eligible by time frame to be decertified, after 4 years. Respondent was eligible to apply for decertification in 2005 but waited until 2008. Court noted that Hearings Examiner at certification hearing informed Respondent that he would only receive credit on the suspension after decertification. Court held that this application of the implied consent law is consistent with NH law, DMV rules, regulations, and practice, and therefore, reasonable. Implied consent time may only run after decertification, regardless of actual time due to indefinite nature of habitual offender order.
Clifford v. Berube, 07-E-0372, (Merrimack, Mangones, (12/06/07) AFFIRMED
Petitioner's request for decertification by mail was granted after review because she had provided five letters certifying to her abstinence and AA attendance. She appealed complaining about the imposition of the pending 497 day implied consent refusal suspension. Court ruled that the Hearings Examiner did not act unreasonably or unlawfully in ordering the implied consent suspension because it was non-discretionary.
Kennett v. Beecher, 07-E-0025, (Merrimack, Sullivan, 03-27-2007) AFFIRMED
Certified as Habitual Offender and requested decertification. Decert was denied because of driving in violation of order. Petitioner claimed he should be allowed decertification because he completed all requirements set forth by hearing examiner. Court found the order was a reasonable denial because of the operation.
McCarthy v. Beecher, 04-E-116, (Merrimack, Lewis, 07/21/04) State's Motion to Dismiss GRANTED
Petition for Injunction; Petitioner certified as an Habitual Offender; wants to request a hearing, but fears that his request will be denied because he has been incarcerated and will not be released in time pursuant to Saf-C 206.06 (f)(8). HELD: Petitioner is not entitled to an injunction because he has not exhausted his administrative remedies. He has neither been denied a hearing nor de-certification.
Henrickson v. Beecher, 03-E-380, (Merrimack, Houran, 02/26/04) AFFIRMED
Denied de-certification, Petitioner alleges two Hearings Examiner's misled Petitioner into believing that the de-certification hearing was just a formality. "Court fails to see: how either of the Hearings Examiner's misled … into believing that the de-certification hearing was just a mere formality. "The Hearings Examiner's decision was based upon the evidence presented at the hearing; Petitioner has failed to "prove that the Director acted illegally with respext to jurisdiction, aurhority, or observance of law."
Sorensen v. Beecher, 03-E-421, (Merrimack, McGuire, 01/20/04) AFFIRMED
Certified as an Habitual Offender; denied de-certification because the Hearings Examiner disapproved alcohol evaluation. Court held: Based upon Petitioner's record and the heavily contigent nature of the evaluation the Hearings Examiner's decision was reasonable and lawful.
Perry v. Beecher, 03-E-210, (Merrimack, Fitzgerald, 08/13/03) AFFIRMED
Motion To Dismiss Petition for Extraordinary Writs; GRANTED; Petitioner certified as an Habitual Offender; has a previous refusal; questioned the imposition of a 2-yr additional suspension after decertification. Court held: Petitioner is entitled to neither a writ of habeas corpus nor a writ of mandamus; the Hearings Examiner's decision to impose the balance of the implied consent suspension was mandated by statute.
Davis v. Beecher, 01-E-337, Merrimack, McGuire, 11/14/01) AFFIRMED
Plaintiff certified as an Habitual Offender, denied decertification; court held that "… Mr. Davis was driving in this state with a New York license several years after having become eligible to be decertified and having failed to do so. Highway safety concerns are further evidenced by the requirement that Mr. Davis obtain an updated evaluation from a CADAC (in light of three DWI convictions in the late 1980's) before his next decertification hearing."
