Dianna Rudder v. Director, New Hampshire Division of Motor Vehicles

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton
No. 2021-0014

DIANNA RUDDER

v.

DIRECTOR, NEW HAMPSHIRE DIVISION OF MOTOR VEHICLES

Argued: September 28, 2021
Opinion Issued: March 16, 2022

DesMeules Olmstead & Ostler, of Norwich, Vermont (Cabot Teachout on
the brief and orally), for the petitioner.

John M. Formella, attorney general (Emily C. Goering, assistant attorney
general, on the memorandum of law and orally), for the Director, Division of
Motor Vehicles.

BASSETT, J. The petitioner, Dianna Rudder, appeals an order of the
Superior Court (Bornstein, J.) upholding the administrative suspension of her
driver’s license by the New Hampshire Division of Motor Vehicles (DMV). See
RSA 265-A:30, :34 (2014). The petitioner’s license was suspended, and that
suspension was upheld, on the grounds that she was “in actual physical
control of a vehicle upon the ways of this state” while intoxicated. RSA 265-
A:31, II(a) (2014); see also RSA 265-A:30, :34. She argues that the trial court
should have overturned the suspension of her license because the hearing
examiner erred when he applied the definition of “way” contained in RSA
259:125, II (2014). We agree with the petitioner and reverse.

The following facts are supported by the record or are not in dispute. On
April 19, 2020, the petitioner was sitting in her vehicle, which was parked with
the engine running in a private church parking lot in Enfield. A police officer
observed the petitioner exit the vehicle, retrieve a bottle of alcohol from the
trunk, and return to the driver’s seat. The officer approached the petitioner,
who informed him that she was sober when she arrived at the church and that,
before leaving, she intended to wait until she was sober or call for a ride. The
officer administered a field sobriety test, which the petitioner failed. The officer
arrested the petitioner for driving under the influence. The officer then asked
the petitioner to take a breath test, and informed her that refusing to submit to
the test or testing above the legal limit for blood alcohol concentration specified
in RSA 265-A:30 would result in suspension of her license. See RSA 265-A:8
(Supp. 2020). The petitioner submitted to the breath test, which showed her
blood alcohol content exceeded the legal limit. The officer confiscated the
petitioner’s license and issued a temporary driving permit. See RSA 265-A:30,
III.

The officer submitted a sworn report to the Department of Safety
certifying the results of the breath test. On April 22, 2020, the department
notified the petitioner that her license would be suspended for six months,
effective May 19, 2020. See RSA 265-A:30, I-II. Administrative license
suspension, or “ALS,” is a remedial process that may proceed independently of,
and precede, criminal charges for driving under the influence of drugs or liquor
(DUI). See RSA 265-A:30; State v. Cassady, 140 N.H. 46, 49-50 (1995). Any
person whose license has been suspended under RSA 265-A:30 may request
either an administrative review or a hearing to review the suspension. RSA
265-A:31 (2014). On May 8, 2020, the petitioner challenged the suspension of
her license and requested a hearing.

The hearing was held on July 16, 2020. The petitioner stipulated that
the arresting officer had reasonable grounds to believe she was intoxicated.
However, the petitioner argued that the officer did not have reasonable grounds
to believe that the petitioner was in control of a vehicle “upon the ways of this
state.” 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 RSA 259:125. RSA 259:125
provides that “way” shall mean:

I. Except as provided in paragraph II, the entire width between the
boundary lines of any public highway, street, avenue, road, alley, park or
parkway, or any private way laid out under authority of statute, or any
such way provided and maintained by a public institution to which state
funds are appropriated for public use, or any such way which has been

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 used for public travel thereon, other than to and from a toll bridge or
ferry, for 20 years, or any public or private parking lot which is
maintained primarily for the benefit of paying customers;

II. For the purposes of RSA 265:71, IV, RSA 265:79, RSA 265-A:2,
I, and RSA 265-A:3, any public highway, street, avenue, road, alley,
park, parking lot or parkway; any private way laid out under authority of
statute; ways provided and maintained by public institutions to which
state funds are appropriated for public use; any privately owned and
maintained way open for public use; and any private parking lots,
including parking lots and other out-of-door areas of commercial
establishments which are generally maintained for the benefit of the
public.

