If you are facing a DUI charge in New Hampshire, you may have heard that getting your license back could come with a catch: an ignition interlock device.
For many drivers, the interlock requirement is one of the most disruptive and expensive consequences of a DWI case. It can continue long after the original period of license suspension has ended. And in some cases, a driver may resolve the DWI charge in court only to receive a notice weeks or even months later requiring a separate hearing before the New Hampshire Department of Safety.
Understanding how the ignition interlock system works — and recognizing that the court and Department of Safety processes are not necessarily the same thing — can prevent some unpleasant surprises.
What Is an Ignition Interlock Device?
An ignition interlock device, commonly called an IID or interlock, is a breath-testing unit connected to a vehicle. Before starting the vehicle, the driver must provide a breath sample. If the device detects alcohol at or above its programmed threshold, the vehicle will not start.
New Hampshire currently requires enhanced-technology devices that can record and transmit information about their use. The devices also require “rolling retests” after the vehicle has been started.
The device records events such as failed breath tests, missed retests, unauthorized starts, power interruptions, and possible tampering or circumvention. This information can be reported to the Department of Safety and can result in further administrative action.
The interlock therefore does more than prevent a person from starting a vehicle after drinking. It also acts as an ongoing monitoring system.
Only approved devices may be used in New Hampshire, and installation and servicing must be performed through an approved interlock provider.
When Is an Interlock Mandatory in New Hampshire?
New Hampshire’s ignition interlock requirements are primarily found in RSA 265-A:36.
An interlock is mandatory in several important situations.
Aggravated DWI.
A person whose license has been suspended or revoked for aggravated DWI must generally install an ignition interlock after completing the underlying period of suspension or revocation.
Aggravated DWI can arise from circumstances including a blood alcohol concentration of .16 or higher, driving more than 30 miles per hour over the speed limit, attempting to elude police, causing serious bodily injury, or carrying a passenger under age 16.
For the mandatory interlock period, the device is generally required for at least 12 months and no more than two years.
Second or Subsequent DWI
A person convicted of a second or subsequent DWI is likewise subject to a mandatory ignition interlock requirement after the applicable license revocation or suspension has been completed.
The required interlock period is generally between 12 months and two years.
Driving After Suspension or Revocation Resulting From a DWI
Another mandatory category is sometimes overlooked.
If a person is convicted of driving while his or her license is suspended or revoked as a result of a DWI offense, the court must require an ignition interlock for the remaining period of suspension or revocation, followed by an additional period of at least 12 months and no more than two years.
The court can also impose an interlock temporarily before conviction as a condition of bail.
Can an Interlock Be Required Even When It Is Not Automatically Mandatory?
Yes.
New Hampshire law also gives both the courts and the Department of Safety authority to require ignition interlock devices in circumstances outside the principal mandatory categories.
For example, a court may impose an interlock in a case prosecuted as a first offense if the person is nevertheless found to have one or more prior DWI convictions.
A court may also require a driver under age 21 whose license has been suspended or revoked for DWI to use an interlock until age 21 or for at least 12 months, whichever period is longer.
There is also a separate and extremely important source of authority: the New Hampshire Department of Safety.
Your Court Case May Be Over — and the Department of Safety May Still Order a Hearing
This is one of the most misunderstood aspects of New Hampshire’s ignition interlock law.
Many people understandably assume that once they have gone to court, accepted a plea agreement, been sentenced, and learned the length of their license loss, they know all of the consequences of the case.
That is not always true.
RSA 265-A:36-a gives the Commissioner of Safety independent authority to require an administrative hearing following convictions for DWI and certain other alcohol-related offenses. After the hearing, the Department may require an ignition interlock as a condition of restoring the person’s driving privileges if it finds that doing so would enhance the safety of the driver and other highway users.
This means that a person can resolve a DWI case in court without the judge ordering an ignition interlock, only to receive a notice from the Department of Safety later requiring the person to appear for an administrative interlock hearing.
For someone who did not know this second process existed, that notice can come as a considerable surprise.
The judge or prosecutor in the criminal case may not have discussed the possibility of a later Department of Safety hearing. That does not necessarily mean anyone did anything improper. The prosecutor represents the State, not the defendant, and the court is not the defendant’s legal adviser. A criminal plea and sentence also do not necessarily determine every separate administrative consequence affecting a person’s driver’s license.
That is one reason it is important to understand the licensing consequences of a DWI before deciding how to resolve the criminal case.
What Can the Department of Safety Do?
After an administrative hearing under RSA 265-A:36-a, the Commissioner may require an ignition interlock for at least 12 months and no more than two years as a condition of restoration of driving privileges.
The statute expressly includes convictions for ordinary DWI under RSA 265-A:2, as well as aggravated DWI and several other alcohol-related offenses.
New Hampshire’s administrative rules identify circumstances under which an interlock hearing may be scheduled, including certain prior DWI or alcohol-related histories, elevated alcohol concentrations, prior refusals or administrative license consequences, and cases involving drivers under age 21.
The critical point is that a first-offense DWI does not always mean that ignition interlock is impossible simply because the criminal court did not order one. The Department of Safety has its own statutory authority and its own administrative process.
