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Compendium
Superior Court Cases

Procedural Issues Involving ALS Cases
 
I. (a) Sworn Report II. (b) Hearing Conducted After 20 Days IV. Collateral Estoppel/Double Jeopardy
I. (b) Issues Regarding Pink Copy of ALS Form II. (c) "Good Cause" for continuance V. Procedural Issues Pertaining to Conduct of Hearing
I. (c) Miscellaneous II. (d) Copy of Recording VI. Appeals
II. (a) Decision Within 15 Days III. Hearing Requested at DMV Beyond 30-Days VII. Miscellaneous
 
I. DSMV 426 Form/ALS Form
A. Sworn Report
 
Weisiger v. Beecher, 09-E-0319, (Smukler, 12/30/09), REVERSED
ALS test over. Police submitted a police report before the hearing. During the hearing, the State did not ask that the report be admitted into evidence. Hearings Examiner did not take official notice of report or inform parties that it would be considered. Report contained an admission of the Petitioner that officer did not testify to during the hearing. Hearings Examiner considered police report and admission. Petitioner alleged insufficient evidence of reasonable grounds without admission and that it constituted a due process violation for information in police report to be considered. Court held that Hearings Examiner impermissibly relied on non-record evidence. Therefore, such constituted a violation of the Administrative Procedure Act, RSA 541-A:33, VI because the statute requires parties to be placed on notice as to what evidence will be considered at an administrative hearing. Due to finding a statutory violation, Court did not consider constitutional due process violation. Because Hearings Examiner's report gave considerable weight to admission, and that he should not have considered it, case reversed rather than remanded.
Wheeler v. Beecher, 08-E-0390, (Merrimack, Nicolosi, 2/20/09), REVERSED
ALS refusal. Respondent arrested at a sobriety checkpoint. Argued that the Department lacked jurisdiction because one officer requested a blood test, and another officer signed the form indicating that the test had been requested and refused by the Respondent. The officer who signed the form did not testify at the hearing. Issue was one of proof as to whether officer who signed the form had information that the first officer had read the ALS rights, requested the blood test and that the Respondent refused. No evidence on that admitted at hearing. Court held that it was unreasonable for the hearings examiner to conclude that the officer had properly sworn to the DSMV 426 form because it was not proper to infer that officer signing form had knowledge that first officer requested test and that Respondent refused where there was no evidence on that introduced at the hearing. Therefore, the Department had no jurisdiction because the form was not properly sworn to. The officer who requests the test and signs the DSMV 426 form must appear and testify at the ALS hearing in order to establish jurisdiction.
Gould v. Beecher 05-E-606, (Rockingham, Morrill, 03/03/06) AFFIRMED
Petitioner challenged jurisdiction and alleged the officer's report was not properly sworn because it did not contain Petitioner's correct date of birth. The officer wrote the incorrect date, but it was corrected before arriving at DMV and entered properly. Nobody knew who made the correction and the officer did not make it. The Court held that it was proper to rely on the ALS form submitted even though it had a scrivener's error and noted that the Petitioner's correct name and address was on the ALS form. (See also Section IIB, Hearing Conducted After 20 days)
Seaverns v. Beecher ,05-E-387, (Merrimack, Fitzgerald,12/21/05) AFFIRMED
Arrested for DWI; Petitioner challenged jurisdiction and alleged the officer's report was not properly sworn because it had been impermissibly altered after it was sworn rendering it invalid on its face; the officer had written 6/5/04 in one spot when he should have written 6/5/05. The correct date was written in several other places on the ALS form. Nobody knew who altered the form and the officer did not alter it himself. The Court held that the requirement for a sworn report only applies to Paragraph V. Also it held that it was proper to rely on the ALS form submitted even though it had a scrivener's error.
Perri v. Beecher, 05-E-161, (Strafford, Fauver,10/14/05) AFFIRMED
Petitioner appealed alleging there was no sworn report as required by Saf-C 2801.05, because the Hearings Examiner had incorrectly recorded the date of the swearing (once) even though it was correct on the ALS form and also that the Hearings Examiner had incorrectly referred to the Trooper's name (once) in the report. The Court agreed that this was simply a scrivener's error and that the Hearings Examiner properly found that there was jurisdiction.
Ouellette v. Beecher, 04-E-598, (Rockingham, McHugh, 03/14/05) VACATED
Plaintiff claimed that case should be dismissed because the ALS form was not properly sworn; "The thrust of the plaintiff's appeal is that because the arresting officer did not clearly indicate the identity of the JP or notary before whom he swore his oath on the DSMV426 form that it was deficient. At the hearing the trooper had no specific recollection, but stated that he followed his usual procedure. The Court agreed with the Petitioner and dismissed the case.
Kalcic v. Beecher, 03-E-439, (SD Hillsborough, Hicks, 02/27/04) AFFIRMED
Arrested for DWI; Petitioner challenged jurisdiction and alleged the officer's report was not properly sworn; and that the officer could not identify by name the person before whom he took his oath. Court held: Absent a transcript, after reviewing "the Hearings Examiner's report it is apparent that numerous factual findings support the action taken by the Director."
Rainville v. Beecher, 02-E-192, (Belknap, Smukler, 2/19/03) AFFIRMED
Arrested for DWI; Petitioner challenged jurisdiction and alleged the officer's report was not properly sworn. Hearings Examiner took issue under advisement and heard the case on the merits.Petitioner challenged the Hearings Examiner violated rule by not immediately deciding jurisdictional issue pursuant to Saf-C2804.05, and erred in finding report properly sworn. Court held: the court … affirm the respondent's decision because the petitioner has failed to allege that he was prejudiced … and that the report was "… submitted … and signed by a notary public before whom the … officer personally appeared and recognized his … obligation to tell the truth …"
Perry v. Beecher, 02-E-214, (SD Hillsborough, Hicks, 10/28/02) AFFIRMED
Arrested for DWI, Petitioner claimed that the DMV did not have jurisdiction because the DSMV 426 form was incomplete; the form was not a "sworn report" as stated in RSA 265:91-a I, and as defined in Saf-C 2081.05; maintaining when the officer filled out the form, he did not check any of the boxes in Section V. Court held: Sections I and II both indicate the reason for the suspension and were completed prior to the officer swearing before the Justice of the Peace; "…a mere procedural technicality will not invalidate a Hearings Examiner's reasonable finding of jurisdiction"; "…the officer's failure to do so does not divest the State of jurisdiction over a statutory ALS appeal".
Hubbell v. Beecher, 02-E-25, (Rockingham, Abramson, 7/11/02) AFFIRMED
Arrested for DWI; refused test; ALS form provided to petitioner not sworn; sworn report sent to DMV; alleges it was error not to provide sworn report to petitioner; Held: purpose of providing ALS form to petitioner is to serve notice of suspension; that purpose was accomplished. Statute only requires that sworn report be provided to DMV. (NOTE: cross-reference to Section 10, I,C Miscellaneous)
Johnson v. Beecher, 02-E-50, (Merrimack, McGuire,7/1/02) AFFIRMED
ALS form submitted, officer's report (Section V) properly sworn; but, officer did not enter the BAC test results or check block indicating he submitted to a test in Section V; however, BAC results were listed in Section II. Court held: although there was technical error, the ALS form, taken as a whole, "was a sworn report giving the Department of Safety jurisdiction over the case." (NOTE: cross-reference Section 9, II Certification/Accuracy of Chemical Tests)
Schaldenko v. Beecher, 01-E-321 (SD Hillsborough, Hicks, 1/4/02) AFFIRMED
Plaintiff claims that the case should be dismissed because the Justice of the Peace who took the police officer's oath, cannot take the oath of his fellow officer as to the truth of the information contained in the ALS form; court held that "… unlike Coolidge where constitutional rights were implicated, this case involves a civil matter;" the court also held that … "Coolidge is inapplicable here and agrees with the Hearings Examiner's finding that the "neutral and detached magistrate" requirement is not applicable to ALS forms." (NOTE: cross-reference, Section 8, I Informing of ALS rights; Section 7 I, Factors Determining Probable Cause)
Hall v. Beecher, 01-E-334, (SD Hillsborough, Galway, 10/15/01) AFFIRMED
Petitioner claimed that the officer's report in Section V of the ALS form had not been sworn to at the time the officer served him with the copy of the form; RSA 265:91-a does not require the officer to provide a sworn copy of the notice of the suspension to the party, only to the department. Court held: that the Hearings Examiner's decision to deny the petitioner's motion for error was not unreasonable or unlawful. (NOTE: cross-reference Section 9, I, 20-minute observation period and Section 9, II certification/accuracy of Intoxilyzer 5000)
Harrington v. Beecher, 01-E-100, (Merrimack, Fitzgerald, 5/9/01) AFFIRMED
Petitioner alleges the DOS lacks jurisdiction to suspend his driver's license because the officer failed to have the petitioner's ALS form notarized at the same time he signed it. Court held:"Because affixing the affiant's signature in the presence of the oathtaker is an "other ceremony", it is not required. Finally, if the legislature had intended to require a police officer to sign his or her sworn statement contemporaneously with swearing to it, the legislature could have said so, but did not."(NOTE: Section 6, Issues Involving Illegal Detentions)
Moran v. Beecher, 00-E-268, (Merrimack, McGuire, 2/20/01) AFFIRMED
Petitioner refused test; ALS form completed indicating refusal; later, petitioner changed his mind, took breath test; ALS form served on petitioner indicated refusal; not yet sworn.Later, police officer realized mistake, sent corrected, sworn, ALS form indicating test results to DMV and copy to petitioner; petitioner never received copy. Petitioner alleged no jurisdiction because improper form served on petitioner; and it was not sworn. Court held: Pursuant to RSA 265:91-a (Supp. 2000), the officer was only required to "submit a sworn report to the department" … Concerning service to …,Officer … was only required to "serve immediate notice of suspension on [his] person …" RSA 265:91-a, III. (NOTE: cross-reference Section 9, II Certification; Section 9, V Independent Tests; Section 8, I Informing ALS rights)
Flewelling v. Beecher, 98-E-410, (Merrimack, Manias, 3/1/99) AFFIRMED
Plaintiff claimed that case should be dismissed because police officer signed the ALS form and later swore to it in front of JP; "RSA 265:91-a, I does not require the officer's report to be signed in front of a Notary Public or a Justice of the Peace, but only that it be ‘sworn'. Accordingly, the hearings examiner's determination that Trooper Curran acknowledged his signature and swore to the contents of the report satisfies the requirements of the statute". (NOTE: cross-reference to Section III of grounds for stop; actual physical control and Section I of probable cause)
Kirwin v. Beecher, 98-E-687, (Rockingham, Abramson, 2/16/99) AFFIRMED
Plaintiff claimed that case should be dismissed because the ALS form was not properly sworn; "The thrust of the plaintiff's appeal is that because the arresting officer, Trooper Graham, could not remember the identity of the person before whom he swore his oath that the information in the DSMV426 form was true, that he somehow violated the ‘regulations', without citing those regulations, nor providing them to the Court … After reviewing the arresting officer's testimony relative to his oath on the DSMV426 form, the Court agrees it was reasonable for the hearings officer to find as he did".
Hurd v. Beecher, 98-E-281, (Merrimack, Manias, 12/18/98) AFFIRMED
Plaintiff claimed that case should be dismissed because, although sworn, the police officer did not sign the ALS form and had to resubmit signed ALS form to the Department of Safety, six days after original submission; court held that "… RSA 265:91-a does not require a law enforcement officer to sign an ALS report, nor does the Court find that Due Process protections under either the State Constitution or RSA 265:91-a impose such a requirement. Moreover, as the Hearings Examiner noted, any possible defect in procedure would have been cured when Trooper Macfadzen submitted a signed supplemental ALS form to the Department six days after the appellant's arrest".