RSA 259:125, I-II. The petitioner argued that the church parking lot where she
was arrested does not meet the definition in paragraph I because it is private,
not laid out with the use of public funds, nor maintained for the benefit of a
commercial establishment. The petitioner also argued that the definition in
paragraph II does not apply in ALS hearings held pursuant to RSA 265-A:31,
because the ALS statute, RSA 265-A:30, is not one of the four statutes listed in
paragraph II.

The hearing examiner upheld the license suspension, concluding that the
State met its burden of showing that the officer had reasonable grounds to
believe the petitioner was on a “way” at the time of her arrest. In so ruling, the
hearing examiner applied the definition of “way” found in paragraph II of RSA
259:125. The hearing examiner ruled that, despite the fact that RSA 265-A:30
is not included among the statutes listed in paragraph II, ALS “is intertwined
with, and closely related to, and in fact, is based on an arrest for [DUI].” The
hearing examiner therefore decided that, because paragraph II applies to DUI,
it “may reasonably be inferred to apply” to an ALS hearing. Additionally, the
hearing examiner cited State v. Lathrop, 164 N.H. 468 (2012), for the
proposition that “any roadway that allows public access, even if a private road,
unless access is blocked by a bar or a gate, is a public way.”

The petitioner appealed to the superior court. See RSA 265-A:34, II.
She argued that, because RSA 265-A:30 is not one of the four statutes listed
in paragraph II of RSA 259:125, it was error for the hearing examiner to
apply that definition in an ALS hearing held pursuant to RSA 265-A:31.
The court upheld the hearing examiner’s decision, observing that “[t]here is
evidence in the record to support the hearing examiner’s finding that the
area in which the petitioner’s vehicle was located at the time of her arrest
under RSA 265-A:2, I[,] was a ‘way’ within the meaning of RSA 259:125, II.”
This appeal followed. On appeal, the parties address only the issue of
whether it was proper for the trial court to uphold the hearing examiner’s
decision to apply the definition of “way” set forth in RSA 259:125, II.

3
 In an appeal of a license suspension to the superior court, the
petitioner has the burden to show that the hearing examiner’s order was
clearly unreasonable or unlawful. Kerouac v. Dir., N.H. Div. of Motor
Vehicles, 158 N.H. 353, 355 (2009); RSA 265-A:34, III. The trial court is
required to treat the hearing examiner’s findings of fact on questions
properly before the examiner as prima facie lawful and reasonable, and may
not set aside or vacate the decision unless the court is satisfied, by a clear
preponderance of the evidence before it, that the decision is unjust or
unreasonable. Kerouac, 158 N.H. at 355; RSA 265-A:34, III. We will uphold
the trial court’s decision on appeal unless the evidence does not support it
or it is legally erroneous. Kerouac, 158 N.H. at 355.

The petitioner argues that “[t]he plain language of the statute and rules
of statutory construction are clear” that paragraph II of RSA 259:125 does not
apply in ALS hearings held pursuant to RSA 265-A:31. She maintains that the
legislature “specifically and intentionally restricted” application of paragraph II
to four statutes, and that RSA 265-A:31 is not one of them. The State counters
that the petitioner’s interpretation of RSA 259:125 “defies the purpose of the
statutory scheme, is contrary to the intent of the legislature, and produces an
absurd result.” We agree with the petitioner.

The petitioner’s argument raises an issue of statutory interpretation,
which presents a question of law subject to our de novo review. See Rogers v.
Rogers, 171 N.H. 738, 743 (2019). In matters of statutory interpretation, our
goal is to apply statutes in light of the legislature’s intent in enacting them and
in light of the policy sought to be advanced by the entire statutory scheme.
Lathrop, 164 N.H. at 469. We first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Rogers, 171 N.H. at 743. We interpret legislative intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include. Id. When the
language of a statute is unambiguous, we do not look beyond it for further
indications of legislative intent. Id.