Millar v. Beecher, 01-E-167, (Carroll, Nadeau, 11/6/01) AFFIRMED
Certified as an Habitual Offender; petitioner had a previous REFUSAL and questioned the implied consent law mandating a 2-year additional suspension after decertification; court held it "has no discretion to review the decision of the Division in this case since a license suspension for a refusal to submit to a breath test must run consecutively to any other license suspension";"petitioner failed to appeal the finding that she had refused the breath test at the time that decision was rendered and cannot do so now." (NOTE: Section 8, VI MISCELLANEOUS)
Davis v. Beecher, 01-E-277, (Merrimack, McGuire, 9/25/01) AFFIRMED
Plaintiff certified as an Habitual Offender; denied decertification; plaintiff claimed his driving after certification as an Habitual Offender "should not have been considered because he had merely been arrested at that point and not convicted of the charge". Court held: "that the administrative rule requires that the hearings examiner find whether the petitioner drove during his certification period and does not require that the petitioner be convicted of such a charge. Because this is a civil case, the finding is by a balance of the possibilities". AFFIRMED
Lepine v. Beecher, 99-E-212, (Merrimack, Manias, 6/24/99) AFFIRMED
Plaintiff certified as an Habitual Offender; denied decertification because he drove on multiple occasions during the period of revocation; plaintiff claimed that Hearings Examiner failed to take into account a letter from Farnum Center regarding his alcohol abuse problem, the fact that none of the convictions were alcohol or drug-related and that criminal sanctions had already been imposed for his conduct; "It is reasonably clear from review of the hearing examiner's decision that the petitioner's request for decertification was denied because he drove on multiple occasions during the period of revocation and not, as the petitioner suggests, because he failed to consider other mitigating factors"; court also held that there was no evidence to suggest that Hearings Examiner failed to consider those mitigating factors in rendering his decision and that the letter from the Farnum Center was not the type of evaluation contemplated by the Hearings Examiner to meet decertification.
Forlizzi v. Beecher, 99-E-135, (Merrimack, Nadeau, 4/30/99) AFFIRMED
Plaintiff certified as an Habitual Offender; denied decertification in 1996 because he drove a vehicle during period of decertification; plaintiff requested another decertification hearing and was denied; court held that "… the Hearings Examiner did not automatically deny decertification … the Hearings Examiner properly exercised discretion and considered not only the petitioner's driving record but his failure to complete an alcohol abuse program in determining that decertification was not proper".
Potts v. Beecher, 98-E-487, (Merrimack, Nadeau, 4/6/99) AFFIRMED
Plaintiff certified as an Habitual Offender in 1996 for four years with right to review for early decertification after one year; two days after having been certified, plaintiff drove a motor vehicle; plaintiff denied request for early decertification on that basis; court held that "Specifically, NH Admin. Rule Saf-C 206.06(h)(2) states that habitual offenders who have driven during their period of revocation and certification shall not qualify for early review of their habitual offender status and must wait until the original period of certification has expired to request decertification. In this case, the petitioner drove only two days after having been certified. Thus, the hearings examiner was prevented from considering his petition".
Gouette v. Beecher, 96-E-129, (Merrimack, Smukler, 6/17/96) AFFIRMED
Plaintiff certified as an Habitual Offender in 1985; subsequently suspended one year for implied consent; denied decertification in 1991 and applied again in 1994 but hearing never held since postponed at plaintiff's request; decertification hearing held in 1996 and plaintiff requested retroactive application of reinstatement to 1994 (the date he would have been eligible for reinstatement had he pursued his 1994 application for decertification); Hearings Examiner granted request for decertification effective January 30, 1996; court agreed that Hearings Examiner lacks discretion to allow retroactive decertification; "while the cited authority vests some degree of discretion in the respondent, the discretion claimed by the petitioner is absent. Moreover, the discretion claimed by the petitioner … would frustrate an express legislative purpose - that the implied consent revocation not run concurrently with any other license suspension or revocation".