Desilets v. Beecher, 98-E-478 (Rockingham, Coffey, 12/8/98) AFFIRMED
Plaintiff claimed that case should be dismissed because police officer did not know if secretary swearing to ALS form was a JP or Notary Public; "… Martin testified that he was unable to remember whether Chapman specifically stated that she was a justice of the peace, notary public or both when he swore to the ALS form. However, Martin also testify that he has sworn to documents before Chapman on several occasions. Thus, the evidence demonstrates that Chapman has repeatedly held herself to be an individual who is able to attest to documents, i.e., a notary public, justice of the peace, or both". (NOTE: cross-reference to Section V, below)
LaBonte v. Beecher, 98-E-149, (Rockingham, Galway, 7/21/98) AFFIRMED
Plaintiff claimed that case should be dismissed because ALS form was not properly sworn; "… Officer Cawley testified that when he appeared before the Justice of the Peace he ‘swore to each page, the entire report, everything separately and altogether, with my right hand up, raised' and that he ‘swore to the truth' … consequently, the DMV had jurisdiction over this matter", citing State v. Sands. (NOTE: cross-reference to actual physical control section)
Drake v. Beecher, 97-E-546, (SD Hillsborough, Dalianis, 1/21/98) AFFIRMED
Plaintiff claimed that case should be dismissed because ALS form was not properly sworn; "The record indicates that Forsley raised his right hand and stated that the information contained in his report at issue was true to the best of his knowledge. The Court finds and rules that the hearings examiner's determination that these actions were sufficient to qualify the report as a sworn report was neither unjust nor unreasonable", citing State v. Sands. (NOTE: cross-reference to Section I of grounds for stop and illegal detention)
Vicaire v. Beecher, 97-E-68, (Coos, Smith, 10/20/97) AFFIRMED
Plaintiff claimed that case should be dismissed because police officer failed to observe formality of raising right hand when swearing to ALS form; court held that "the purpose of swearing or affirming statements made in official proceedings is to ensure that an affiant consciously recognizes his legal obligation to tell the truth … the statutory authority cited by Petitioner does not require rigid adherence to the formality of an affiant's raising of his right hand to be fully sworn", citing RSA 516:19 and State v. Sands; court concluded that there was no evidence in the record to show that "… the arresting officer did not have the requisite awareness of his obligation to tell the truth … or that the oath as administered did not put the officer on notice of the penalties that might be imposed upon him for making false statements".
Law v. Beecher, 97-E-269, (Rockingham, Murphy, 10/8/97) AFFIRMED
Plaintiff claimed that case should be dismissed because police officer signed the ALS form and later swore to it in front of JP; court held that "plaintiff's argument that the form is therefore inadmissible is rejected. The fact that the acknowledgment may have been improper does not go to the issue of its admissibility. Moreover, rules of evidence do not apply in administrative hearings, and it is within the discretion of the hearings officer to receive any documentary evidence", citing RSA 541-A:33.
Haskell v. Beecher, 96-E-303, (Merrimack, Manias, 2/10/97) AFFIRMED
Plaintiff claimed that case should be dismissed because police officer did not submit sufficient sworn information to allow DMV to suspend his license; court held that "… the arresting officer is only required to swear to the petitioner's refusal to submit to testing … Prior to January 1, 1993, the statute required a sworn report detailing the basis for the arrest and request for testing … Current legislation, however, requires a sworn report only when a person refuses a chemical test or fails a chemical test … The court further notes that the Hearings Examiner addressed and explained this issue at the hearing and in his report".
Kane v. Beecher, 96-E-39, (Merrimack, Manias, 5/20/96) AFFIRMED
Plaintiff claimed that case should be dismissed because the ALS form should have been sworn to by a JP prior to giving him copy of form that evening; court held that "the petitioner cites case law from a foreign jurisdiction to argue that the report must be sworn before a justice of the peace before being given to him. There is no indication, however, that this requirement obtains in New Hampshire. The hearing officer concluded that there was no violation of the statutory requirements, and the Court agrees". (NOTE: cross-reference to Section II, below)
Drouin v. Turner, 94-E-364, (Rockingham, Gray, 10/19/94) REVERSED
Only issue was whether DMV had the legal authority to suspend a driver license based upon an apparent facially sufficient ALS form which was, in fact, NOT properly sworn (officer had not personally appeared before a JP or Notary Public); court indicated that the issue has never been addressed in this state but that research in other states have all held that "… the requirement of a sworn report under an implied consent statute is at least mandatory, if not jurisdictional"; court concluded, after a detailed analysis, that the "DMV is without jurisdiction to suspend a person's driver license absent a ‘sworn report' from the arresting officer".
Boutin v. Turner, 94-E-32, (Merrimack, McGuire, 6/16/94) AFFIRMED
Plaintiff claimed that case should be dismissed as the ALS form was JP'd by a police employee, who is not a neutral and detached magistrate; court "… denied without comment".
Kashkooli v. Turner, 93-E-472, (Merrimack, Arnold, 10/26/93) AFFIRMED
Plaintiff claimed that case should be dismissed because the ALS form, although sworn, did not indicate whether person swearing was JP or Notary Public; plaintiff did not argue that person was in fact, not a JP or Notary Public, only "… that he failed to designate in which capacity he was acknowledging the officer's signature"; court stated that plaintiff could not point to any prejudice, material or otherwise, resulting from this procedural irregularity and denied motion, citing Appeal of Concord Natural Gas Corp. (NOTE: cross-reference to Section I of refusal and section involving back of ALS form)
Towne v. Turner, 93-428, (Merrimack, Arnold, 10/13/93) AFFIRMED
Plaintiff claimed that case should be dismissed because the ALS form was not complete (officer did not sign Paragraph 8 as he was under the mistaken impression that this part also had to be sworn); court stated that plaintiff could not point to any prejudice resulting from that technical deficiency, citing Appeal of Concord Natural Gas Corp. (NOTE: cross-reference to section involving back of ALS form)
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B. Issues Regarding Pink Copy of ALS Form
Thompson v. Beecher, 98-E-199, (Merrimack, Manias, 9/10/98) AFFIRMED
Plaintiff claimed that case should be dismissed because his pink copy of the ALS form was not sworn; court held that "The purpose of form DSMV 426 is to notify the person of his rights. Officer Blanchard testified that he always gives defendants their copy of the form prior to having it sworn to by a notary, and he has never been told that this policy is inappropriate. Furthermore, RSA 265:91-a does not require the officer to provide a sworn copy of the notice of suspension to the petitioner, only to the department". (NOTE: cross-reference to accident section and Section II, below)
Fournier v. Beecher, 96-E-111, (ND Hillsborough, Sullivan, 7/31/96) AFFIRMED
Plaintiff claimed that case should be dismissed because he was not personally provided copy of ALS form; form was placed with his possessions as he was in cellblock; court stated that "nothing in the statute or the rules required Officer Fuller to place Fournier's copy of the form in his hand"; plaintiff also argued that his copy of the ALS form was not sworn and was not marked as refusal or test; court stated that "the plain language of the statute does not require Fuller to provide a sworn copy to Fournier, just to the department"; also, court held "… the statute and regulations do not require the officer to serve Fournier with a copy of the ALS form which indicates whether he refused or failed the breath test". (NOTE: cross-reference to Section V of refusal)
Ryan v. Beecher, 96-E-52, (Merrimack, McGuire, 6/10/96) AFFIRMED
Plaintiff claimed that case should be dismissed because he was not provided copy of ALS form; officer failed to give him copy because he held out-of-state license; although an error, court held that there was no prejudice, citing Appeal of Concord Natural Gas Corp; court stated "… even if the petitioner had lost his opportunity to appeal due to police department error … the appropriate remedy would be to give the petitioner an administrative hearing, not to automatically rescind the suspension of petitioner's drivers license". (NOTE: cross-reference to anonymous complaints section)
Berube v. Beecher, 95-E-357, (ND Hillsborough, Barry, 1/25/96) AFFIRMED
Plaintiff claimed that case should be dismissed because he was not provided with his copy of the ALS form until the day after his arrest, contrary to Saf-C 2803.01; court held that "… no substantive right was denied to the petitioner. The petitioner was served with the appropriate form less than one-half day later, had not been stopped by a police officer during the period after his license was taken by the arresting officer and even if he had been, a license check with the New Hampshire Department of Safety would have shown that he was a licensed driver as of the time".
LaForest v. Beecher, 95-E-370-B, (SD Hillsborough, Dalianis, 12/18/95) AFFIRMED
Plaintiff claimed that case should be dismissed because she was not provided with her copy of the ALS form until nine days after her arrest, contrary to RSA 265:91-a III and Saf-C 2803.01, which states that the form "shall" be provided immediately to the arrestee; court held that, although there was a technical violation of the statute and rule, "… the petitioner has failed to demonstrate any material prejudice. The petitioner was not deprived of her ability to drive and was given a hearing within the statutory time-frame. The Court finds nothing in the record to persuade it that the findings of fact made by the Director are not reasonable. Further, the Court finds no error of law …", citing Appeal of Concord Natural Gas Corp.
Howe v. Beecher, 95-E-374, (Rockingham, McHugh, 11/3/95) AFFIRMED
Plaintiff claimed that case should be dismissed because the pink copy of the ALS form given to him that evening contained no signatures, although the original sent to DMV did; "The Court has reviewed the law in question and determines that it does not require the plaintiff to receive a signed copy of the suspension notification". (NOTE: cross-reference to Section II of grounds for stop; Section II of probable cause and Section I of refusal)
Agrusso v. Turner, 93-E-345, (Merrimack, McGuire, 9/24/93) AFFIRMED
Plaintiff claimed that case should be dismissed because the pink copy of the ALS form given to him that evening did not contain signature of JP or Notary Public; court held that "this is a different document, however, than the report submitted to the department. The Court sees nothing in the statute requiring that a defendant receive a notarized copy of his rights form".
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C. Miscellaneous
Farley v. Beecher, 04-E-013, (Sull., Brennan, 05/06/04) AFFIRMED
Arrested for DWI; tested above the legal limit; Petitioner claimed that case should be dismissed because the person conducting the test was not present at the hearing. Court held: "The Petitioner's request for a hearing did not "include a notice requiring the attendance of the person conducting the test." Saf-C 2804.01 (f). Therefore, the State was not required to produce that witness for the ALS hearing."
Hubbell v. Beecher, (Rockingham, Abramson, 7/11/02) AFFIRMED
Arrested for DWI; refuse test; petitioner alleges sworn report defective because petitioner's name does not appear in Section V of ALS report. Held: "Because petitioner's name appears upon the form at least three times and Officer … swore to the accuracy of the entire form in his Officer Report, it is unnecessary to add petitioner's name for a fourth time on the same form to indicate the person who refused testing." (NOTE: cross-reference Section 10, I,A Sworn Report)
Leclerc v. Beecher, 01-E-129, (Strafford, Houran, 10/23/01) AFFIRMED
Petitioner asserts that the record does not include the entire "DSMV426 form", the officer failed to submit it as an exhibit; the Hearings Examiner may not refer to it in making his decision; Court held: "that the DSMV426 ALS form, a sworn document submitted to the Department under the mandate of statute and rule as the jurisdictional prerequisite to the commencement of an ALS proceeding, is a part of the record of that proceeding and does not have to be separately admitted as an exhibit to be
Delbuono v. Beecher, 99-E-517, (Rockingham, Galway, 12/15/99) AFFIRMED
Plaintiff claimed that case should be dismissed because ALS form was not mailed to DMV within five working days of receiving results; Hearings Examiner determined that form was submitted six days after the state police received the results, but determined there was no material prejudice to plaintiff; court held that Hearings Examiner was incorrect in his interpretation of the rules since "… the Court finds that only four working days passed before Trooper Basler submitted form DSMV 426: the results were received by the Operations Bureau on Wednesday, August 4, 1999; the five-working-day clock began to run on Thursday, August 5, 1999; and the form was mailed by Trooper Basler on Tuesday, August 10, 1999 - the fourth working day after receipt by the Operations Bureau … the interpretation most favorable to the petitioner"; court further stated that it "… need not address whether the relevant five-day period begins to run at the time the lab results are received by the Trooper or by the Operations Bureau, nor whether delay should serve as grounds for dismissal.", because the Court found the form had been submitted within the proper time frame.
Dauphin v. Beecher, 99-E-190, (Belknap, Smukler, 11/15/99) AFFIRMED
Plaintiff claimed that case should be dismissed because, although ALS form was mailed to DMV within five working days of receiving results, the DMV did not receive the ALS form within that time frame, and that "submit" means "receipt"; court held that "The officer must submit the report within 5 days, but it is not until the DMV receives the report that it notifies the petitioner officially of his license suspension. The language could not be clearer. The drafter could have chosen a word other than ‘receipt' when writing part (b), but it did not. Similar to statutory interpretation, the Court will not consider what the drafter might have said, or add words that were not included … There is nothing unreasonable, unjust or unlawful in the hearing examiner's finding that the regulation was satisfied when the officer mailed the report on the fifth day. The rule and the hearing examiner's interpretation of it serve the stated purpose noted above". (NOTE: cross-reference to Section VI of issues involving chemical tests)
Linnehan v. Beecher, 98-E-627, (Rockingham, Abramson, 1/29/99) AFFIRMED
Plaintiff claimed that case should be dismissed because Section II of ALS form was not checked off; court held that "There is no statutory requirement that the notice include the basis for suspension … The plaintiff has presented no tenable argument to show that his rights to due process were violated or that he was in any way prejudiced by the notice".