In Lathrop, we explained that the application of the definition of “way”
set forth in RSA 259:125, II “is specifically limited to four statutes.” Lathrop,
164 N.H. at 471. Two of the four statutes listed in paragraph II concern DUI:
RSA 265-A:2, I (2014) and RSA 265-A:3 (Supp. 2020). None pertains to ALS.
See RSA 259:125, II. The State nonetheless contends that ALS and DUI are “so
intertwined” and “inextricably connected as part of a statutory scheme” that
because paragraph II applies to DUI, it “must be imported to apply to ALS.”
However, the State premises its argument on the mistaken notion that the ALS
and DUI statutory schemes are coextensive. Far from being so inextricably
connected that we should ignore the plain language of RSA 259:125, as we

4
have observed, DUI and ALS “are intended to operate independently.” Cassady,
140 N.H. at 49-50. Although the same events may give rise to both DUI
charges and ALS, the State may press DUI charges even if a driver’s license is
not suspended, see, e.g., id. at 47-50, and the ALS statutory scheme
contemplates that a person’s license may be suspended even if they are not
convicted of DUI, see RSA 265-A:32 (2014) (prescribing the length of license
suspension “[w]here a license . . . has been suspended under RSA 265-A:30
and the person is also convicted on criminal charges”).

The language of paragraph II, by its express terms, applies to only the
four listed statutes. See St. Joseph Hosp. of Nashua v. Rizzo, 141 N.H. 9, 11-
12 (1996) (explaining the familiar axiom of statutory construction expressio
unius est exclusio alterius, which means that “the expression of one thing in a
statute implies the exclusion of another” (quotation omitted)). Because the
language of RSA 259:125, II is plain and unambiguous, and because we will
not add language that the legislature did not see fit to include, see Petition of
Carrier, 165 N.H. 719, 721 (2013), we hold that the trial court erred when it
construed paragraph II to apply to ALS proceedings under RSA 265:A-31.
Therefore, it erred when it applied paragraph II in upholding the petitioner’s
license suspension.

Nonetheless, the State asserts that an interpretation based solely upon
the plain language of RSA 259:125, II produces an absurd result. Because the
statute is clear on its face, we will look beyond the language of the statute only
if a plain reading would compel an absurd result. State v. Maxfield, 167 N.H.
677, 681 (2015). Here, we are not persuaded that an absurd result follows
from a plain reading of RSA 259:125, II.

The State advances three specific arguments in support of its assertion
that absurd results would follow from a plain reading of RSA 259:125, II. First,
the State argues that applying the plain language of paragraph II produces
absurdity by creating “special locations where someone could be convicted of
DUI, but free from the parallel ALS.” The State contends that it would be
absurd for the statute to impose lesser penalties on DUI offenders who choose
to “drunk driv[e] in the right location.” We disagree.

We have held that a literal reading of a statute leads to absurd results
when it makes untenable distinctions between persons who are identically
situated. For example, in State v. Breest, 167 N.H. 210, 213-14 (2014), we
interpreted a statute that provides relief for defendants who have obtained a
favorable post-conviction DNA test result, and found a literal interpretation of
the statute absurd because it would offer relief to defendants who obtained the
test through court order, but not those defendants who obtained the test with
the State’s consent. Likewise, in State v. Gallagher, 157 N.H. 421, 423 (2008),
we held that the literal interpretation of a DUI sentencing statute would lead to
“disproportionate results among people who have committed the same

5
offenses.” Absent a plausible explanation for such an outcome, we held that a
literal reading of the statute would lead to an absurd result. Id. at 423-24.

Here, a literal interpretation of RSA 259:125 results in the identical
treatment of identically situated people, and disparate treatment of differently
situated people. As written, there is almost complete overlap between the
locations covered by the two definitions. Only two types of ways are included
in paragraph II but not paragraph I: ways that are privately owned and
maintained, while open for public use, see Lathrop, 164 N.H. at 470; and
public and private parking lots not maintained for commercial use. RSA
259:125, II. Indeed, in light of their physical location, intoxicated individuals
controlling vehicles on these two types of ways are not engaged in the same
conduct as those controlling vehicles on other types of ways. In contrast with
the statutory distinctions addressed in Gallagher and Breest, the distinction
between individuals based on where they control their vehicles, which is a
function of RSA 259:125, is tenable. The legislature made the choice to apply
the more expansive definition of “way” in paragraph II to only four specific
statutes, and it did not include the ALS hearing statute, RSA 265-A:31. RSA
259:125, II. The legislature may have decided that it was undesirable or
unnecessary to apply the expedited ALS process to individuals controlling
vehicles in a few locations where, arguably, there is less danger to the public.
The dissent concludes that it would have been absurd for the legislature to
limit the application of paragraph II to only four statutes; we, however, are not
so quick to discredit that decision: “The wisdom, effectiveness, and . . .
desirability of a statute is not for us to decide. Nor may we substitute our
judgment for that of the legislature.” Appeal of Town of Lincoln, 172 N.H. 244,
253 (2019) (quotation omitted).

