By DAMIEN FISHER, InDepthNH.org
A woman who got her license taken away for being drunk in her running car in a private church parking lot got that decision overturned this week by the New Hampshire Supreme Court.
Dianna Rudder fought the state’s director of the Division of Motor Vehicles, taking her case to the high court after she was arrested in April of 2020 in Enfield. On Wednesday the court issued a split decision in her favor, with the majority ruling that the private church parking lot where she was arrested does not constitute a state “way” under the current driving under the influence laws.
Len Harden, a defense attorney who specializes in DUI cases, said the case is good for people, but does not impact many cases.
“Not a lot of people get stopped in private ways,” Harden said.
Rudder was seen by a police officer in a church parking lot in Enfield getting a bottle of alcohol from the trunk of her car, and then getting back behind the driver’s seat with the engine running, according to court records. Rudder told the officer that she planned to stay in the parking lot until she sobered up, but she planned to call for a ride if need be. Instead, she was arrested and her license was suspended for six months.
During a subsequent hearing in June of 2020, Rudder allowed that the arresting officer had reasonable grounds to believe she was intoxicated. However, she argued that the officer did not have reasonable grounds to believe that she was in control of a vehicle “upon the ways of this state,” as is stipulated in RSA 265-A:31, II(a).
“She argued that the church parking lot where she was arrested is not a ‘way’ within the meaning of (the law,)” the ruling states.
In a dissenting opinion, Justice Anna Barbara Hantz Marconi writes that the legislature may want to act to close this DUI loophole.
“In light of the majority’s opinion, the legislature may wish to clarify its intent that the expanded definition of ‘way’ in RSA 259:125 II should apply to the Implied Consent Law and the ALS process,” she wrote.
Under the law, an intoxicated person behind the wheel of a parked car that is on the side of a road or in a parking lot with public access, can be charged with DUI, even if their intent is to sober up or wait for a ride.
Harden said drivers do have options in these situations. The legislature recently allowed a change for people who are “sheltering” in their cars, he said. As long as they are not in the driver’s seat, an intoxicated person can be in their car.
“That’s something that people should know,” he said. “People try to do the right thing, but they stay in the driver’s seat. What they should do is get in the back seat or passenger seat.”
Pat Sullivan, with the New Hampshire Chiefs of Police Association, said police are in a difficult position when they encounter an intoxicated person in these situations. If the officer leaves them be, the driver might get into an accident or suffer carbon monoxide poisoning from the car’s exhaust.
Harden said too much of the legislation surrounding DUIs excludes basic common sense. He believes police need to have more options when dealing with possibly intoxicated drivers who are trying to do the right thing. Police should be able to drive people to a hotel where they can sober up instead of arresting them.
“There’s a lack of common sense and discretion,” Harden said.
Sullivan said officers need to have the ability to use more discretion.
“It’s one of those things, we’re all about public safety. It could be better to take that person into protective custody and release them to a sober individual if possible,” Sullivan said.
