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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2015

- 0256

JONATHAN WOLFGRAM

v.

NEW HAMPSHIRE DEPART MENT OF SAFETY

Argued: November 10, 2015 Opinion Issued: April 29, 2016

Patrick M. Carron , of Concord, by brief and orally, for the petitioner.

Joseph A. Foster , attorney general ( Matthew T. Broadhead

, attorney

, by

memorandum o f law and orally), for the respondent

.

BASSETT , J. The petitioner, Jonathan Wolfgram, appeals an order of the Superior Court ( McNamara , J.) affirming a decision by the respondent, the New Hampshire Department of Safety (DOS)

, to retain notations on the petitioner’s

motor vehicle record referring to his certification and decertification as a habitual offender

, despite the fact that the convictions that led to his hab itual

offender certification had been annulled. The petitioner argues that, because

the habitual offender notations reveal the fact of his annulled criminal convictions, allowing DOS to retain the notations on his motor vehicle record defeats the purpose of the annulment statute

, RSA 651: 5 ( Supp. 2015 )

. We

reverse and remand

.2

The parties stipulated to the following facts in the trial court

. Between 2002 and 2007, the petitioner was convicted of multiple motor vehicle offenses

. B ased upon these convictions, DOS certified the petitioner as a habitual

offender and revoked his license and operating privileges for four years

. See

RSA 259:39 ( 2014 ) (defining habitual offender as any person “whose record, as

maintained in the office of the division, shows that such person has
accumulated convictions” specified by the statute “within a 5

- year period ”). In

201 1 , the petitioner request ed to be decertified as a habitual offender. DOS granted his request

, reissued the petitioner’s driver’s license

, and placed him

on “probationary status” until November 2016.

Between 2012 and 2013, t he petitioner obtained “approximately
seventeen” annulments o f various motor vehicle convictions, including those

that had resulted in his habitual offender ce rtification. DOS removed these annulled convictions from the petitioner’s motor vehicle record. In 2014, t he petitioner requested a hearing at DOS, seeking to have “all notations regarding [his] past Habitual Offender Certification and Decertification” r emoved from his

motor vehicle record. He argued that , given that the convictions underlying his habitual offender status had been annulled, “[l]eaving the notations regarding [his] habitual offender status [on his record] defeat[ed] [ the ] p urpose of the

a nnulment statute. ” Following a hearing

, DOS denied the petitioner’s request

, explaining:

W hile each court has acted formally to invalidate each of its subject convictions, the State Department of Safety has never formally acted to invalidate its [habitual offender] certification

action

. As a result, as that action and its related actions were valid at the time and have not been annulled, notations of those

actions are not in error

, and they must remain on the [petitioner’s]

record.

The petitione r’s request for reconsideration was denied, and he appealed to the superior court.

The trial court affirmed the decision by DOS to retain the habitual

offender notations on the petitioner’s motor vehicle record , concluding that it was “consistent with the plain language” of RSA 651:5, which provides , in part,
that annulled convictions “may be counted toward habitual offender status

, ” RSA 651:5, X (a)

. The trial court also observed that keeping the notations on the petitioner’s motor vehicle record was “consistent with the entire statutory scheme relating to Habitual Offenders,” which empowers DOS to protect the public from dangerous drivers by denying habitual offenders the privilege of driving on public roads. See RSA 262:1 8

- :26 (2014) (habitual offender policy and procedure). Finally, the trial court noted

, because the habitual offender

law provides that the order finding that a person is a habitual offender “ shall become part of the record of the division of motor vehicles

, ” R SA 262:19, III, the3

habitual offender notations properly continued to be part of the petitioner’s

motor vehicle record. The petitioner’s motion for reconsideration was denied,

and t his appeal followed.

On appeal, the petitioner argues that , because the habitual offender

notations reveal the fact of criminal convictions that have been annulled

, the trial court erred by allowing DOS to retain the notations on his motor vehicle

record. He asserts that the habitual offender notation s must be r emoved in
order to be consistent with the plain language and the purpose of the

annulment statute

. Although t he petitioner acknowledges that DOS “has legitimate business and record keeping purposes ” for maintaining a record of

his annulled convictio ns and his prior certification as a habitual offender

, he

argues that this should not be done on his “ official ” motor vehicle record , which

is “ used by many landlords [and] employers” and “ may be used in court proceedings and introduced as evidence in cour t matters

. ” The petitioner also raises a constitutional challenge to the trial court’s order

. DOS counters that

, because “the habitual offender designation is not a record of a criminal proceedi ng that is subject to annulment, ” DOS is not required to remove the

notations from the petitioner’s record. DOS further asserts that the plain language of the annulment statute “ expressly exempt [ s ] habitual offenders of

the motor vehicle laws from receiving [the] privilege [s] ” provided to persons with

annulled convictions

. Finally, DOS argues that removing the notations from the petitioner’s official motor vehicle record would prevent DOS from upholding its statutory obligation to keep a record of habitual offender certifications

. See

RSA 262:19.

T he issue on appeal presents a question of statutory interpretation. We review matters of statutory interpretation de novo

. JMJ Properties, LLC v.