We also reject the State’s second absurdity argument. The State argues
that limiting the application of paragraph II to the four enumerated statutes
would lead to an absurd result because the examiner at an ALS hearing would
apply a different definition of “way” than the arresting officer. The State asserts
that, because an officer applies paragraph II for the purposes of arresting
someone for DUI, it would be absurd for the examiner at an ALS hearing to not
apply paragraph II when evaluating whether the officer had reasonable grounds
to impose ALS. This argument again relies on the false premise that DUI
charges and ALS are coextensive. It also assumes that officers in the field will
be unable to apply the correct definition of “way” when deciding whether to
arrest someone for driving while intoxicated, suspend their license, or both.
When determining whether to suspend a driver’s license, officers apply only the
definition of “way” set forth in paragraph I — the paragraph that a hearing
examiner must apply when reviewing the license suspension. Even if, as the
State posits, an officer in the field were to mistakenly apply paragraph II rather
than paragraph I in regard to an administrative license suspension, the error
could be rectified during the ALS hearing process.

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 Nor are we persuaded by the State’s third absurdity argument. The State
raises the specter that limiting the application of paragraph II to the listed
statutes would undermine the DUI statutory scheme. The State directs our
attention to a number of DUI statutes that include the word “way” but are not
listed in paragraph II, such as RSA 265-A:4, :11, and :21, arguing that, if we
limit the application of paragraph II to only the four listed statutes, the
enforcement of these other DUI laws will be hindered. The State asks us to
disregard the plain language of RSA 259:125, II based merely on the
speculative impact that our construction might have on certain DUI statutes.
As in Lathrop, we decline to alter our interpretation of RSA 259:125, II based
on “hypothetical effect[s] on other areas of the law.” Lathrop, 164 N.H. at 471.
Because we are not persuaded that a literal interpretation would produce
absurd results, we decline the State’s invitation to consider the statute’s
legislative history. See Maxfield, 167 N.H. at 682.

For the foregoing reasons, we conclude that the trial court and the
hearing examiner erred as a matter of law by applying the definition of “way”
set forth in RSA 259:125, II to an ALS proceeding under RSA 265:A-31. Of
course, if the legislature disagrees with our interpretation of RSA 259:125, II,
then “it is free, subject to constitutional limitations, to amend the statute.” See
State v. Dor, 165 N.H. 198, 203, 205-06 (2013).

Having determined that the hearing examiner erred by applying the
definition of “way” contained in paragraph II, we can uphold the suspension of
the petitioner’s license only if the church parking lot comes within the
definition of “way” set forth in paragraph I. Neither the hearing examiner’s
report nor the trial court order addressed whether the church parking lot is a
“way” under the paragraph I definition. Therefore, we ordinarily would remand
this issue for determination in the first instance. Simpson v. Young, 153 N.H.
471, 474 (2006). “However, when a lower tribunal has not addressed a factual
issue, but the record reveals that a reasonable fact finder necessarily would
reach a certain conclusion, we may decide that issue as a matter of law.” Id.
Here, the parties agree that the church parking lot where the petitioner was
arrested is private, was not laid out at the direction of the State, is maintained
by a private institution without state funds, and serves a non-commercial
establishment that does not have paying customers. These facts are sufficient
for us to determine that, as a matter of law, the church parking lot does not
meet the definition of “way” within paragraph I. See RSA 259:125, I.

Reversed.

HICKS and DONOVAN, JJ., concurred; HANTZ MARCONI, J., dissented.

HANTZ MARCONI, J., dissenting. I conclude that the “ways of this state”
upon which a driver has given implied consent pursuant to RSA 265-A:4
(Supp. 2021) are coextensive with the “ways” upon which the driver can be

7
arrested for DUI pursuant to RSA 265-A:2, I (2014) — i.e., all ways included
within the expanded definition of “way” set forth in RSA 259:125, II (2014). It
follows that “the ways of this state” in RSA 265-A:31 (2014), the administrative
license suspension review statute, must also be coextensive with the “ways”
upon which the driver can be arrested for DUI. Accordingly, I respectfully
dissent.