Holahan v. Beecher, 98-E-518, (Rockingham, Galway, 12/3/98) AFFIRMED
Plaintiff claimed that case should be dismissed because ALS form was not accompanied by police report, making it difficult for him to choose between an administrative review or hearing; "The Court finds, based on the plain meaning of both RSA 265:91-a and RSA 265:91-b, that no further evidence was required to be submitted, in addition to the officer's sworn report, before petitioner needed to select an administrative review or hearing under RSA 265:91-b. Therefore, the hearings officer was correct in determining that there was proper jurisdiction upon which to conduct the administrative review". (NOTE: cross-reference to Section IV of probable cause)
Suorsa v. Beecher, 98-E-35, (Rockingham, Coffey, 4/28/98) AFFIRMED
Plaintiff claimed that case should be dismissed because ALS form was not mailed within 10 calendar days of arrest; officer claimed that he sent in unsworn ALS form but was informed that it could be remedied by sending in a properly sworn photocopy if it could be received within proper time frame; plaintiff claimed that, after 10 days had passed, he requested discovery and received only the unsworn ALS form; "That the properly sworn ALS form was not included in the materials sent to the plaintiff on November 25 could plausibly be explained, as advanced by Trooper Brown, by an erroneous assumption on the part of the person who copied the file that the photocopy was a mere duplicate of the original and thus that it need not be copied".
Cerullo v. Beecher, 97-E-450, (Rockingham, Barry, 2/18/98) AFFIRMED
Plaintiff claimed that case should be dismissed because ALS form was improperly dated; "Whether the acknowledgement was proper does not affect the report's admissibility. The rules of evidence do not apply in administrative hearings, and it is within the discretion of the hearing examiner to receive any documentary evidence". (NOTE: cross-reference to Section II of probable cause)
Stone v. Beecher, 97-E-351, (Merrimack, McGuire, 2/5/98) AFFIRMED
Plaintiff claimed that case should be dismissed because ALS form was not mailed within ten calendar days of arrest, instead it was hand-delivered; court stated that "the ALS form was delivered to the Department on the tenth day after arrest. The fact that the form was hand-delivered, rather than mailed, is inconsequential and is not prejudicial to the petitioner".
Alto v. Beecher, 97-E-23, (Sull., Morrill, 6/30/97) AFFIRMED
Plaintiff claimed that case should be dismissed because Hearings Examiner did not take judicial notice of ALS form; court held that "although the ALS suspension form was not introduced as evidence and was not judicially noticed by the hearings examiner, it is a well-known and commonly used form". (NOTE: cross-reference to Section I of refusal)
Tousley v. Beecher, 96-E-11, (Cheshire, Mangones, 4/26/96) AFFIRMED plaintiff claimed that case should Be dismissed because the ALS form was completed by one officer when the actual refusal was done in the presence of another officer, who should have completed form; court held that it was not "… persuaded that the provisions concerning the identity of the certifying officer are quite as narrow as submitted by defendant", given the totality of the circumstances and both officers' joint role throughout. (NOTE: cross-reference to Section VI of refusal)
Bourque v. Beecher, 96-E-113, (Grafton, Lynn, 4/18/96) AFFIRMED
Plaintiff claimed that the failure of the officer to attach driver license to ALS form was fatal error; "although the court agrees that the officer's failure to attach the driver's license was a procedural defect, the court does not find the defect fatal"; court determined that there was no showing of material prejudice, citing Appeal of Concord Natural Gas Corp.; plaintiff also alleged that there was no objective proof that JP who signed form was in fact properly certified in this state; court "… finds this argument to be frivolous". (NOTE: cross-reference to Section IV of grounds for stop and Section I of probable cause)
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II. Violation of Administrative Rules/Regulations
A. Decision Within 15 Days
Baron v. State of NH, (Lynn, Hillsborough South, 01/27/09), AFFIRMED
ALS refusal. Issues were reasonable grounds to believe impairment, hearing not scheduled within 20 days, and hearing report not received by respondent within 15 days. Respondent stopped based on a report to dispatch that she was DWI. Respondent turned into a parking lot and did not stop at a stop line marked on the roadway. Officer smelled alcohol although Respondent stated she works as bartender and had alcohol spilled on her. On the HGN officer saw 2 of 6 clues of impairment. On Walk and Turn she exhibited 2 of 8 clues. On One Leg Stand she exhibited 4 of 4 clues. On Rhomberg Balance, she swayed and estimated the passage of 30 seconds as being 38. She passed the Finger to Nose. Respondent failed to show prejudice in hearing being scheduled after 20 days. Also, due to her continuance of hearing, 20 day rule no longer applied. Date on report was the 15th day. Respondent had no right to receive the report within 15 days, only that it be issued within 15 days. Statute does not require that Respondent receive report within 15 days. Evidence of impairment more than sufficient to constitute reasonable grounds.
Morris v. Beecher 05-E-005, (Belknap, Smukler, 03/29/05) AFFIRMED
Petitioner claimed that suspension should be reversed because hearings examiner failed to adhere to 15-day deadline for issuing a report; Court stated that "...the Court cannot discern how Petitioner was prejudiced by a gap of 23 days. citing several Supreme Court cases. Therefore the suspension was not legally deficient (cross-reference to Section I of Informing of ALS Rights)
Charbonneau v. Beecher, 97-E-545, (SD Hillsborough, Dalianis, 1/15/98) AFFIRMED
Plaintiff claimed that case should be dismissed because decision was not rendered within 15 days, contrary to RSA 265:91-b, III and Saf-C 2804.06; court stated that "… the Court need not determine whether the report was forwarded to petitioner on the fifteenth or sixteenth day, because petitioner fails to demonstrate the requisite prejudice", citing Appeal of Martino. (cross-reference to Section V, below and Section I of grounds for stop)
Walton v. Beecher, 96-E-300, (Merrimack, Arnold, 12/5/96) AFFIRMED
plaintiff claimed that case should be dismissed because decision in case was rendered after 15 days, contrary to RSA 265:91-b, III and Saf-C 2804.06; court stated "there is no doubt that the hearing officer violated the statutory mandate when he issued his decision eight days late. The issue on appeal, however, is whether dismissal is the proper enforcement to redress this violation"; court concluded "the petitioner does not allege that the delay caused her prejudice. Moreover, the petitioner's drivers license was not suspended during the delay … the Court does not find that the agency's procedural irregularity has caused her any prejudice".
Martin v. Beecher, 96-E-434, (Rockingham, Coffey, 12/5/96) AFFIRMED
Plaintiff claimed that case should be dismissed because decision in case was rendered after 15 days, contrary to RSA 265:91-b, III and Saf-C 2804.06; court stated "there is no question that both the RSA 265:91-b and implementing directive contain mandatory language with regard to the time limit within which the Division is to render a decision"; court concluded "… there is neither any indication that the statute was anything other than an attempt to hasten adjudicative dispositions for the benefit of all parties involved nor a showing of prejudice to the petitioner as a result of the four day delay".
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B. Hearing Conducted After 20 Days
Gould v. Beecher, 05-E-606 (Rockingham, Morrill, 03/08/06) AFFIRMED
Petitioner argued that the officer's incorrect date of birth entry caused an undue delay (104 days) in scheduling and violated her due process rights. Before submission to DOS, the date had been corrected, but Petitioner used the incorrect date on her request for hearing and it could not be matched to the ALS form. Hearing was promptly scheduled as soon as Petitioner realized her mistake and resubmitted. Court agreed that the hearing was not scheduled within 20 days, but ruled that because the error was Petitioner's, her due process rights were not violated by the state. The court denied the petition. (See also Section 5, Jurisdictional Issues and Section 10, Part IA)
Haghighi v. Beecher, 05-E-225, (Strafford, Fauver, 11/29/05) AFFIRMED
Arrested for DWI and agreed to test. Petitioner complained that hearing was not scheduled within 20 days and the instrument certification was improper and the simulator stock solution was not traced to the certification. In a detailed opinion, the Court found no prejudice to Petitioner caused by the delay in scheduling and found that the evidence was sufficient to support HE's findings on certification and simulator solution.
Pappaconstantino(u) v. Beecher, 04-E-167 (SD Hillsborough, Hicks, 070704) AFFIRMED
Petitioner requested a hearing on January 9 and again on February 16, 2004. On March 1, 2004, she received a letter from the DOS stating they could not find her in the system because of the spelling of her name on her license. She claims she was without her license for 47 more days than necessary had her suspension not been upheld and was prejudiced in that she had to rely on others for rides, etc. HELD: "The Petitioner was not materially prejudiced by the delay in scheduling a review hearing for her case. The delay in this case resulted in nothing more than inconvenience to the Petitioner and does not warrant dismissal of the ALS."
Catani v. Beecher, 03-E-148, (Carroll, O'Neill, 02/19/04) AFFIRMED
Petitioner claimed that case should be dismissed because hearing was not held within 20 days (namely 21 days), contrary to RSA 265:91-b, I (c); Court held: "The Hearings Examiner's decision that the ALS hearing was timely scheduled and therefore reasonable."
Voge v. Beecher, 01-E-9, (Strafford, Mohl, 7/3/01), AFFIRMED
Petitioner claimed that case should be dismissed because hearing was not held within 20 days, contrary to RSA 265:91-c; RSA 265:91-b (c) … "the New Hampshire Supreme Court has held that administrative agency decisions will not be set aside for procedural irregularities, unless the complaining party shows material prejudice. Court held: "… there is a reasonable basis in fact to support the Hearings Examiner's conclusion that the petitioner was not materially prejudiced by the delay."(NOTE: cross-reference Section 7, probable cause)
Kaboub v. Beecher, 99-E-116, (Rockingham, Galway, 6/8/99) AFFIRMED
Plaintiff claimed that case should be dismissed because hearing was not held within 20 days, contrary to RSA 265:91-c; court held that procedural irregularity did exist but dismissal would only be appropriate if plaintiff could demonstrate material prejudice; "… in essence, the plaintiff argues that he might have gone forward without the arresting officer to avoid the delay occasioned by the continuance. The Court finds and rules that mere delay is insufficient to demonstrate material prejudice", citing Appeal of Concord Natural Gas Corp. (NOTE: cross-reference to Sections I and V of refusal)
Coughlin v. Beecher, 98-E-91, (Cheshire, Mangones, 6/1/99) AFFIRMED
Plaintiff claimed that case should be dismissed because hearing was not held within 20 days, contrary to RSA 265:91-c; "The Court cannot find that the 10 day delay at issue caused prejudice to defendant's ability to contest the ALS. The administrative hearing was held within a relatively brief time after the twenty day deadline. No issue has been raised that evidence was lost or that witnesses had become unavailable because of the delay. The scheduling of the administrative hearing did not comply with statutory mandates. However the Court also concludes that petitioner had not been materially prejudiced by the delay at bar", citing Appeal of Concord Natural Gas Corp. (NOTE: very detailed well-reasoned opinion on this issue)
Johnson v. Beecher, 99-E-139, (ND Hillsborough, Lynn, 5/4/99) AFFIRMED
Plaintiff claimed that case should be dismissed because hearing was not held within 20 days, contrary to RSA 265:91-b, I(c); court held that "First, because the last day of the 20 day time period fell on a Sunday and because the next day was a holiday, I hold that the department did not violate the statute by scheduling the hearing for the next regular business day… Second, even if the principle embodied in the foregoing superior court rule were held to be inapplicable to administrative hearings, dismissal of the suspension would not be an appropriate remedy for the department's failure to comply with the 20-day hearing requirement"; plaintiff also requested remand since she and counsel had not participated in the hearing because she believed there was no jurisdiction; court held that "… there was nothing to prevent Johnson from raising both her jurisdictional and her merits arguments before the hearings officer. Having failed to avail herself of the opportunity to litigate the merits of her license suspension before the department, she has waived her right to do so and is not entitled to a remand for this purpose". (NOTE: very detailed and well-reasoned opinion on this issue!)
Campbell v. Beecher, 98-E-456, (Merrimack, Manias, 3/8/99) AFFIRMED
Plaintiff claimed that case should be dismissed because hearing was not held within 20 days, contrary to RSA 265:91-b, I(c); court held that plaintiff "… failed to demonstrate that he was materially prejudiced by the DMV's alleged failure to schedule a hearing within 20 days of his request. Nothing in the record suggests that the October 30, 1998 hearing was inadequate or that Mr. Campbell's due process rights were infringed by the alleged delay. Moreover, neither the statute nor the administrative rule requiring that a hearing be held within 20 days provide for an enforcement mechanism or a remedy such as dismissal". (NOTE: cross-reference to Section V, below)
Peters v. Beecher, 98-E-101, (Strafford, Mohl, 11/13/98) AFFIRMED
Plaintiff claimed that case should be dismissed because hearing was not held within 20 days, contrary to RSA 265:91-b, I(c); court held that "… the prejudice to the petitioner was that his original request was not filed on March 28, 1998; and as a result, he lost his driving privileges prior to having a hearing. However, because the April 1, 1998 letter caused great confusion, the Division allowed the petitioner to file his request on April 28, 1998, more than 30 days after his notice of suspension. This allowed the petitioner to have a hearing. The court therefore finds that the petitioner did not suffer material prejudice due to the delay …".