Town of Auburn , 168 N.H. 127, 130 (2015)

. “We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as
a whole.” Choquette v. Roy , 167 N.H. 507, 517 (2015) (quotation omitted).

“ Our goal is to apply statutes in light of the legislature’ s inten t in enacting them, and in light of the policy sought to be advanced by the entire statutory
scheme.” Id . (quotation omitted). “When construing the meaning of a statute, we first examine the language found in the statute, and where possible, we

ascribe t he plain and ordinary meanings to words used.” Id

. (quotation omitted). We will not construe a statute in a way that would render it “a virtual nullity.” Appeal of Wilson , 161 N.H. 659, 664 (2011)

. “ We construe statutes so
as to effectuate their eviden t purpose and to avoid an interpretation that would lead to an absurd or unjust result. ” State v. Bulcroft , 166 N.H. 612, 614 (2014) . “ We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. ” Id

.

The purpose of the annulment statute is to reduce the collateral consequences of a criminal conviction and “to afford an offender . . . a chance to start anew without this stigma in his records.” State v. Roe , 118 N.H. 690,4

692

- 93 (1978) (quotation omitt ed). The “ record of arrest, conviction and

sentence of any person” that fits within the specific categories set forth in the statute “may be annulled by the sentencing court at any time in respo nse to a petition for annulment . . . if in the opinion of th e court, the annulment will

assist in t he petitioner’ s rehabilitation and will be consistent with the public welfare.” RSA 651:5, I

. P ursuant to RSA 651:5, X (a)

, “ [t]he person whose

record is annulled shall be treated in all respects as if he or she had never been arrested, convicted or sentenced .” We have previously recognized that “[t]he language ‘ in all respects ’ cannot be read out of the statute or interpreted to

en compass any less than the word ‘ all ’ requires. ” Brown v. Brown

, 133 N.H. 442, 445 (1990)

. H owever, RSA 651:5, X (a) provide s two narrow exceptions to
this “ otherwise unequivocal language ,” id

. — “upon conviction of any crime committed after the order of annulment has been entered, the prior conviction may be considered by the court in determining the sentence to be imposed, and may be counted toward habitual offender status under RSA 259:39

. ” RSA 651:5, X (a)

.

The habitual offender law seeks to “provide maximum safety for all persons who travel or otherwise use the ways of the state” and to “discourage repetition of criminal acts.” RSA 262:18 , I, III

. The habitual offender law
grants DOS broad authority to impose restrictions on habitual of fenders. See

RSA 262:18

- :26. DOS may “impose increased and added deprivation of the privilege to drive motor vehicles upon habitual offenders who have been convicted repeatedl y of violations of traffic laws

. ” RSA 262:18 , III

. DOS also

has discretion to determine whether to restore a habitual offender’s driving license and operating privileges, and it prescribes the terms and conditions by

which a habitual offender may regain his driving privileges

. See RSA 262:24 ( DOS “ may restore” habitual offender’s driving privileges “upon such terms and conditions as the director may prescribe” (emphasis added)) ; N.H. Admin.

Rules , Saf

- C 206 .01

- 207.07 (DOS rules governing habitual offenders)

. DOS is specifically required by statute to keep a copy of the order certifying a person

as a habitual offender as “part of the record of the division of motor vehicles.” RSA 262:19, III.

B ecause the two statutes at issue in this case impact the treatment of persons designated as habitual offend ers, we construe them “ so that they will lead to reasonable results and effectuate the legislative purpose of the

statutes

. ” Holt v. Keer , 167 N.H. 232, 241 (2015) (quotation omitted) ; see State

v. Patterson , 145 N.H. 462, 465 (2000) ( construing statutes dealing with similar subjects “so that they lead to reasonable results and do not contradict each other” (quotation omitted) )

. As a preliminary matter, we address DOS ’s
argument that, because the habitual offender certification is a civil designation,

see State v. Fitzgerald , 137 N.H. 23, 28 (1993), it is not subject to annulment pursuant to RSA 651:5

. We agree with DOS that, in and of itself, the habitual offender certification is not subject to annulment. Nonetheless, because the

habitual offender nota tions on the petitioner’s motor vehicle record reveal the5

fact of his prior convictions, they are inextricably linked with the petitioner’s criminal history.

By definition, a “ [ h ] abitual offender” has “accumu lated convictions.” RSA 259:39 (quotation omitted). Consequently, just as “the fact of an annulment also necessarily discloses the fact of a conviction,” Panas v. Harakis & K

- Mart Corp.

, 129 N.H. 591, 610 (1987), a habitual offender designation necessarily

discloses the fact of more than one prio r criminal conviction. In New Hampshire, a person’s motor vehicle record is available, upon request and with permission of the individual whose record is requested, to members of the public, including potential employers and insurance agencies. See RSA 2 60:14 (Supp. 2015) (describing how motor vehicle records may be requested and released). Accordingly, if the habitual offender notations remain on the petitioner’s motor vehicle record, any person who receives the record would be

able to ascertain that he had prior conviction s . We agree with the petitioner

that this would undermine the purpose of the annulment statute and lead to

an unjust result. See Bulcroft , 166 N.H. at 614 (“We construe statutes so as to . . . avoid an interpretation that would lead to an absurd or unjust result.”).