The majority observes that RSA 265-A:31 is not one of the four statutes
listed in RSA 259:125, II, and concludes that the legislature thereby intended
that the expanded definition of “way” in paragraph II not apply to
administrative license suspension (ALS) proceedings. By construing RSA
259:125, II in isolation, and by failing to consider RSA 259:1 (2014), the
majority errs.

Paragraph II provides that “for the purposes of” four statutes, the
expanded definition of “way” shall apply. The listed statutes all prohibit certain
conduct. In particular, RSA 265-A:2, I, prohibits driving or attempting to drive
upon any way while under the influence of drugs or liquor. The “purposes” of
those four statutes include deterring persons from committing the conduct
prohibited thereby. Thus, by its own terms, RSA 259:125, II should apply
when doing so furthers, inter alia, “the purposes of” RSA 265-A:2, I — the
prohibition of driving or attempted driving by persons under the influence of
drugs or liquor.

One means by which the legislature has attempted to prevent such
conduct is through the Implied Consent Law, RSA 265-A:4, and the related
administrative license suspension procedures. The Implied Consent Law
provides, in relevant part:

Any person who . . . drives or attempts to drive a vehicle upon the ways
of this state . . . shall be deemed to have given consent to physical tests
and examinations for the purpose of determining whether such person is
under the influence of intoxicating liquor or controlled drugs,
. . . if arrested for any offense arising out of acts alleged to have been
committed while the person was . . . driving, attempting to drive, or in
actual physical control of a vehicle . . . while under the influence of
intoxicating liquor or controlled drugs, prescription drugs, over-the-
counter drugs, . . . which impair a person’s ability to drive or while
having an alcohol concentration in excess of the statutory limits
contained in RSA 265-A:2 or RSA 265-A:3.

RSA 265-A:4 (emphasis added). As we have explained, “the purpose of the
statute is to prevent operation of cars by persons under the influence of
intoxicating liquor.” State v. Mfataneza, 172 N.H. 166, 169 (2019) (quotation
omitted); see State v. Cassady, 140 N.H. 46, 49 (1995) (“The primary goal of the
administrative license suspension process is to remove irresponsible drivers

8
from the State’s highways as quickly as possible to protect the public.”). “The
major premise of the implied consent law is that it will aid the prosecution of
the guilty and the protection of the innocent.” Mfataneza, 172 N.H. at 169
(brackets and quotation omitted).

The Implied Consent Law applies to persons who drive on the “ways of
this state.” Because RSA 259:125, II does not include RSA 265-A:4 in its list of
statutes, it follows from the majority’s analysis that the majority believes that
the expanded definition of “way” in paragraph II does not apply to the Implied
Consent Law, and, therefore, intoxicated drivers driving in areas such as the
church parking lot in this case are not deemed to have consented to testing
when arrested for DUI. I disagree. As specifically stated in RSA 265-A:4, one
purpose of the Implied Consent Law is to determine if a driver, driving or
attempting to drive upon the “ways of this state,” is under the influence of
liquor “while having an alcohol concentration in excess of the statutory limits
contained in RSA 265-A:2 or RSA 265-A:3.” In other words, one reason for the
tests to which drivers are deemed to have given implied consent is to determine
whether the driver has violated RSA 265-A:2 or :3. Since we must read
statutes together, I conclude that the term “ways,” as used in RSA 265-A:4,
means the same as the term “way” in RSA 265-A:2 and :3 — that is, the term
“ways” in RSA 265-A:4 includes every way upon which it is an offense to drive
while intoxicated. Thus, the term “ways” in RSA 265-A:4 means the same as
the expanded definition of “way” in RSA 259:125, II. See RSA 21:3 (2020).

RSA 265-A:30 (2014) provides, in relevant part:

I. If any person . . . submits to a test described in RSA 265-A:4 which
discloses an alcohol concentration of 0.08 or more . . . , the law
enforcement officer shall submit a sworn report to the department. In
the report the officer shall certify that the test was requested pursuant to
RSA 265-A:4 and that the person . . . submitted to a test which disclosed
an alcohol concentration of 0.08 or more . . . .

II. Upon receipt of the sworn report of a law enforcement officer
submitted under paragraph I, the department shall suspend the person’s
driver’s license or privilege to drive . . . .

