License Suspension Hearing Time Limit In New Hampshire
If a person whose license is suspended requests a hearing, "the hearing shall be held within 20 days after the filing of the request unless the person requests a continuance. . . . If there is a request that the law enforcement officer be present at the hearing and the officer fails to appear without good cause shown, the case shall be dismissed and the order rescinded." RSA 265:91-b, I(c) (2005).
"Absent an indication of legislative intent to the contrary, the word "shall" acts a command." Appeal of Concord Natural Gas Corp., 121 N.H. 685, 691, 433 A.2d 1291 (1981).
The provision of RSA 265:91-b, I(c) requiring a hearing to be held within twenty days after the filing of the request for the hearing is thus mandatory; however, the legislature has not provided how that mandate is to be enforced.
Under these circumstances, the court must consider two factors to determine the proper mode of enforcement:
(1) consideration of the statutory goals;
(2) consideration of whether the party seeking relief has shown prejudice as a result of the statutory violation. Appeal of Martino, 138 N.H. 612, 615, 644 A.2d 546 (1994).
Under the first consideration, "it is well established that the privilege of holding a driver's license is a legally protected interest which may not be suspended without due process." Bragg v. Director, N.H. DMV, 141 N.H. 677, 678 (1997).
"The fundamental requisite of due process is the right to be heard at a meaningful time and in a meaningful manner. Id.
"The procedures outlined by RSA 265:91-b were designed to afford due process." Id. at 679.
"The primary goal of the administrative license suspension process," however, "is to remove irresponsible drivers from the State's highways as quickly as possible to protect the public." State v. Cassady, 140 N.H. 46, 49, 662 A.2d 955 (1995). Suspension of a driver's license for this purpose is remedial in nature, not punitive. Id.
Under the second consideration, the court must also look to whether the party seeking relief has shown prejudice.