CONCORD — A key House committee narrowly rejected legislation Tuesday to permit someone to avoid drunken or drugged driving charges if they got into the passenger or back seat of a car to sleep it off.
The measure would carve out an exemption to the operating under the influence laws to allow someone who is impaired enough to be over the legal limit to escape prosecution by getting into the car — as long as it’s not behind the wheel.
After a lengthy debate, the House Transportation Committee voted, 9-8, to recommend killing this Senate-passed bill (SB 34).
The full House will take up this recommendation early on in the 2020 legislative session.
Supporters say it’s the best way to send a message that if you’re out drinking and have gone too far, you have an option to stay off the road in your car.
“If you are sleeping, resting or sheltering in place in the passenger seat or in the back seat, you are not in a position to control the vehicle,” said state Rep. Peter Tosarian, R-Atkinson.
“I think it’s a commonsense bill that gives more people an option to not drive.”
Rep. Steven Smith, R-Charlestown, said the Senate bill was confusing.
Smith offered up an amendment to simply give the motorist protection if they were not in the driver’s seat.
“If the person is in a car and at the driver controls, then they could be found guilty and could be arrested,” Smith said.
The bill Franklin Republican Sen. Harold French wrote and the Senate passed on a voice vote would amend the definition of “operating” a car while impaired by drugs or alcohol.
French’s bill would let that driver not only sleep it off but sit in the driver’s seat with the motor running as long as that person doesn’t have the “intent” to drive away.
“I call that sentence the lawyers’ employers act,” Smith said of the Senate language.
The panel failed, 9-8, to pass Smith’s stripped-down version before it voted to recommend killing the bill.
Smith said courts in three other states with similar laws as New Hampshire were overturned by legal challenges because police could not prove the person had the intent to drive impaired.
“We are supposed to prosecute people for stuff they actually did, not for what they might do even five minutes from now,” Smith said.
But Committee Vice Chairman Michael O’Brien, a retired deputy fire chief, said police officers on the street are the ones who should be making these judgment calls.
“I think if the committee passes this, we have now acted as judge and jury on DWI charges,” O’Brien, D-Nashua, said.
“Now you are taking someone who is obviously impaired and you are asking them to make a good decision, but can they? They are impaired. If there were obviously signs of no intent to be driving, that could be brought up in a court of law and that would allow a judge to decide.”
Opponents also said the person doing the drinking or drug using should have a backup plan such as a designated driver or someone else to give them a ride home.
Rep. Sherman Packard, R-Londonderry and a former deputy speaker, disagreed.
“Right now the police are becoming judge and jury by arresting someone who has done nothing wrong at all,” Packard said.
“I will admit I have become conflicted about this but I think it’s a good step forward,” he said.
Supporters say those arrested this way for drunken or drugged driving on occasion can beat the charge before a judge, but it costs an average of $7,000 in legal fees.
“What about the people who go out to dinner, have that second glass of wine and decide, ‘If I do get in the back seat for a little while I’ll be better to drive later’?” asked Rep. Thomas Walsh, R-Hooksett. “I don’t want everybody to look at this as the worst-case scenario. This could help a lot of people.”
Committee Chairman George Sykes, D-Lebanon, and a deputy fire chief himself, said he’s not seen enough evidence that the current laws have been abused.
“Much of the discussion has been around that perfect scenario. This ignores the fact we have spent 40 years of strengthening our DWI laws because of the vast costs to society by people who are driving drunk,” Sykes said.
“I am adamantly opposed to loosening our DWI standards, particularly when we have no data to show it is a particular problem for many people.”
The New Hampshire Department of Safety, the Association of Chiefs of Police and the Police Association all opposed the bill.
Every Republican on the committee endorsed Smith’s amendment, while House Democrats split 9-2 against it.