Richo v. Beecher, 96-E-36, (Merrimack, Arnold, 4/10/96) AFFIRMED
Plaintiff certified as an Habitual Offender but relocated to Florida and got a valid license; returned to this state and was arrested for driving after having been certified as an Habitual Offender; acquitted of charge; decertification denied as he drove during the period of certification; plaintiff argued that he could not be denied decertification because he had been acquitted of charge and was unaware that he could drive in this state because he had a valid Florida license; court disagreed, stating that "petitioner confuses evidence of driving with evidence of a criminal conviction for operating as an habitual offender" and "… the petitioner was instructed on his certification as an habitual offender on July of 1990 that his New Hampshire driver's license or privilege to drive in New Hampshire would remain revoked until such time as the petitioner received written restoration of his driver's license …".
Fazio v. Beecher, 95-E-344, (Merrimack, McGuire, 12/18/95) AFFIRMED
Plaintiff drove a motor vehicle during the period of certification and as a result, decertification was denied for four years, with the ability to petition for further review in one year; plaintiff argued that he drove AFTER his actual period of certification had expired and the only reason he had not been decertified earlier was because of outstanding defaults; court held "by the petitioner's own admission, he drove while certified as an habitual offender. That this driving occurred beyond the four-year period during which he could not apply to be decertified is of no import. Petitioner still had not been decertified as an habitual offender at that point".
Legner v. Turner, 95-E-51, (Merrimack, Arnold, 4/3/95) AFFIRMED
Plaintiff's certification extended for a period of one year due to failure to complete alcohol education requirement; plaintiff claimed that he was not advised that his status would remain in full force and effect at the hearing; court concluded that it was accurately reflected in dispositional portion of Hearings Examiner's report, which was issued subsequent to the hearing.
Grondin v. Turner, 94-E-242, (Merrimack, Arnold, 12/2/94) AFFIRMED
plaintiff drove a motor vehicle during the period of certification and as a result, decertification was denied for one year; plaintiff argued that he lacked the mens rea to conclude that he "knowingly" drove and that the hardship suffered demanded reinstatement; court determined that plaintiff "knowingly" operated a motor vehicle "with full knowledge that his license was under suspension"; "the Court, moreover, finds statutory and administrative rules support the denial of the petitioner's decertification petition and is not persuaded that equity requires the relief requested …".
Gray v. Turner, 94-E-241, (Merrimack, Arnold, 10/25/94) AFFIRMED
plaintiff drove a motor vehicle during the period of certification and as a result, decertification was denied for four years, with the right to another hearing after one year; plaintiff argued that the Court should modify the decision of the Hearings Examiner under the court's broad equity powers; "the Court finds statutory and administrative rules support the denial of the plaintiff's decertification petition. The Court, moreover, is not persuaded that equity requires the relief requested …".
Bittner v. Turner, 94-E-35, (Merrimack, McGuire, 3/14/94) AFFIRMED
plaintiff drove a motor vehicle during the period of certification and as a result, decertification was denied for nine months; court held that "by the time of the November 2, 1993, hearing, plaintiff had been convicted in the Strafford County Superior Court on February 26, 1993, for driving while being certified as an habitual offender", citing Saf-C 205.06(b)(2) and (3).
Martin v. Turner, 93-E-198, (Merrimack, Sullivan, 6/14/93) AFFIRMED
plaintiff drove a motor vehicle during the period of certification and as a result, decertification was denied for eight months; "the court finds that where the plaintiff admittedly drove near the end of her revocation period and had operated a motor vehicle after revocation six or seven times prior to having been declared an habitual offender, the decision of the director not to decertify for a period of at least eight additional months was reasonable".
Baker v. Turner, 92-E-190, (Merrimack, Manias, 5/12/92) AFFIRMED
plaintiff drove a motor vehicle during the period of certification and as a result, decertification was denied for four years; plaintiff argued that the four years should have started on the date of his last conviction (10/6/90) and not the date of the hearing (3/2/92); court held that "in this case, the Director could have made the effective date of further revocation October 6, 1990. However, he chose not to do so. Nevertheless, the Director has not exceeded his authority pursuant to the regulations cited above", citing Saf-C 205.07 and 205.08. (NOTE: This is the same Baker that has Supreme Court case in his name!!!!)
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