Thompson v. Beecher, 98-E-199, (Merrimack, Manias, 9/10/98) AFFIRMED
Plaintiff claimed that case should be dismissed because hearing was not held within 20 days, contrary to RSA 265:91-b, I(c); court held that "… the petitioner's driving privileges were restored while awaiting a new hearing. Furthermore, although the hearing was not held within the required 20 days, it took place only one week late. The court therefore finds that the petitioner was not prejudiced by the delay, and the court will not set aside the hearing examiner's decision based solely on the respondent's failure to hold a timely hearing", citing Appeal of Concord Natural Gas Corp. (NOTE: cross-reference to accident section and Section I, above)
Sullivan v. Beecher, 97-E-51, (Grafton, Fitzgerald, 10/16/97) AFFIRMED
Plaintiff claimed that case should be dismissed because hearing was not held within 20 days, contrary to RSA 265:91-b, I(c); court held that "absent material prejudice, administrative agency determinations will not be set aside for procedural irregularities … there is a reasonable basis in fact to support the hearing examiner's conclusion that Petitioner suffered no material prejudice from the challenged agency action", citing Appeal of Concord Natural Gas Corp.
Kane v. Beecher, 96-E-39, (Merrimack, Manias, 5/20/96) AFFIRMED
Plaintiff claimed that case should be dismissed because continuance was granted at officer's request, thus hearing held beyond 20-day statutory time frame, contrary to RSA 265:91-b, I(c); court held that "the petitioner fails to cite any prejudice resulting from this continuance, however. The Court finds no record from which to conclude that this issue was even raised before the hearing officer, and accordingly will not address it for the first time here". (NOTE: cross-reference to Section I, above)
Leger v. Turner, 94-E-369, (ND Hillsborough, Lynn, 11/3/94) AFFIRMED
Plaintiff defaulted DMV hearing; did not show because plaintiff's counsel believed DMV had no authority to hold a hearing since held beyond 20 days from date of request which plaintiff had not waived (officer had requested continuance of ALS hearing which was granted over plaintiff's objection and plaintiff was restored pending new hearing); court upheld the default and on the record stated that plaintiff could not fail to appear for a hearing, whether administrative or not, just because he believed there was no jurisdiction. (NOTE: no written opinion on this case but everything stated in record)
Keets v. Turner, E-94-119, (Belknap, O'Neil, W., 11/2/94) AFFIRMED
Plaintiff made oral Motion To Vacate as hearing at DMV was not scheduled within 20 days pursuant to RSA 265:91-b I(c); court determined that motion was not timely and could not be raised at this hearing; "a challenge to the Division's jurisdiction should have been brought as a direct appeal from that hearing or should have been brought as a bill in equity to vacate the Division's order. Plaintiff chooses, however, to file a request for a de novo hearing to redetermine the matters resolved below. Accordingly, Plaintiff's oral Motion To Vacate is DENIED". (NOTE: cross-reference to Section V, below)
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C. "Good Cause" for Continuance
Glover v. Bailey, 217-2010-CV-00776, (McNamara, 2/3/11), REMANDED
ALS motion to reopen granted based on good cause for officer's failure to appear in that he did not receive hearing notice. Respondent requested discovery but case reopened without discovery or further hearing. Due process violation by allowing case reopened without giving Petitioner an opportunity to present argument or granting discovery request. Case remanded and Hearings Examiner ordered to grant discovery motion and hold hearing to determine good cause issue.
Barry v. Beecher, 219-2010-CV-00197, (Brown, 5/25/10), REVERSED
Two days before ALS hearing, trooper phoned Bureau and stated that he had been injured and was unable to attend hearing. Continuance granted without notification to respondent or agreed-upon new hearing date. Motion to dismiss denied by hearings examiner. Court found violations of administrative rules governing continuances. Delay caused by continuance denied a meaningful and timely opportunity to be heard. License suspended for 99 day delay of hearing that continuance caused.
Griffin v. Beecher, 09-E-410, (Smukler, 01/08/10), AFFIRMED
ALS appeal of finding of good cause to reopen. State failed to appear at hearing because it attempted to obtain a continuance but defense counsel never returned phone call. Prosecutor had court conflict. Prosecutor and officer failed to appear. Defense counsel maintained that he had not received messages concerning the need for a continuance. Prosecutor had not notified officer of hearing date. Finding of good cause not unreasonable because officer did not receive notice from prosecutor, which could be attributed in part to her inability to obtain position of defense counsel despite reasonable attempts to do so. Also, Petitioner suffered no prejudice because his license was restored.
Sandner v. Dept. of Safety, (Nicolosi, Merrimack, 03/04/09), AFFIRMED
State requested a continuance of the ALS hearing due to a previously scheduled vacation. Petitioner pro se. Trooper attempted to obtain Petitioner's assent and left 2 messages for him using phone number provided at booking. Petitioner never responded and Trooper filed continuance with hearings on the last day for filing. Petitioner never objected or responded to trooper's continuance request. Continuance granted. New scheduling notice dated same day as original hearing date. Petitioner appeared on original hearing date. At later hearing, Petitioner requested dismissal and argued continuance of original date improper. Petitioner's license restored pending the new hearing. Hearings Examiner denied the motion to dismiss and upheld the suspension. On appeal, Petitioner argued that the continuance was improper and that the trooper's testimony was contradictory as to whether he requested that the Petitioner take a pre-arrest chemical test. Court held that the continuance was proper. Continuance only needed to be filed 5 working days before the hearing. Rule does not require that the Petitioner receive continuance 5 working days before hearing. Also, he did not demonstrate prejudice because driving privilege restored. Petitioner's inconvenience due to appearing for first hearing date was “…of his own making.” Pre-arrest refusal not considered by Hearings Examiner. Hearings Examiner's factual findings reasonable and lawful.
Haycock v. Beecher, 05-E-248 (Straff., Fauver,01/31/06) AFFIRMED
Petitioner claimed that case should be dismissed because a continuance was granted in violation of the Saf-C rules with no new dates and less than five days before the hearing. Petitioner also claimed prejudice because he appeared with three civilian witnesses on the original date. The court found that there was not sufficient prejudice to warrant dismissal where license was restored.
Brodeur v. Beecher, 05-E-311 (Merrimack,McGuire,12/16/05) AFFIRMED
Plaintiff claimed that case should be dismissed because officer failed to appear; officer had telephoned to say he would be late due to conflicting court appearance and did appear a little more than thirty minutes late. The Bureau of Hearings allows a thirty minute grace period to either the state or Respondent before a default is entered. The court found that this was permissible and not a discretionary unpromulgated rule like that criticized in the Asmussen case. Court rejected plaintiff's argument that state should have been defaulted under Saf-C 203.21 (a), holding that there was good cause.
Pappas v. Beecher, 01-E-226, (Merrimack, McGuire, 9/24/01) AFFIRMED
Plaintiff claimed that case should be dismissed because officer failed to appear; officer submitted letter explaining her "good cause"for not appearing; "Mr.Pappas argued her illness was not serious enough to qualify as "good cause" under Chapter Saf-C 200, Part Saf-C 203.21 (b)"; the Hearings Examiner found "good cause" and rescheduled hearing; stating "Officer Rovinelli's illness on the day of the hearing was good cause for her absence from the hearing under Saf-C 203.21 (b) (5) because the illness, while not serious, was unforeseeable." Court agreed, rejecting plaintiff's argument that state should have been defaulted under Saf-C 203.21 (a), holding that Saf-C 2804.03 prevailed in an ALS case.
Bucklitch v. Beecher, 99-E-433, (SD Hillsborough, Brennan, 5/5/00) REVERSED
Plaintiff claimed that case should be dismissed because officer failed to appear after assented-to continuance filed by plaintiff was denied; "There is no evidence that it was reasonably unforeseeable that the Bureau might exercise its authority and deny the late motion to continue; no evidence that the petitioner in any way misled the officer; no evidence that there were any unforeseeable circumstances requiring the officer to be elsewhere; and no evidence that the officer was unable to communicate with the Bureau to determine whether the motion to continue had been granted. Further, there is no evidence that the notice given the petitioner by the Bureau that the motion to continue had been denied, notice the police officer never received, was a violation of an administrative practice so ingrained that the failure to give notice was sufficient to amount to ‘good cause'". (NOTE: cross-reference to Section V, below)
Riddle v. Beecher, 99-E-111, (SD Hillsborough, Dalianis, 7/7/99) REVERSED
Plaintiff claimed that case should be dismissed because officer failed to appear; after default entered, it was determined that officer had telephoned that he could not attend hearing because of court and oral continuance was granted; oral request followed up with written letter; at rescheduled hearing, over the objection of plaintiff, Hearings Examiner refused to rule on written request as the matter had already been continued; court held that "The Hudson Police Department, through Officer Gosselin, failed to comply with Rule 203.05. The request for a continuance was not in writing and was not received by the Department at least five working days prior to the hearing. Also, although the police department eventually submitted a written recitation of its request, the writing was dated January 20, 1999, the date of the scheduled hearing, and thus was not timely. Notably, the Bureau ruled on the oral request and not on the written request"; court concluded that "… after having defaulted the officer, having informed petitioner that her license would be restored and having excused her from the hearing … the Bureau abused its discretion and, thus, committed an error of law".
Blodgett v. Beecher, 98-E-294, (Merrimack, Smukler, 2/15/99) REVERSED
Plaintiff claimed that case should be dismissed because officer failed to appear; prosecutor submitted letter explaining her "good cause" for not appearing however, no mention was made of why officer was not present; Hearings Examiner found "good cause" and rescheduled hearing; court held that "The petitioner had the burden of requesting the officer's presence. The officer is the person who can attest to the facts upon which the license suspension must be grounded and the person who, accordingly, would be the subject of the petitioner's cross-examination … The situation might have been different if the officer had appeared and asked for a continuance due to the nonappearance of the prosecutor or if the prosecutor had offered a sufficient reason in her response as to why the officer failed to appear. Neither of those facts is present here, however".
Sciuto v. Beecher, 97-E-415, (ND Hillsborough, Groff, 2/9/98) REVERSED
Plaintiff claimed that case should be dismissed because arresting officer was not present at hearing, although requested; after case continued, arresting officer still did not appear and Hearings Examiner allowed hearsay testimony yet told plaintiff that he could reconvene the hearing if he so desired; plaintiff did not make a request; court stated that both the statute and rules required the presence of the arresting officer and that case should be dismissed if officer does not appear, without good cause; "the wrongful interpretation of the law by the Department is not good cause. The Department seeks to avoid this result because the petitioner failed to avail himself of the opportunity to reconvene the hearing and have the officer present. Because the Department erred in its interpretation of the law, it cannot require the petitioner to waive his statutory rights".
McKinnon v. Beecher, 95-E-334, (Merrimack, Smukler, 1/11/96) REVERSED
Plaintiff defaulted ALS hearing but his counsel appeared on his behalf requesting a waiver of his physical presence; the rules prevent such a waiver and Hearings Examiner determined that "good cause" for absence was not shown when plaintiff moved from a campground which had closed and left for Florida as he had no where else to go; plaintiff had requested an earlier hearing but trooper's schedule could not accommodate; court held that "… the circumstances surrounding the petitioner's absence from the hearing together with his good faith attempt to reschedule the hearing to an earlier date constituted ‘good cause' for his failure to appear"; court remanded the case for a new hearing to be scheduled.
Manni v. Turner, 95-E-67, (ND Hillsborough, Barry, 4/14/95) REVERSED
plaintiff defaulted DMV hearing due to miscalendaring/misdocketing date; "good cause" not shown and Hearings Examiner would not permit hearing; Court determined that hearing should be permitted as it was due to accident, mistake and misfortune.
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D. Copy of Recording
Fisher v. Beecher, 04-E-363,(ND Hills,Barry,11/12/04) AFFIRMED
Petitioner requested a transcript. “;After the matter was appealed it was determined that the transcriber could not certify the transcript due to her inability to hear all the conversations. A de novo hearing was offered to Petitioner; but declined. Petitioner seeks rescission of the decision of the Hearings Examiner on the failure to provide a transcript. COURT held: After review, the Court finds and rules that no prejudice has inured or can inure to the plaintiff because a transcript of the hearing…is not available. The Court finds that there are no errors of law in the Hearings Examiner's decision based on the merits. AFFIRMED
Chickering v. Beecher, 04-E-20, (Cheshire, Sullivan, 07/09/04) AFFIRMED
Petitioner requested a transcript. "After this matter was appealed it was determined that the tape machine or recording tapes were defective and the transcriptionist was not able to create a transcript. The Petitioner raises no issues in her appeal that relate in any way to the lack of a transcript and therefore the State's anability to produce a transcript has in no way prejudiced the Petitioner." "Her appeal was limited to the narrow legal interpretation issue … which is not effected by the lack of a transcript." NOTE: See cross-reference Section 7, I probable cause.)