DOS next argues that , because RSA 651:5, X(a) provides that annulled convictions “may be counted toward habitual offender status,” habitual

offenders are “expressly exempted

. . . from receiving [the] privilege” of being “treated in all respects as if [they] had never been arrested, convicted or sentenced

. ” (Quotation omitted.) See RSA 651:5, X(a). We disagree. RSA 651:5, X(a) specifies that previously annulled convictions “may be counted

toward habitual offender stat us” only “ upon conviction of any crime committed

after the order of annulment has been entered .” We interpret this language to

mean that DOS may consider an annulled conviction when determining whether a person qualifies for certification as a habitual offender. To certify

someone as a h abitual offender, DOS must determine the number of qualifying

convictions that the person has accumulated in a five

- year period. See RSA
259: 39. Thus, the annulled convictions are relevant in this context

. T he exception in RSA 651:5, X(a) regarding habitual offender status allows for this

necessary and limited consideration of annulled convictions. It does not exempt habitual offenders from the protections provided by the annulment
statute, nor does it require a habitual offender’s annulled convictions or habitual offender status to remain on a publicly available motor vehicle record.

Our interpretation is consistent with the other exception in RSA 651:5, X(a), which provides that a court may not consi der an i ndividual’s annulled

conviction except that “upon conviction of any crime committed after the order of annulment has been entered,” it may be considered “ in determining the sentence to be imposed .” T his exception allows for the limited consideration of

annulled convictions in a context in which prior convictions may be relevant

— sentencing for a subsequently committed crime

. Thus, these exceptions reflect

the fact that

, although annulment creates a legal fiction that a person has6

never been arrested, convicted, or sentenced, prior convictions remain a historical reality and can be considered in limited circumstances. See Lovejoy

v. Linehan , 161 N.H. 483, 487 (2011) (observing that treating annulled
conviction “as if it had never occurr ed” is “conceptually impossible” and “contrary to the clear language of” RSA 651:5, which “describes various

circumstances in which the annulled record can be used” (quotation omitted) ).

Nonetheless, DOS argues that , because it has a statutory obligation to

maintain a record of the certification of habitual offenders as “ part of the record

of the division of motor vehicles

, ” RSA 262:19, III, the petitioner’s habitual

offender status must remain on his motor vehicle record. The petitioner

count ers that DOS may keep a record of his habitual offender ce rtification and decertification, “

just not on [his] official motor vehicle driving record.” He
likens DOS to other state prosecuting agencies that may not “ keep track of

annulled criminal convictio ns on a citizen’s official criminal record because such annulled convictions can only b e considered by C ourts for purposes of sentencing.” See RSA 651:5, X(a). We agree with the petitioner.

Although RSA 262:19, III provides that the order certifying a habitual offender “shall become part of the record of the division of motor vehicles ,” it does not require that , after the underlying convictions have been annulled, the notations referring to the habitual offender certification and decertification be

incl uded on the publicly accessible motor vehicle record. Because motor

vehicle record s can be accessed by members of the public, see RSA 260:14, interpreting RSA 651:5 to require the removal of annulled convictions from a

motor vehicle record but not the rem oval of habitual offender notations that

reveal the fact of those annulled convictions would run counter to the plain language of the annulment statute and undermine the purpose of the statutory

scheme. Thus, construing the annulment statute together with the habitual offender law, we conclude that, because the petitioner is a decertified habitual

offender and the convictions underlying his habitual offender certification have been annulled, DOS must maintain its record of his habitual offender

certificati on status in such a way that the information is not accessible by members of the public. This places no more a burden on DOS than the burden imposed on other agencies that are required to keep confidential information separate from publicly available information. See

, e.g. , Duchesne v. Hillsborough County Attorney , 167 N.H. 774, 781 (2015) (describing procedure, as set forth by statute, for distinguishing between material in police personnel file that may be disclosed and material that must remain confidential).

Accordingly, we conclude that the trial court erred when it upheld the decision by DOS to maintain notations referring to the petitioner’s habitual

offender certification and decertification on hi s publicly accessible motor
vehicle record. To the extent that the petitioner argues that the trial court

erred by not ordering DOS to remove from his motor vehicle record what he

characterizes as references to annulled criminal convictions

— but as to which7

there is no evidence that the references are, in fact, to annulled conv ictions

— we decline to address this argument because t he petitioner did not raise it before DOS, either in his initial request or in his motion for reconsideration

. Se e Appeal of Morrissey , 165 N.H. 87, 98 (2013) (concluding that issue not

raised in initial appeal to Department of Environmental Services Wetlands

Council or in motion for reconsideration not preserved for appellate review). Because the petitioner prevails on his statutory claim, we need not address his constitutional argument

.

Reversed and remanded

.

DAL I ANIS, C

. J

. , and HICKS, CONBO Y, and LYNN, JJ., concu r red.