Complaints regarding the reasonableness of an ordered “service” plan and arbitrary changes to a “service” plan that has already been ordered can be raised on an appeal to the DMV. There are strict time limits on the filing of appeals.
Strict Time Limits
Any person who attends an approved alcohol program as required by RSA 265-A:42, and is diagnosed during the final exit evaluation with substance abuse, alcohol abuse, or alcohol dependence may request a hearing within 20 calendar days if s/he does not agree with the diagnosis and/or further counseling requirements.
Appellant Has the Burden of Proof
There is a presumption that the original evaluation and the recommendations that resulted from it are correct. On appeal, the appellant will have to prove that the original evaluator failed to comply with the administrative regulations governing the IDCMP evaluation and recommendations.
Evidence of an Invalid Evaluation and/or Recommendations
The “judge” at a hearing on the appeal of an evaluation and/or recommendations is called a Hearings Examiner. The Hearings Examiner will require the appellant to present evidence to demonstrate that the evaluation is invalid or needs modification. Such evidence may include:
- A second opinion from a state licensed alcohol and/or drug abuse counselor. Copies of the second evaluation shall be given to the original evaluator before entering the hearing.
- Any evidence showing that the evaluator did not comply with DHHS regulations governing such evaluations; and/or
- Any other evidence that the person believes demonstrates that the evaluation was incorrect.
At the hearing on the appeal, the Hearings Examiner will limit the hearing to specific issues and evidence. The hearing will be limited to:
- Whether the person has successfully completed the approved alcohol program,
- Whether the original evaluator’s diagnosis is supported by the evidence,
- Whether the requirement of further counseling is appropriate
- Whether an uncontrolled condition (i.e. medical) constitutes a public safety hazard, and
- Whether the appellant is already eligible for license restoration.
After the hearing, the Hearings Examiner will issue an order. If the Hearings Examiner was not persuaded by the appellant that changes to the original evaluation and recommendations are necessary, then the Hearings Examiner will simply sustain the evaluation and requirements. If the Hearings Examiner was persuaded that some modification is appropriate, then s/he will make an order adding to, or subtracting from, the requirements resulting from the original evaluation.
If the order requires no further requirements, then the Hearings Examiner will issue an order and notify the DMV that the appellant is eligible for restoration if there are no other license suspension orders. The appellant may then go to the DMV, pay the restoration fee, and the DMV will issue a new driver’s license.
The Review Hearing
If the order includes further requirements, the appellant must demonstrate compliance with the remaining requirements. Demonstrating compliance means that the appellant must first complete all of the requirements that remained after the hearing. Then the appellant must often request a review hearing with Bureau of Hearings. At that hearing, the appellant must provide proof to the Hearings Examiner that s/he has completed all of the requirements before s/he will be eligible for license restoration. If the Hearings Examiner is persuaded at the review hearing that the appellant has completed all of the requirement, then the Hearings Examiner will issue an order and notify the DMV of the appellant’s eligibility for restoration. The appellant may then go to the DMV, pay the restoration fee, and the DMV will issue a new driver’s license.
This explanation is based on the New Hampshire Code of Administrative Rules primarily in section Saf-C 204.20 and is current law as of this writing [10/16/2019]. This area of law is subject to continuous change over time and any reliance on the explanation is for general information purposed only. This is not legal advice and would be a poor substitution for consultation with the best New Hampshire DWI attorney you can find. The facts of your case may very well change the analysis significantly and make the above information inapplicable.
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