Huoppi v. Beecher, 99-E-411, (ND Hillsborough, Groff, 3/2/00) AFFIRMED
Plaintiff claimed that tape recorder malfunctioned during the hearing and failed to record a portion of the officer's testimony; "The transcript does indicate a tape malfunction. The recorder was turned off, then on. The trooper then resumed testifying. The appellant and her attorney were present at the time. They have identified no material testimony which has been excluded from the transcript. From the transcript itself, it is not clear that any testimony was deleted. It is clear that any ‘malfunction' was brief and did not result in any loss of material testimony. The court notes that the trooper picks up his testimony at exactly the same point he left off". (NOTE: cross-reference to accident section, Section I of probable cause and Section I of refusal)
Wheeler v. Turner, 93-E-232, (Merrimack, McGuire, 8/24/93) AFFIRMED
Plaintiff requested copy of the tape of DMV hearing; only half of the tape was recorded; plaintiff claimed it was a violation of RSA 265:91-b I(c); court determined that there was no prejudice as a result of the technical difficulty "nor can the Court imagine any prejudice where the facts of the case are not in dispute but only legal issues are raised", citing Appeal of Concord Natural Gas Corp. (NOTE: cross-reference to section involving back of ALS form)
Cotov v. Turner, 93-E-54, (Rockingham, Coffey, 4/1/93) REVERSED
Plaintiff requested copy of the tape of DMV hearing; tape had inadvertently been erased; plaintiff filed Motion To Dismiss for failure of DMV to comply with its own regulations; Motion To Dismiss GRANTED. (NOTE: there was no written opinion on this case!)
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III. Hearings Requested at DMV Beyond 30-Days
Maddox v. Barthelmes, 217-2012-CV-00735, (McNamara, 12/6/12), AFFIRMED
Petitioner requested an ALS hearing in 2012 for a refusal that occurred in 2005. Suspension notice for refusal issued after habitual offender decertification. Argued that it violated due process to deny hearing because suspension notice stated that she had a right to hearing. Court disagreed and found that failure to request ALS within 30 days was jurisdictional, citing to Duclos v. Beecher (see below). Suspension notice was not misleading on its face and no evidence that Petitioner relied on it to her detriment.
Duclos v. Beecher, 217-2010-00127, (McNamara, 8/4/10), REVERSED
Petitioner filed a timely but defective request for an ALS hearing which was denied. Renewed his request claiming that deficiency due to failure of police to provide discovery, which caused him to be unable to allege statutory grounds for hearing. Director's review reversed bureau's scheduling of hearing and appeal filed. Court upheld Director because statute required request for hearing to be submitted within 30 days. To properly request hearing, request must be timely and substantively in compliance with statute. Strict compliance with 30 day rules required and is jurisdictional in nature. No tolling of 30 days permissible.
Hudson v. Beecher, 05-E-194, (Rock. Morrill, 08/31/05) AFFIRMED
Petitioner had filed a timely but imperfect request for hearing, which was returned with an explanation. (Saf-C 2804.01) He resubmitted his request over seven (7) months later. Court ruled it was reasonable to deny request for hearing given the significant lapse of time.
Bell v. Beecher, 99-E-33, (Strafford, Fauver, 5/17/99) AFFIRMED
Plaintiff requested DMV hearing beyond 30-day statutory time frame; request for hearing denied by Chief Hearings Examiner as untimely; plaintiff filed an appeal pursuant to ALS statute; court held it did not have jurisdiction pursuant to that appeal statute as there was no hearing, thus no record to review; court then looked at it under certiorari standard; court rejected plaintiff's due process argument, holding that "The petitioner's appeal rights were extensively discussed on the back side of his Notice of Suspension, dated December 19, 1998. Even were it reasonable for the petitioner to overlook the information on the back of his Notice of Suspension, the subsequent Confirmation of a Notice of Suspension, dated December 28, 1998, specifically referred him to the original Notice of Suspension for information regarding his appeal rights. At that point, the petitioner still had three weeks in which to request an administrative hearing"; plaintiff also argued that the 30-day time frame should have started when he received Confirmation of Notice of Suspension in the mail on December 28, 1998; "The court disagrees and finds that both forms clearly indicated the petitioner's rights and responsibilities regarding appeal … any ambiguity in the import of the documents resulted from the petitioner's own inattention to the language on the forms".
Metcalf v. Beecher, 98-E-199, (Belknap, Perkins, 1/27/99) REVERSED
Plaintiff requested DMV hearing beyond 30-day statutory time frame; had made request for hearing but it had been sent back because ALS form had not yet been submitted because of a blood test; never sent in another request and hearing never scheduled; court held that "… petitioner's request would have been untimely if it had been received by the respondent 30 days from April 24, 1998 or May 24, 1998. However, petitioner's written request was received by the respondent on April 7, 1998. This date is obviously before May 24, 1998 and thus timely … In balancing both sides, the scales topple in favor of the petitioner's constitutionally protected privilege given that there would be no impact on the respondent. The petitioner is merely requesting due process".
Hammell v. Beecher, 98-E-356, (Merrimack, Manias, 11/5/98) AFFIRMED
Plaintiff requested DMV hearing beyond 30-day statutory time frame; request for hearing denied by Chief Hearings Examiner as untimely; plaintiff mistakenly filed appeal under Habitual Offender appeal statute; court held that "even were the Court to construe the petition in the most liberal manner, thus giving rise to its jurisdiction over the petition, the Court would find Petitioner's argument misplaced. The ALS statutes and the ALS form given to Petitioner on the night of his arrest make it clear that the burden was on Petitioner to request a hearing or administrative review and that, absent such a request, the suspension would become final".
Gregoire v. Beecher, 96-E-29, (Strafford, Galway, 3/21/96) AFFIRMED
Plaintiff requested DMV hearing beyond 30-day statutory time frame; request for hearing denied by Chief Hearings Examiner as untimely; plaintiff filed an appeal pursuant to ALS statute; court held it did not have jurisdiction pursuant to that appeal statute as there was no hearing, thus no record to review; court also stated that there were no grounds for remand to establish record as "… this provision does not allow the Court to extend the statute of limitations".
Young v. Turner, 94-E-338, (Merrimack, McGuire, 2/2/95) AFFIRMED
Plaintiff requested DMV hearing beyond 30-day statutory time frame; request for hearing denied by Chief Hearings Examiner as untimely; plaintiff filed Writ of Mandamus; court denied Writ of Mandamus after a hearing. (NOTE: there is no helpful opinion at all on this case!)
Thompson v. Turner, 94-E-21, (Merrimack, Smukler, 3/1/94) AFFIRMED
Plaintiff requested DMV hearing beyond 30-day statutory time frame; request for hearing denied by Chief Hearings Examiner as untimely; plaintiff filed Writ of Certiorari; court stated that "… the petition appropriately seeks a Writ of Certiorari as there is no adequate remedy at law"; court determined that the facts could not support a finding that DMV's action was unlawful or unreasonable, thus Writ of Certiorari DISMISSED.
Chermesino v. Turner, 93-E-680, (Merrimack, Manias, 1/31/94) AFFIRMED
Plaintiff requested DMV hearing beyond 30-day statutory time frame; request for hearing denied by Chief Hearings Examiner as untimely; plaintiff claimed that request was timely since within 30 days of date of DMV's confirming Notice of Suspension; court determined that official Notice of Suspension was given to plaintiff by the officer on the date of his arrest and that DMV's follow-up notice was a confirmation notice only and NOT the OFFICIAL Notice of Suspension, thus "DMV's refusal to hold a hearing was proper under the statute".
Shanholtz v. Turner, 93-E-375, (Merrimack, Arnold, 9/23/93) AFFIRMED
Plaintiff requested DMV hearing beyond 30-day statutory time frame; request for hearing denied by Chief Hearings Examiner as untimely; plaintiff claimed that request was timely since within 30 days of date of DMV's confirming Notice of Suspension; court held that RSA 265:91-a III clearly provides "that the notice period begins when the officer gives the driver the notice of suspension, not when the DMV receives the officer's sworn report and takes subsequent action", thus upheld DMV's refusal to hold a hearing. (NOTE: there was detailed analysis as to what type of appeal this was and how court had jurisdiction to hear it!)
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IV. Collateral Estoppel/Double Jeopardy
Hudon v. Beecher, 08-E-0347, (Nicolosi, Hillsborough South, 2/3/09) AFFIRMED ALS refusal appeal.
Respondent found not guilty in district court trial on related DWI charge. State stipulated at trial that the evidence was insufficient to establish Respondent in actual physical control of vehicle. Respondent asleep behind the wheel of running vehicle. Showed signs of impairment and agreed to field sobriety tests. After the Horizontal Gaze Nystagmus, the Respondent refused further testing. He submitted to a breath test which had a result over the legal limit. Argued that collateral estoppel prohibited administrative license suspension because it had already been determined that the respondent was not in actual physical control of vehicle, one of the same issues within the scope of the hearing. He also argued that the State was bound by the prosecutor's concession at trial that evidence of physical control was insufficient. Finally, he argued that there was insufficient evidence of actual physical control of the vehicle to uphold the ALS. Court held that collateral estoppel is inapplicable to an ALS hearing under Director v. Cassady, 140 NH 46 (1995) since the burdens of proof are different, and policy considerations suggest that the 2 proceedings serve different purposes, and therefore, should be considered separately. Moreover, the prosecutor's concession at the trial is inapplicable to the ALS hearing. Finally, the Court found the evidence sufficient on actual physical control.
Davis v. Beecher, 01-E-337, (Merrimack, McGuire, 11/14/01) AFFIRMED
Plaintiff argues that the Hearings Examiner's decision to deny him decertification violates constitutional guarantees against double jeopardy; court held that: "… guarantees against double jeopardy do not apply to civil proceedings unless "the penalty imposed as a result of a (civil) proceeding is so punitive that it must be considered criminal punishment for purposes of the double jeopardy clause." Note: cross-reference Section 13, III HO Decertification)
Stevens v. Beecher, 00-E-47, (Rockingham, Abramson, 3/8/00) AFFIRMED
ALS hearing was upheld; County Attorney's Office nol prossed criminal charges against plaintiff the day before the ALS hearing and plaintiff argued that State could not pursue ALS action; court held that "Since the decision to nol pros the case does not constitute a final determination on the merits, that decision has no preclusive effect as res judicata and is not relevant to the determination of this case". (NOTE: cross-reference to actual physical control section and Section III of grounds for stop)
Hudson v. Beecher, 99-E-295, (SD Hillsborough, Dalianis, 11/15/99) AFFIRMED
ALS hearing was upheld; subsequently, District Court found plaintiff "not guilty" of DWI; court held that "… both the criminal trial and the ALS hearing required different burdens of proof and have different policies underlying each proceeding. Thus, the Court finds that, based on the above policy considerations and the fact that the two proceedings were intended to operate independently of each other, the doctrine of collateral estoppel does not apply to vacate the examiner's order of license suspension". (NOTE: cross-reference to Section I of probable cause)
Christiansen v. Beecher, 99-E-52, (Strafford, Fauver, 8/31/99) REVERSED ON OTHER GROUNDS
ALS hearing upheld; subsequently, District Court dismissed DWI charge as a result of granting a Motion To Suppress, finding the stop to be unlawful; court held that "… the district court finding, based on the same facts and made after the hearing examiner's findings on the issue, does not constitute new evidence … Because this is an appeal on the record from the final decision of the division, and the district court suppression order followed the ALS hearing, the court finds that collateral estoppel does not apply to bind the superior court in its review of the hearing examiner's decision", citing State v. Frost and State v. Cassady. (NOTE: cross-reference to Section IV of grounds for stop)
Flewelling v. Beecher, 98-E-433, (SD Hillsborough, Brennan, 7/30/99) AFFIRMED
ALS hearing upheld; previous to hearing, criminal charges were dismissed;
plaintiff argued that the court's decision was binding upon the administrative hearing; court held that "The administrative license suspension process is not criminal, but is civil in nature, and has a different purpose than the criminal DWI charge … this Court finds the district court decision not to be binding and the examiner's decision to uphold suspension not to be unreasonable". (NOTE: cross-reference to Section II of grounds for stop, Section I of probable cause and Section V of refusal)
Wedge v. Beecher, 99-E-488, (SD Hillsborough, Brennan, 7/30/99) REVERSED ON OTHER GROUNDS
ALS hearing upheld; previous to the hearing, criminal charges had been dismissed because the investigatory stop was not supported by reasonable suspicion; plaintiff argued that the court's decision was binding upon the administrative hearing; court held that "Mr. Wedge's appeal from the ALS decision does not involve the relitigation of the issue of whether the investigatory stop was supported by reasonable suspicion … Rather, the appeal from the ALS decision is limited to a review of the record as developed before the hearings examiner to determine the lawfulness and reasonableness of the examiner's decision … Accordingly, the court's earlier ruling in the criminal case that the troopers lacked reasonable suspicion to support the investigatory stop of Mr. Wedge's vehicle is not binding on the court's present determination of whether the hearings examiner made an error of law or whether his decision was unreasonable or unlawful". (NOTE: cross-reference to anonymous complaints section)
Letson v. Beecher, 97-E-93, (ND Hillsborough, Sullivan, 7/1/97) AFFIRMED
ALS hearing was upheld; subsequently, District Court dismissed DWI charge; "… the court finds that res judicata is inapplicable in this case", citing Walsh v. Beecher, below; court further stated that "… the district court decision was subsequent to rather than prior to the hearing examiner's decision. The finding of the district court was issued one day after the finding of the hearing examiner. A subsequent decision cannot have res judicata or collateral estoppel effect on a prior ruling". (NOTE: cross-reference to accident section)
Riendeau v. Beecher, 96-E-394, (SD Hillsborough, Dalianis, 2/26/97) REVERSED ON OTHER GROUNDS
ALS hearing was upheld; subsequently, District Court dismissed DWI charge; "The Court rejects plaintiff's argument that a subsequent District Court dismissal of the DWI charge somehow collaterally estops the hearings examiner from accepting the testimony of the arresting officer and giving it the weight he sees fit. The District Court disposition took place after the ALS hearing and was not raised before the hearings examiner. As a result, it is irrelevant with regard to the issues before this Court". (NOTE: cross-reference to accident section)
Walsh v. Beecher, 96-E-284, (Merrimack, McGuire, 1/30/97) AFFIRMED
ALS hearing was upheld; subsequently, District Court dismissed DWI charge as a result of granting a Motion To Suppress, finding the initial stop to be unlawful; court held that "as there are no disputed issues of facts, the Court will consider the issue of collateral estoppel rather than remanding it for reconsideration"; court stated that policy considerations coupled with "… the fact that the two proceedings were intended to operate independently of each other, the doctrine of collateral estoppel does not apply to make the criminal suppression order binding in this administrative license suspension proceeding".