(Emphasis added.) Because the petitioner submitted to a test described in RSA
265-A:4 that disclosed an alcohol concentration of 0.08 or more, the
department was required under RSA 265-A:30 to suspend the petitioner’s
license. Then, pursuant to RSA 265-A:31, which establishes the ALS review
process, the scope of the administrative review or hearing is limited to the
issues of:

(a) Whether the officer had reasonable grounds to believe the arrested
person had been driving, attempting to drive, or was in actual physical

9
 control of a vehicle upon the ways of this state . . . while under the
influence of intoxicating liquor, narcotics, or drugs;

(b) The facts upon which the reasonable grounds to believe such are
based;

(c) Whether the person had been arrested;

(d) Whether the person has refused to submit to the test upon the
request of the law enforcement officer or whether a properly administered
test or tests disclosed an alcohol concentration of 0.08 or more . . . ;

(e) Whether the officer informed the arrested person of his or her right to
have a similar test or tests conducted by a person of his or her own
choosing; and

(f) Whether the officer informed the arrested person of the fact that
refusal to permit the test would result in suspension of his or her license
or driving privilege and that testing above the alcohol concentration level
specified in RSA 265-A:2 or RSA 265-A:3 would also result in
suspension.

RSA 265-A:31, II (emphasis added).

I conclude that the term “ways” in this statute must also be construed as
referring to the expanded definition of “way” in RSA 259:125, II, because the
term “ways” is here being used “for the purposes of” RSA 265-A:2 or :3. The
Implied Consent Law and the testing procedure thereunder are intended to
determine whether RSA 265-A:2 or :3 has been violated, to deter operating
under the influence, to promptly remove irresponsible drivers from the State’s
highways, and to aid in prosecuting the guilty while protecting the innocent.
See Mfataneza, 172 N.H. at 169; Cassady, 140 N.H. at 49. Since the term
“ways” in the Implied Consent Law includes the church parking lot at issue in
this case, the same term in the statute providing for administrative review of
the license suspension must have the same meaning. It would be anomalous if
a test properly requested pursuant to RSA 265-A:4, resulting in a license
suspension pursuant to RSA 265-A:30, were to result in the license being
reinstated on appeal because the definition of “ways” in the appeal statute is
narrower than the definition of “ways” in RSA 265-A:4.

Although I conclude that the majority misconstrues RSA 259:125, II,
itself, I believe it errs more fundamentally by failing to focus upon the primary
issue before us — what is the meaning of “ways” as used in RSA 265-A:31. The
majority construes RSA 259:125, II. But that does not end the analysis. The
legislature has mandated that when the term “way” is used anywhere in Title
XXI, including in RSA 265-A:31, it shall have the meaning ascribed to it by

10
RSA 259:125 “except where the context otherwise requires.” RSA 259:1
(emphasis added). Yet, the majority fails to consider whether the context of the
Implied Consent Law and the ALS statutes requires that the term “ways” in
those statutes include every way upon which a driver is prohibited by RSA 265-
A:2, I, from driving while intoxicated.

I believe that the context does require that construction. For example,
the majority’s construction of RSA 259:125, II creates an internal inconsistency
in the Implied Consent Law. The relevant language of RSA 265-A:4 is:

Any person who . . . drives . . . upon the ways of this state . . . shall be
deemed to have given consent to physical tests and examinations for the
purpose of determining whether such person is under the influence of
intoxicating liquor . . . if arrested for any offense arising out of acts alleged
to have been committed while the person was . . . driving, attempting to
drive, or in actual physical control of a vehicle . . . while under the
influence of intoxicating liquor . . . which impair a person’s ability to drive
or while having an alcohol concentration in excess of the statutory limits
contained in RSA 265-A:2 or RSA 265-A:3.

(Emphases added.) This statute provides that any person who drives on a way is
deemed to have given consent to tests to determine whether that person is under
the influence if arrested for any offense arising out of acts committed while
driving under the influence. This implied consent is not limited to arrests for just
those offenses that occur on “ways” as defined in RSA 259:125, I. Nor does the
statute deem consent to have been given only after a person is arrested on the
appropriate “way” — it provides that consent is deemed to have been given by
any person who drives on the state’s ways if arrested for any offense, which
includes arrests on ways as defined in RSA 259:125, II.

