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David_ILM

NH - Double Jeopardy

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This is a problem I had many moons ago when I lived in New Hampshire, but it has always irked me. Back then (in my younger and stupider days) I got arrested for DUI - 2nd Offense. I ended up pleading guilty, and got a 3 year license loss, and had to successfully complete their 7 day Multiple Offender Program in order to get my license back.  In that program you don't just go and pass it, but rather they can stipulate aftercare, such as counseling and/or AA, until someone determines that you are at a low risk to recidivate.  I did all this.

 

However, there was also an implied consent violation that got put on me from the NH DMV, since they said I refused the test.  That is a 2 year administrative license loss, but according to New Hampshire law that suspension can't run concurrently with any other (RSA 265:92 II)

 

After the 3 year license loss, I tried to make a case to get my license back, based on double jeopardy, and that RSA 265:92 II was unconstitutional as-applied towards me. Since I didnt have money for an attorney, I don't think the Courts took me seriously, and of course I lost, and ended up having to wait 5 years to get my license back.  Since then I have learned my lesson, and always take care to take a cab if I am going to have anything to drink at all.

 

My premise was that the consecutive-based 2 year implient consent suspension didn't serve any remedial purpose, since I had already served a 3 year license loss, AND that I couldn't get back my license anyways unless somebody said I was at a low likelihood to recidivate. That in essence it was a second criminal punishment.

 

Just wondering if any legal professionals thought I had a good case, and that perhaps (if so) that somebody in New Hampshire could benefit from something I found to be brutally unfair.

 

Thanks,

 

:) David

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The case you site does not deal with an implied-consent suspension, and does not deal with the consecutive nature. Specifically it states:

 

"Moreover, when, as in this case, the suspension serves the purpose of removing irresponsible drivers from the State's highways for the public's protection, it has been consistently viewed as nonpunitive in nature."

 

My question is that in my case I would have already have had to demonstrate that I was unlikely to recidivate in order to pass the MOP Program, and I had to pass the MOP Program to get my license back, regardless of how long the suspension was. How could the license suspension serve the remedial purpose of keeping an irresponsible person off the highways, when it has already been determined that I am unlike to recidivate?

 

Just because one administrative license suspension is considered to be not double jeopardy, doesn't mean they all are.  If they had run implied consent suspension immmediately and concurrently with my criminal suspension then I would not have considered that to be double jeopardy either.  Then it would have the remedial aim of protecting the public from irresponsible drivers. As it is - I think its a criminal punishment. They want to some version of an enhanced DUI charge, without having to prove the implied consent violation in a court of law.

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Just because one administrative license suspension is considered to be not double jeopardy, doesn't mean they all are.

While in general this may be true, but in every state I have reviewed this in, admittedly only 7, Administrative suspensions have been held not to be double jeopardy.

 

You are free to hire a local attorney and challenge it, knowing it is an uphill and expensive battle you are not likely to win.

 

Just remember it is not us you have to convince, but an elected New Hampshire judge, then the court of appeals and perhaps, then, the New Hampshire supreme court.

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