Brunaualt v. Beecher, 96-E-137, (Merrimack, McGuire, 8/8/96) AFFIRMED
ALS hearing was upheld; subsequently, District Court dismissed DWI charge as a result of granting a Motion To Suppress, finding the initial stop to be unlawful; Motion To Reopen filed with Hearings Examiner which was denied; court stated that "… the District Court's decision that the initial stop was unlawful has no collateral effect on the ALS proceeding", citing Hodges v. Beecher, cited below.
Hodges v. Beecher, 96-E-360, (Merrimack, Manias, 4/8/96) AFFIRMED
Court remanded ALS appeal to Hearings Examiner to consider evidence that, subsequent to ALS hearing, District Court had excluded breath test, on same facts; after considering evidence, Hearings Examiner upheld suspension, which again was appealed; court held that "… it is clear that the legislature intended for the hearing examiner, not the Court, to review evidence which arose after the ALS hearing", citing State v. Cassady.
Howson v. Beecher, 95-E-424, (SD Hillsborough, Hollman, 1/12/96) AFFIRMED
Plaintiff claimed that State was collaterally estopped from arguing validity of Hearings Examiner's decision on appeal as District Court subsequent to administrative hearing but before appeal suppressed breath test; court held that "the hearing officer's decision preceded the district court decision and pursuant to RSA 265:91-b this court is to review only the decision of the hearing officer. Therefore, any findings or evidence from the district court are irrelevant to this court's review of the hearing officer's decision". (NOTE: cross-reference to Section IV of issues involving chemical tests)
Orino v. Beecher, 95-E-52, (Carroll, Abramson, 11/2/95) AFFIRMED
Only issue was whether or not officer had reasonable grounds to believe plaintiff had been driving a motor vehicle while under the influence of intoxicating liquor; in the criminal matter, the DWI charge had been dismissed and plaintiff claimed that res judicata should apply in this proceeding; court stated that "… although petitioner claims that the District Court dismissed his DWI charge because Trooper Rowland had no probable cause to arrest, petitioner has not shown from the record that the District Court dismissed his DWI charge on the ground he alleges, and the Court will not speculate as to the grounds for dismissal", citing In Re Three Video Poker Machines; further, the court stated that collateral estoppel would not apply in any event since "… the administrative license suspension is not criminal, but is civil in nature, and has a separate purpose than the criminal DWI charge", citing State v. Cassady. (NOTE: cross-reference to accident section)
Hanagan v. Turner, 94-E-323, (ND Hillsborough, Groff, 1/6/95) AFFIRMED
Only issue was whether or not officer had reasonable grounds to believe plaintiff had been driving a motor vehicle while under the influence of intoxicating liquor; in the criminal matter, a Motion To Suppress had been filed and court determined that there was indeed probable cause; court held that doctrine of collateral estoppel applies and therefore, "the Court finds that it has been established that the officer did have such reasonable grounds". (NOTE: there was a detailed analysis of collateral estoppel in this opinion!) only issue was ALS hearing.
Carlson v. Turner, 93-E-619, (Merrimack, Manias, 2/8/94) REVERSED ON OTHER GROUNDS
Only issue was whether or not officer had reasonable grounds to believe plaintiff had been driving a motor vehicle while under the influence of intoxicating liquor; a Motion To Suppress had been filed in the criminal matter and court determined that there was no probable cause to arrest plaintiff; plaintiff claimed that this court was bound by that determination under the doctrine of collateral estoppel; court held that the Superior Court has exclusive jurisdiction over ALS proceedings and to conduct a de novo review of all issues; "granting preclusive effect to a District Court decision made in a collateral criminal proceeding would give the District Court de facto jurisdiction to determine the outcome of ALS appeals", citing State v. Stevens and State v. Nadeau. (NOTE: cross-reference to illegal detention section)
Caron v. Turner, 93-E-224, (Merrimack, O'Neill, J., 7/9/93) AFFIRMED
Only issue was whether or not the results of an Intoxilyzer test should be admissible; a Motion To Suppress had been filed in the criminal matter and court determined that results should NOT be admissible; plaintiff claimed that this court was bound by that determination under the doctrine of collateral estoppel and res judicata; court held that res judicata was inapposite because the criminal proceeding did not involve RSA 265:91; court held that collateral estoppel was inapposite because the statutory scheme provided for a de novo appeal from the administrative hearing to Superior Court. (NOTE: the court allowed the Intoxilyzer results to come in!)
Mullin v. Turner, 93-E-27, (Rockingham, Coffey, 3/3/93) REVERSED
IMPLIED CONSENT NOT ALS: District Court in underlying DWI trial had dismissed case by a preponderance of evidence stating that there was no probable cause for the initial stop; plaintiff argued that collateral estoppel applied to the ALS appeal; "this Court is bound by collateral estoppel. The prior order of the Director of Motor Vehicles dated 1/6/93 is hereby vacated".
Waitt v. Turner, 92-E-398, (Rockingham, Hampsey, 10/8/92) REVERSED
IMPLIED CONSENT NOT ALS: District Court in underlying DWI trial had dismissed case by a preponderance of the evidence stating that there were no reasonable grounds for the initial stop; plaintiff argued that collateral estoppel applied to the Implied Consent appeal; "As today's hearing involves the same parties and issue and the same burden of proof, we now conclude that the State of New Hampshire is bound by the decision rendered by the Auburn District Court. If this matter went to a merits hearing, we would be obligated to recognize the action of the District Court by estoppel …".
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V. Procedural Issues Pertaining to Conduct of Hearing
Duclos v. Bailey, 219-2012-CV-00102, (Lewis, 4/8/12), AFFIRMED
Hearing request only challenged arrest, not other factors within the scope of hearing under RSA 265-A:31-II(a) through (f). Hearings Examiner properly limited hearing to only issue raised in hearing request because statute and administrative rule deemed issues not raised are waived. Court held that this was reasonable and lawful.
Dunn v. Director, 09-E-0303, (Abramson, 9/9/09), AFFIRMED
ALS appeal. Argued insufficient evidence. Also argued statement made to nurse should have been excluded under medical privilege. Properly admitted because Petitioner made statement in presence of officer, which waived any privilege. Court also held evidence sufficient to support upholding suspension.

Douville v. Beecher, 09-E-0219, (Brown, 07/23/09), AFFIRMED
ALS refusal.  Officer did not identify the Petitioner as the driver during the hearing until after Petitioner's closing argument.  Hearings Examiner allowed officer to make the identification.  Court upheld with brief opinion stating, “The Director's actions are sustained.  The Hearings Officer has the discretion to reopen and accept additional evidence from either party.  Appeal request denied."

Langridge v. Beecher, 08-E-0256 (Rock, Lewis, 08/08/08) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. The Petitioner argued that was unlawful because refusal evidence was improperly elicited during the hearing. He asserted that the hearings examiner erred by reopening the hearing, and erred by allowing argument to be turned into evidence. The Court noted that the hearings examiner had various authorities under Saf-C 203.11 including “to determine the order of proof” and “to make a complete record of the proceeding including all relevant matters “. The Court also noted that under Saf-C 203.20 that “no party is required to rest its case at a given time except when a hearings examiner has heard all relevant evidence and rebuttals.” The Court ruled that no real reopening had taken place and there had been no objection by Petitioner to the colloquy during summations that resulted in additional evidence about the deemed refusal. (See also Part 8 Section V Deemed Refusals)
Lodge v. Beecher, 02-E-105, (Grafton, Burling, 9/10/02) AFFIRMED
Arrested for DWI,Petitioner alleges stop illegal;in DWI trial, District Court found stop to be constitutionally invalid. Court held: "… argument that the District Court's decision after the ALS hearing confirming the invalidity of the stop is not determinative. It is clear that the legislature intended the ALS process to operate independently of any criminal charges arising out of the same event." (NOTE: cross-reference to Section I, IV Miscellaneous)
Cassady v. Beecher, 02-E-121, (Merrimack, Arnold, 8/16/02) AFFIRMED
Petitioner did not testify or produce any evidence on his own behalf; Court held: "{A} court of equity has the right to draw reasonable and proper inferences from all the circumstances in the case, and especially from the silence of the defendant." DeMauro v. DeMauro, 142 NH 888-89 (1998) (quoting United States v. Mammoth Oil Co., 14 F.2d 705,529 (8th Cir. 1926), affirmed 275 U.S. 13 (1927)). Accordingly, the hearings examiner could also draw an adverse inference from … failure to testify in his own behalf. (NOTE: cross-reference Section 7, I probable cause)
Mughmaw v. Beecher, 02-E-86, (Merrimack, O'Neill, 8/6/02) AFFIRMED
At ALS hearing, Hearings Examiner relied in part upon police arrest reports which contained evidence the officer did not testify to. Petitioner alleged denial of due process. Held RSA 541-A:33 and Saf-C 203.18 allows depositions, reports, etc. at ALS hearing. Saf-C 2804.01 (e) future provides that "the law enforcement officer may submit to the department any statements, reports, or other evidence which he/she wants a hearings examiner to consider during the review or hearing." As such, the hearings examiner's decision to review the police reports as well as the trooper's testimony was reasonable and lawful under the process provided for an administrative hearing.
Sanders v. Beecher, 02-E-24 (Merrimack, McGuire, 3/29/02) AFFIRMED
State requested continuance not submitted within 5 days of hearing as required by Saf-C 203.04; plaintiff asserts continuance improperly granted in violation of rules; alleges not dismissing ALS amounts to denial of due process. Held: all parties appeared at hearing; and, a full hearing on the merits was conducted. Prejudice neither alleged nor proven by Petitioner. (NOTE: cross reference Section 8 Informing of ALS rights)
Randall v. Beecher, 01-E-167, (Strafford, Houran, 12/13/01) AFFIRMED
Petitioner alleges that the hearings examiner exceeded the scope of her authority by "repeatedly asking leading questions of the police officer which assisted the police officer" in introducing evidence and presenting his case; Court held: "the questioning of the officer by the Hearings Examiner did not constitute error as a matter of law and was not unjust or unreasonable;further, hearings examiners are specifically authorized by rule to question witnesses." Saf-C 203.8 (c);Saf-C 203.10 (a)(11)
Mackey v. Beecer, 01-E-141, (SD Hillsborough, Hampsey, 6/7/01) AFFIRMED
Petitioner arrested and charged with OHRV, DWI; refused test under OHRV statute; Notice of Hearing cited the ALS statutes; Hearings Examiner orally changed Notice to OHRV statutes; petitioner argued that it was error for the Hearings Examiner to sua sponte change the legal authority of a hearing to the more applicable OHRV statute thereby denying him due process; court held that "the ALS statute mentioned in the notice of hearing … is identical to the OHRV statute," and "finds and rules that the petitioner was not materially prejudiced by the examiner's application of the OHRV statute."