Thus, if “ways of the state” in RSA 265-A:4 refers only to ways as defined in
RSA 259:125, I, then implied consent is a fleeting construct depending on where
the driver is arrested. As long as a driver is driving on a “paragraph I” way, the
driver has consented to tests should the driver be arrested for any offense, which
includes offenses arising out of driving on a “paragraph II” way. But as soon as
the driver actually drives on a “paragraph II” way, the driver’s implied consent
vanishes — should he be arrested for driving there, he no longer has given
implied consent to testing. It is absurd to construe the statute as providing that
a driver consents to testing generally by exercising his privilege to drive on the
ways of the state except when arrested for DUI on certain of those ways. Rather,
the context of RSA 265-A:4 requires that the “ways of the state” upon which a
driver has given implied consent be coextensive with “the ways of the state” upon
which the driver can be arrested for DUI. It follows, therefore, that pursuant to
RSA 259:1, the term “ways” in RSA 265-A:4 means “way” as defined in RSA
259:125, II.

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 Similarly, as discussed above, since the term “ways” in the Implied
Consent Law includes any “way” upon which a driver can be arrested for DUI, it
follows that the same term in RSA 265-A:31, which is the statute providing for
administrative review of any license suspension resulting from the Implied
Consent Law test, must have the same meaning.

Finally, I believe the majority’s construction leads to absurd results. The
majority agrees that a literal reading of a statute leads to absurd results when
it makes untenable distinctions between persons who are identically situated.
My colleagues acknowledge that there are two types of “ways” that fall under
RSA 259:125, II, but not under RSA 259:125, I — (1) ways that are privately
owned and maintained, while open for public use; and (2) public and private
parking lots not maintained for commercial use. They maintain, however, that
“in light of their physical location, intoxicated individuals controlling vehicles
on these two types of ways are not engaged in the same conduct as those
controlling vehicles on other types of ways.” I disagree. Driving while
intoxicated in a parking lot, for example, constitutes the same conduct and
creates the same danger to both the driver and the public, regardless of
whether the parking lot is maintained for commercial use. Significantly, such
noncommercial lots and private ways are physically connected to RSA 259:125,
I, ways.

Next, the majority contends that the “legislature may have decided that it
was undesirable or unnecessary to apply the expedited ALS process to
individuals controlling vehicles in a few locations where, arguably, there is less
danger to the public.” Again, I disagree.

That the legislature decreed that driving under the influence on
“paragraph II” ways is a crime — the same crime as driving under the influence
on “paragraph I” ways — demonstrates that the legislature was equally
concerned with protecting the safety of the public (as well as that of the
intoxicated driver) whether the driving took place on paragraph I or paragraph
II ways. “Public safety requires that [DUI] statutes apply to any property to
which the public has access.” State v. Lathrop, 164 N.H. 468, 470 (2012)
(emphasis added). The Implied Consent Law and the ALS process are tools for
promptly removing irresponsible drivers from the ways of this State, aiding in
prosecuting the guilty, and protecting the innocent. They come into play after
the driver has been arrested. The ALS process is “designed to afford due
process, to be informal, and to provide a prompt determination of whether
there are grounds to suspend a driver’s license.” Cassady, 140 N.H. at 49.

Thus, the question is what plausible reason the legislature could have for
deciding that the tools for promptly removing irresponsible drivers from the
ways of this State, affording arrested persons due process, and more accurately
distinguishing the guilty from the innocent, should be available after a driver is
arrested for DUI on a “paragraph I” way, but not after a driver is arrested for

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the same crime on a “paragraph II” way. To ask the question is to answer it.
Having determined that driving under the influence on a paragraph II way is
the same crime as doing so on a paragraph I way, the legislature would have no
plausible reason for excluding drivers arrested on “paragraph II” ways from
application of the Implied Consent Law and the ALS process. See Mfataneza,
172 N.H. at 169; Cassady, 140 N.H. at 49 (primary goal of ALS process is to
remove irresponsible drivers from highways “as quickly as possible to protect
the public”).

The legislature has, in the past, sought to close various “loopholes” and
“get tough on [DUI]” by making changes to the DUI law. See Lathrop, 164 N.H.
at 470. 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. Because I would affirm the
superior court order upholding the suspension of the petitioner’s license, I
respectfully dissent.

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