Which Vehicles Must Have an Interlock?
This is another area that frequently causes confusion.
RSA 265-A:36 requires installation in vehicles registered to or used by a person who is subject to the interlock requirement.
But there is an even more important rule once the person is subject to an interlock restriction:
The restriction follows the driver, not merely the vehicle.
RSA 265-A:37 provides that a person subject to an interlock order may not drive any motor vehicle that is not equipped with the required device.
That means installing an interlock in your primary vehicle does not give you permission to avoid the requirement by driving something else.
You cannot simply drive your spouse’s car, borrow a friend’s truck, or use another unequipped vehicle because your regular vehicle has the interlock installed.
If you are legally restricted to driving an interlock-equipped vehicle and you are caught driving a vehicle without one, you can face additional criminal and licensing consequences.
Likewise, another person cannot lawfully help an interlock-restricted driver circumvent the requirement by starting the vehicle for that person or knowingly providing an unequipped vehicle in violation of the statute.
What Happens If Someone Else Blows Into the Interlock?
Another common problem occurs when someone other than the restricted driver provides a breath sample.
People sometimes assume that because a spouse, friend, child, mechanic, or other person is sober, there is no problem with that person blowing into the machine.
That can be a serious mistake.
New Hampshire law prohibits attempts to tamper with or circumvent an ignition interlock order. It also specifically prohibits starting an interlock-equipped vehicle for the purpose of making the vehicle available to a person who is legally required to use the device, subject to limited exceptions involving safety or mechanical repair where the restricted person does not drive the vehicle.
Modern enhanced interlock devices also record substantial information about their use, including images associated with testing events.
Even innocent situations can therefore create questions that may later need to be explained.
What Happens If You Fail a Breath Test or Miss a Retest?
A failed interlock test should not be viewed simply as an inconvenience that prevents the vehicle from starting.
The device records the event.
New Hampshire law allows the Department of Safety to take further action after certain interlock violations. For example, if a restricted driver attempts to start the vehicle with an alcohol concentration greater than .025, fails to take a required retest, or provides a retest greater than .025, the Department may hold a hearing and impose an additional interlock period of up to one year for each occurrence.
Other problems can also lead to hearings and sanctions. These include repeated failures to pass breath tests, failure to comply with required maintenance or calibration, evidence of tampering or circumvention, unauthorized engine starts, and certain power disconnections.
Following a hearing, the Commissioner can impose additional license suspension or revocation.
The practical lesson is important: once an interlock is installed, take every failed test, missed test, service requirement, or unusual event seriously.
If someone else uses the vehicle and generates a failed test, or if an event occurs for an innocent reason, do not simply assume that the Department will automatically know the explanation. The device records data; it does not necessarily record the full story behind the data.
A Department of Safety hearing may be required to determine what happened.
You May Need a Violation-Free Period Before the Device Can Be Removed
Reaching the calendar date when you believe your interlock requirement should end does not necessarily mean you can simply remove the device.
New Hampshire has an ignition interlock removal protocol. Before removal, the interlock provider and Department review the driver’s compliance history. Certain violations during the final portion of the interlock period can delay removal and require an additional period of compliance.
This is another reason violations near the end of an interlock term can be particularly frustrating. A driver who believed the requirement was almost finished may discover that an incident has extended the time before the device can legally be removed.
Who Pays for the Ignition Interlock?
Ordinarily, the person subject to the interlock requirement is responsible for installation, monitoring, servicing, and related costs.
Because an interlock may be required for a year or longer, those costs can become substantial.
New Hampshire does provide a financial-hardship procedure. A person who cannot afford the program may request a hearing and seek a credit of up to 75 percent of qualifying installation and service costs under the Department’s rules.
An Ignition Interlock Is More Than Something You Install in Your Car
The most important thing to understand about New Hampshire’s ignition interlock laws is that the requirement is not simply, “put this machine in your car.”
It is a restriction on your privilege to drive.
Once you are subject to an interlock order:
- you generally may drive only properly equipped vehicles;
- the device monitors and records your use;
- failed or missed tests can result in further Department of Safety proceedings;
- circumvention can create separate criminal consequences;
- violations can extend the amount of time you remain subject to the requirement; and
- your obligations may continue even after you believed the original DWI case was finished.
Perhaps most importantly, the sentence imposed in the criminal DWI case is not necessarily the last word on ignition interlock. The Department of Safety has separate administrative authority, and in appropriate cases it can schedule an interlock hearing after the conviction.
Talk to a New Hampshire DWI Attorney Before You Plead
Whether an interlock will be required — and for how long — often depends on how your case is charged and resolved. The difference between an aggravated DWI and a standard first offense, or between a plea negotiated with your record in mind and one entered without a full picture of the consequences, can mean a year or more of interlock use and thousands of dollars in costs.
If you have been arrested for DWI in New Hampshire, an experienced DWI defense attorney can review the facts of your case, challenge the evidence where appropriate, and work to minimize the impact on your license, your wallet, and your daily life. Contact our office today for a consultation.