MacVane v. Beecher, 00-E-46, (Strafford, Mohl, 5/22/00) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to consider ALS form and police report since both were not formally moved into evidence; court held that "Officer Hardy's failure to formally offer the DSMV form 426 into evidence for purposes of the hearing does not prevent the hearing examiner from considering the form. That form is what was submitted to the Department of Safety to cause the revocation of the petitioner's license, and it is what gave the department jurisdiction to conduct the review hearing requested by the petitioner … the hearing examiner asked Officer Hardy to confirm that the form was indeed the form Officer Hardy had submitted to the department. Officer Hardy confirmed that it was the form he had submitted, and that he appeared before a justice of the peace and swore to the report … the hearing examiner listed the DSMV form 426 as State's Exhibit 1. The court finds that this is sufficient". (NOTE: cross-reference to Section I of probable cause)
Bucklitch v. Beecher, 99-E-433, (SD Hillsborough, Brennan, 5/5/00) REVERSED ON OTHER GROUNDS
Plaintiff argued that it was error for Hearings Examiner to ask whether he should take official notice of a "way" when it appeared that police officer neglected to do so; court held that " … following the hearings officer's question, the State provided sufficient evidence to establish a ‘way' and there is no evidence that the hearings officer was biased toward the State or unfair to the petitioner. Further it is not beyond the discretion of any trial court to provide parties an opportunity to provide additional evidence, subsequent to the submission of their case, as long as the court is not acting with bias, or in a manner that unjustly prejudices the opposing party". (NOTE cross-reference to Section II, above)
Guimond v. Beecher, 99-E-279, (ND Hillsborough, Sullivan 8/27/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner not to dismiss the case because the police officer failed to produce the booking photograph at the hearing, although requested to do so by plaintiff's counsel; court held that "The hearing examiner offered to allow the petitioner to obtain the photograph from the Weare Police Department and submit it to the hearing examiner. The petitioner did not take the hearing examiner up on the offer, and the court finds that the claim has been waived". (NOTE: cross-reference to Section II of grounds for stop; Section I of probable cause and Section VI of refusal)
Peno v. Beecher, 99-E-89, (Merrimack, Perkins, 8/2/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner not to recuse himself and all other Hearings Examiners under the supervision of Assistant Commissioner John Stephen because of memorandum issued 8/14/98 pertaining to withdrawals of ALS cases; court held that "… there is no indication in the record before the Court that the complaining law enforcement officer attempted to withdraw the complaint or that the officer colluded in a motion to dismiss. As there is no indication that any of the concerns addressed in Mr. Stephen's memorandum would be present in the petitioner's administrative hearing, a reasonable person would not have questioned the hearing examiner's neutrality in this case", citing Appeal of Grimm, Appeal of Seacoast Anti-Pollution League and Appeal of Hurst. (NOTE: cross-reference to Section I of probable cause and Section I of refusal)
Glendye v. Beecher, 99-E-35, (Merrimack, Manias, 7/26/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner Gainor to preside over hearing after case had been assigned to Hearings Examiner Haus and that the transfer violated Saf-C 203.06; Hearings Examiner Haus had heard preliminary matters but was assigned to Dover the date of second hearing; "The Court finds that the department did not violate the regulation, in that Hearings Examiner Haus' posting to the Dover location constituted ‘absence' as contemplated by the rule, justifying the transfer of the case to Hearings Examiner Gainor"; court further held that "Although Hearings Examiner Gainor had not heard the preliminary matter at the original hearing, he was aware of the Petitioner's concern regarding the trooper's conduct at that hearing and offered Petitioner ample opportunity to raise the issue in the second hearing. Petitioner chose not to do so". (NOTE: cross-reference to Section III of grounds for stop)
Hadlock v. Beecher, 99-E-21, (Merrimack, McGuire, 7/19/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner not to allow evidence of a bipolar disorder and use of medications to treat the disorder in order to discredit reliability of FS tests; court held that "The Hearings Examiner properly declined to consider such after-acquired information as irrelevant to the officer's probable cause determination". (NOTE: cross-reference to Section II of probable cause)
Colburn v. Beecher, 99-E-54, (Grafton, Fitzgerald, 6/28/99) AFFIRMED
Plaintiff argued that police officer impermissibly influenced trooper trainee's testimony by suggesting that he object to question and by pointing out areas of police report; court held that "Tactical advice to a trainee officer on the propriety of making an objection to opposing counsel's questions is not tantamount to ‘woodshedding' a witness or ‘getting the story straight'"; court further held that, regarding written police report, it was done in the context of a trainer-trainee relationship and "moreover, the petitioner has failed, in his brief, to identify what prejudice accrued as a result of the alleged impropriety".
Scott v. Beecher, 99-E-438, (Merrimack, Smukler, 6/16/99) AFFIRMED
Plaintiff argued that Hearings Examiner should have recused himself because of a Memorandum written by the Assistant Commissioner to the Hearings Examiners pertaining to withdrawals of ALS sworn reports; court held that "As there was no indication that any of the concerns addressed in the memorandum would be present in the petitioner's administrative adjudication, a reasonable person would not have questioned the hearing examiner's neutrality in this case; court also stated that "the petitioner contends that the threat of reporting and consequent disciplinary action could provide an incentive for a law enforcement officer to manufacture evidence or to proceed with an otherwise unjustified license suspension. While the Court recognizes these possibilities, there is no allegation that the officer engaged in such conduct in this case".
Wright v. Beecher, 99-E-16, (Merrimack, McGuire, 6/14/99) AFFIRMED
Plaintiff argued that it was error for Hearing Examiner to disregard uncontroverted expert opinion of toxicologist pertaining to plaintiff's blood alcohol content and fallibility of field sobriety tests; court held that "the hearing examiner determined that it was appropriate for Trooper Armaganian to rely on the petitioner's performance on the field sobriety tests. The Court cannot conclude that the hearing examiner was required to accept Dr. Samson's testimony simply because it was uncontroverted", citing Brent v Paquette and State v. Taylor. (NOTE: cross-reference to jurisdictional issues involving ALS cases)
McCaughey v. Beecher, 99-E-40, (SD Hillsborough, Dalianis, 4/28/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to consider police reports, as it constitutes inadmissible hearsay; court held that "… the rules of evidence do not apply in ALS hearings and hearsay may therefore be admitted … The Court finds no reason to doubt the trustworthiness and reliability of the police reports and, thus, finds no error in the examiner's consideration of those reports".(NOTE: cross-reference to Section IV of probable cause)
Suitter v. Beecher, 98-E-207, (Strafford, Mohl, 4/23/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to consider documents and hearsay statements from police officer who was not present at the ALS hearing; "… the testifying officer, Officer Drysdale, provided sufficient information in his direct testimony alone to support the hearings examiner's decision. He had personal knowledge of all material evidence against the petitioner … Thus, any mention at the hearing of Sergeant Timmons' hearsay statements was duplicitous"; plaintiff also argued that since Sergeant Timmons was the ‘initiating officer' of the arrest, he should have been present at the hearing; court held that "Officer Drysdale completed the ALS report and he was listed as the ‘reporting officer' and the ‘booking officer‘ on the arrest report. Officer Drysdale was competent to testify to the facts that supported the petitioner's arrest … the petitioner does not claim to have been prejudiced by Sergeant Timmons' absence from the hearing". (NOTE: cross-reference to accident section)
Corcimiglia v. Beecher, 98-E-223, (Strafford, Mohl, 4/16/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to ask the police officer if he could identify plaintiff as the person he arrested on the night in question, as it established an essential material fact against the plaintiff; court held that "The essential material fact of the petitioner's identity had already been established through information on the officer's sworn report prior to the petitioner's license being suspended … Thus, the hearings examiner's question does not indicate impartiality such that the petitioner's ALS should be invalid". (NOTE: cross-reference to accident section and Section IV of probable cause)
Draper v. Beecher, 98-E-320, (Merrimack, Manias, 3/18/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to decline to accept his offer of proof that the optimum weight for his height was one hundred and fifty-eight pounds; "Appellant could have testified as to his understanding of his optimum weight, but he chose not to. Appellant cites no authority, nor is the Court aware of any, that would prohibit the Hearings Examiner from exercising his discretion not to accept an offer of proof and instead require a witness to testify"; plaintiff also argued that he was deprived of due process because his notice involved an allegation of refusal, thereby not giving him sufficient opportunity to defend himself; Hearings Examiner offered continuance to cure any perceived defect which plaintiff declined; "After concluding that appellant had not demonstrated any material prejudice or that he was unable to defend himself against the refusal to test allegation, the Hearings Examiner denied appellant's due process claim … appellant has not met his burden of proving that the Hearings Examiner's finding … was clearly unreasonable or unlawful". (NOTE: cross-reference to Section II of probable cause)
O'Mara v. Beecher, 98-E-415, (Merrimack, McGuire, 3/17/99) AFFIRMED
Plaintiff argued that it was violation of due process for police officer not to have shown videotape of stop since it contradicted Hearings Examiner's finding of probable cause; court held that "The Court will not remand this case because the Hearings Examiner correctly found that probable cause existed to conclude that appellant drove under the influence. Moreover, the officer did not deny that appellant had used his directional signals when pulling over, but rather said he did not remember. Finally, appellant did not request that the videotape be introduced at the administrative hearing, but rather stated that it was not an issue … Accordingly, appellant's due process rights were not violated". (NOTE: cross-reference to Section I of probable cause)
Owens v. Beecher, 98-E-448, (SD Hillsborough, Dalianis, 3/9/99) AFFIRMED
Plaintiff argued that, although Hearings Examiner agreed that he had made an error of law when he intended to take official notice that field sobriety tests are more probative than general observations in determining sobriety, he still wrongfully upheld the suspension; court held that "In issuing his reconsidered report, the examiner properly utilized his experience and specialized knowledge in evaluating evidence … and properly gave weight to testimony which he found appropriate", citing Appeal of City of Nashua and Brent v. Paquette. (NOTE: cross-reference to Section I of probable cause)
Campbell v. Beecher, 98-E-456, (Merrimack, Manias, 3/8/99) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to ask questions pertaining to "way"; court held that "The record indicates that the hearings examiner's course of questioning was properly limited to the purpose of clarifying the record, was performed in an impartial manner and was not motivated by bias". (NOTE: cross-reference to Section II, above)
Desiliets v. Beecher, 98-E-478, (Rockingham, Coffey, 12/8/98) AFFIRMED
Plaintiff argued that medical documents should have been introduced to show the severity of his medical condition and its impact upon FS tests; "… the Court finds that consideration of medical documents not in Martin's possession at the time he stopped the plaintiff would constitute impermissible hindsight". (NOTE: cross-reference to Section I, above)
Crabb v. Beecher, 98-E-501, (Rockingham, Coffey, 11/30/98) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to ask questions pertaining to identity of plaintiff and way; court held that "A hearings examiner presiding over a quasi-judicial proceeding is analogous to a trial judge or marital master presiding over a bench trial or issues of law case. The Court finds that the facts indicate that the hearings examiner's objective in questioning the plaintiff was meant to clarify the record and was not motivated by bias", citing Suojanen v. Tardif.
Mansur v. Beecher, 98-E-258, (ND Hillsborough, Groff, 11/19/98) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to consider police report that was not provided to him ahead of hearing, resulting in improper ex parte contact; court held that "… the sending of a police report by the prosecutor to the hearings officer without providing a copy of such report to defendant is not a denial of due process nor does it otherwise require or justify reversal of the decision of the Division of Motor Vehicles". (NOTE: cross-reference to actual physical control section)
Stoddard v. Beecher, 98-E-178, (Merrimack, Smukler, 7/29/98) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to consider evidence transpiring after arrest to support conclusion that probable cause existed for arrest; court held that "Although the hearing examiner referenced irrelevant post-arrest facts in his findings, he found sufficient relevant facts, as addressed in the preceding paragraph, to conclude properly that the officer had probable cause for the arrest"; court also held that it was unreasonable for Hearings Examiner to find that open containers were found in vehicle however determined that it was not material to the Hearings Examiner's decision.
Booth v. Beecher, 98-E-293, (Merrimack, McGuire, 10/13/98) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to limit the duration of cross-examination of the police officer to approximately one hour; "the Court finds that the Hearings Examiner allowed ample opportunity for cross-examination, given both the time taken by direct examination and the limited complexity of the issues presented … The Hearings Examiner fairly and appropriately warned petitioner's counsel to focus his cross-examination and did not abuse his discretion in doing so", citing Appeal of Sutton and Petition of Betty Sprague.
Young v. Beecher, 98-E-2, (Merrimack, Manias, 4/22/98) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to permit cross-examination when plaintiff did not have officer's report in front of him; court stated that "Petitioner had a full opportunity to obtain information from Officer LaRoche on direct and cross-examination at the ALS hearing. Petitioner did in fact cross-examine Officer LaRoche about petitioner's demeanor on the night of his arrest … Further, petitioner made no showing that he requested Officer LaRoche's report or that Officer Sequin be present at the hearing"; plaintiff also argued that it was error for the Hearings Examiner to allow Officer LaRoche to testify about another officer's statements when that other officer was not present for the hearing; court stated that "The rules of evidence do not apply in ALS hearings and hearsay may therefore be admitted. The Court finds no reason to doubt the trustworthiness and reliability of Officer LaRoche's testimony. The hearings examiner was free to receive and consider Officer LaRoche's testimony". (NOTE: cross-reference to Section V of refusal)
Charbonneau v. Beecher, 97-E-545, (SD Hillsborough, Dalianis, 1/15/98) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to refuse to view videotape as part of cross-examination of police officer; court held that there was not a denial of due process because although the Hearings Examiner did not view the videotape at that time, "… the hearings examiner did view the videotape prior to issuing the report. Furthermore, petitioner had full access to the videotape prior to the hearing and did engage in extensive cross-examination …", citing Roy v. Water Supply Comm'n and Petition of Betty Sprague; plaintiff also argued that the hearings examiner erroneously permitted one of the state's witnesses to assist the witness testifying by directing that witnesses' attention to a portion of the form, thereby causing the witness to change his testimony; court held that "…any impropriety regarding the incident … did not prejudice petitioner. Furthermore, the Court adds that the conduct of the hearings examiner with respect to this matter did not indicate any bias toward the state". (NOTE: cross-reference to Section II, above and Section I of grounds for stop)
Tardivo v. Beecher, 97-E-372, (SD Hill., Dalianis, 8/18/97) AFFIRMED
Plaintiff argued that it was error for Hearings Examiner to accept and consider police reports which were submitted after the hearing without notice to plaintiff; court held that "although the Hearings Examiner did not strictly follow the administrative rules, the plaintiff has failed to demonstrate any material prejudice suffered as a result of the Examiner's post-hearing admission of the police reports. Indeed, the hearing transcript shows that plaintiff's counsel had the opportunity to, and did in fact, cross-examine the police with respect to the information contained within the reports …".
Love v. Beecher, 96-E-335, (Merrimack, Manias, 1/24/97) AFFIRMED
Plaintiff alleged that statements made by EMT regarding plaintiff's intoxication should not have been considered as they constituted inadmissible hearsay; court stated that the rules of evidence do not apply in adjudicative proceedings, citing RSA 541-A:31 and 33; "therefore, the rules of evidence on hearsay testimony do not apply in ALS hearings and the hearings officer properly received the police officer's testimony". (NOTE: cross-reference to Section I of refusal)
Tonkin v. Beecher, 96-E-96, (Merrimack, Arnold, 7/25/96) AFFIRMED
Plaintiff argued that police report attached to ALS form constituted ex parte evidence; court stated that "the transcript reflects that the hearing examiner verified that the petitioner had a copy of the arrest report, allowed the petitioner an opportunity to review the copy in the hearing examiner's possession, and permitted a continuance, if requested - which the petitioner declined"; plaintiff also argued that Hearings Examiner acted in a prosecutorial manner by allowing the officer to reopen case and by asking questions; court stated "… the hearing examiner did not go beyond mere questioning and assume a prosecutorial role when questioning Officer Nelson".
Guay v. Beecher, 96-E-71, (Rockingham, Gray, 4/26/96) AFFIRMED
Plaintiff made a Motion To Suppress/Dismiss at DMV hearing on basis of no articulable suspicion for initial stop of vehicle; Hearings Examiner ruled that such motions were not properly before him as the defenses normally available to a criminal defendant are not applicable to a civil administrative proceeding; court held that "… the Hearing Examiner and this Court may properly consider Motions based upon the allegation of an illegal stop". (NOTE: very detailed discussion as to why such motions are applicable in an ALS hearing and this case needs to be compared with Keets v. Turner, discussed below; also cross-reference to Section IV of grounds for stop))
Aiken v. Beecher, 96-E-37, (ND Hillsborough, Conboy, 4/4/96) AFFIRMED
Plaintiff alleged that statements made by dispatcher and plaintiff's father in ALS hearing should not have been considered as they constituted inadmissible hearsay; court held that "… even assuming that Mr. Aiken's statements to Officer Selvitella and the statements from police dispatch are hearsay, their admission was not erroneous. The statements were clearly relevant and in view of the nature of the hearing, the hearing officer was not bound by the New Hampshire Rules of Evidence".
Skaubitis v. Beecher, 96-E-45, (Rockingham, Gray, 3/18/96) AFFIRMED
Plaintiff claimed that Hearings Examiner's decision to allow officer to reopen case to correct the date of the arrest from November 18, 1995 to November 22, 1995 was in error and violated due process rights; court held that error was harmless and that "… even in a court proceeding, the presiding Justice may allow either party to reopen their case for the purpose of providing additional evidence, or to allow minor mistakes such as the instant one to be corrected", citing State v. Petkus and State v. Comparone. (NOTE: cross-reference to Section IV of refusal)
Foy v. Beecher, 95-E-339, (SD. Hillsborough, Dalianis, 1/29/96) AFFIRMED
Plaintiff appealed ALS decision but subsequently filed Motion To Reopen with agency which was denied; plaintiff then appealed denial of Motion To Reopen; plaintiff alleged that new evidence had surfaced which affected officer's credibility; officer indicated that he had reported malfunction of traffic light to DOT; after hearing, it was determined that DOT had no record of such a report; court held that "… justice does not require the reception of additional facts which may have occurred subsequent to the hearing. The Petitioner's argument regarding additional facts pertaining to the officer's credibility lacks reason and is irrelevant to the legal and factual findings in this case".
Waltz v. Beecher, 95-E-303, (Merrimack, McGuire, 12/27/95) AFFIRMED
Plaintiff contended that the decision of the Hearings Examiner to reopen the administrative hearing to permit formal identification of the plaintiff as the person arrested was in error; court stated that "… the hearings officer did not abuse her discretion in reopening the hearing to identify the petitioner as the driver", citing State v. Petkus.
Keets v. Turner, E-94-119, (Belknap, O'Neil, W., 11/2/94) AFFIRMED
Plaintiff filed two Motions To Suppress, involving lack of probable cause to make arrest and suppression of statements, at the de novo appeal hearing; court held that "the court finds neither Motion properly applies to this civil appeal", citing Zyla v. Turner; "the only factors the Court need address in the revocation hearing are those that relate to the voluntariness of Plaintiff's choice to forego the test and whether Plaintiff is entitled to her driver's license". (NOTE: cross-reference to Section II, above)
Mongeau v. Turner, 94-E-48-B, (SD Hillsborough, Murphy, 4/11/94) AFFIRMED
Only issue presented was whether or not second refusal was within seven years of first refusal, pursuant to Saf-C 203.18 and 203.18(a); court determined that issue was not within scope of review set forth in RSA 265:91-b II; court stated further that "… even assuming, arguendo, that his claims are within this Court's scope of review, the appellant's argument fails".
Radcliffe v. Turner, 93-E-382, (Merrimack, Arnold, 9/23/93) AFFIRMED
Plaintiff argued that Hearing Examiner's Report was facially invalid because it did not contain findings sufficient to justify action taken, specifically no finding that plaintiff operated a motor vehicle, which is a precondition for application of the implied consent law, citing RSA 265:91-b III, Saf-C 202.21 and 2804.06; court determined that "for its de novo review, this Court does not need written findings of the DMV. Accordingly, this Court rejects plaintiff's argument that the DMV order of revocation should be reversed on grounds of facial invalidity".
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VI. Appeals
McCann v. Beecher, 95-E-359, (Merrimack, Manias, 2/9/96) AFFIRMED
Plaintiff filed appeal of ALS decision but chose not to submit transcript of administrative hearing to superior court; court held that "without a transcript to review, the Court is unable to determine whether the hearing examiner's findings are supported by the evidence. Therefore, the issue of sufficiency of evidence cannot be raised and only errors of law which appear in the record can be raised", citing Bussiere v.Cunningham, Warden and Paine v. Paine. (NOTE: cross-reference to Section III of refusal)
Green v. Beecher, 95-E-26, (Merrimack, McGuire, 3/22/95) AFFIRMED
Plaintiff filed Writ of Mandamus in ALS case because of denial of a Motion To Reconsider; Court determined that plaintiff had an adequate legal remedy under RSA 263:75, which was available to her; "her attorney's assertion that ‘the Department of Safety engaged in conduct intended to fraudulently induce the petitioner into forfeiting her appellate rights‘ is a baseless attempt to create a legal issue to deflect attention from petitioner‘s failure to exercise her appellate rights".
Isabelle v. Turner, 95-E-25, (Rockingham, Gray, 2/23/95) AFFIRMED
Plaintiff filed Writ of Mandamus in ALS case; Court determined that plaintiff had an adequate legal remedy under 263:75, which was available to him; "because adequate relief was available to petitioner under RSA 263:75, writs of mandamus and/or prohibition will not issue in this case".
Kirker v. Turner, 94-E-38, (Cheshire, Brennan, 8/15/94) AFFIRMED
Plaintiff filed de novo appeal of an administrative REVIEW; issue whether court should consider testimonial evidence when only documents were considered at DMV level; court held that it does not believe "… the choice of process before the division should dictate the nature of the proceedings here"; court determined that plaintiff was entitled to a hearing relevant to the factors listed in the statute as reviewable, "… whether heard below or not". (NOTE: cross-reference to Section I of issues involving chemical tests)
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VII. Miscellaneous
Walz v. Beecher, 03-E-109, (Carroll, O'Neill, 02/27/04) AFFIRMED
Arrested for DWI;Petitioner's initial appeal was remanded to the DMV. Court concluded that the weight to afford the field sobriety tests was an issue for the Hearings Examiner to address … ”On remand, the Hearings Examiner … recommended that the suspension of … remain in effect. The Court, finds that the absence of standardized scoring systems does not preclude the trooper from making reasonable, common-sense conclusions based on his observations; and, agrees with the Hearings Examiner that the foregoing facts establish reasonable grounds for believing the Petitioner was driving while under the influence of intoxicating liquor.”
Richmond v. Beecher, 02-E-457, Rockingham, McHugh, 2/7/03) AFFIRMED
Arrested for DWI; informed of implied consent rights; consented to chemical test; test result above the legal minimum; Petitioner failed to allege any error; rather reiterated her version of events. Court held: … review pursuant to RSA 263:75 … has not met her burden of proving by a clear preponderance of the evidence that the suspension order was unjust or unreasonable.
L'Heureux v. Beecher, 02-E-127, (Carroll, O'Neill,, 1/13/03) AFFIRMED
Petitioner contends that the hearings examiner committed an erorr of law by refusing to acknowledge his right to rely upon the defense of competing harms. Court held: … the hearings examiner's determination that the Petitioner's competing harms defense had no basis in fact or in law was correct. From a legal standpoint, the competing harms defense protects an individual from criminal prosecutions. State v. O'Brien, … Petitioner does not point to, …, any authority which suggests that the competing harms defense is available in administrative proceedings.
Ross v. Beecher, 01-E-89, (Sull., Morrillo, 4/10/02) AFFIRMED
Petitioner claims that he was not identified at the ALS hearing as Bryan Ross; the Hearings Examiner concluded that the individual present with his counsel was Bryan Ross; at the hearing, requested by Mr. Ross' attorney, and a third man, who never disputed factually that he was in fact Bryan Ross. At the beginning of the hearing, the hearings examiner asked each person to "state [their] name for the record …" In response Mr. Ross,replied, "Bryan Ross". Court finds evidence to support the hearings officer's finding that the petitioner was Bryan Ross.
Boulanger v. Beecher, 01-E-106, (ND Hillsborough, Sullivan, 9/28/01) LENGTH OF SUSPENSION VACATED
State claims that the hearing officer should not have made a ruling on the length of the suspension citing RSA 265:91-b II;Court rules "it is not an issue for the hearing officer to decide at the ALS hearing." … and "vacates that part of the hearing officer's order specifying the length of the petitioner's suspension." "The length of the … suspension is an administrative determination that is to be made by the respondent based on the petitioner's driver record and in accordance with the statutes and rules." (NOTE: cross-reference Section 7 Factors determining probable cause)
Satish v. Beecher, 01-E-34, (Rockingham, Abramson, 5/31/01) AFFIRMED
Arrested for DWI; hearing held; petitioner originally requested to submit an unofficial copy of the transcript; state objected and moved to have appeal dismissed; Court denied petitioner's request, but granted him thirty days to submit a certified transcript of the proceedings or his appeal would be dismissed; petitioner failed to provide a transcript; court held: "the State appears to waive its request for dismissal in its memorandum of law; thereby ruling on the record. Hearings Examiner's decision is AFFIRMED. (NOTE: cross-reference to Section 8, II choice of tests)
Libbey v. Turner, 92-E-436, (Rockingham, Conboy, 11/9/92) AFFIRMED
This case raised several issues pertaining to the old Implied Consent form: 1) hearing held in untimely manner; 2) whether "sworn" report was filed and 3) whether enough facts were alleged in the report; not much value for new ALS but may have some dicta that could be of some benefit at some point.
Evvard v. Turner, 92-E-231, (Belknap, Fauver, 11/12/92) AFFIRMED
This case raised several issues pertaining to the old Implied Consent form: 1) wording on form inconsistent with statute and 2) whether "sworn" report was filed; limited or no value.
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