Blizzard appeals boating suspension

Last modified: 12/22/2010 12:00:00 AM
Now serving her sentence for negligent homicide from home, Erica Blizzard appeared in court yesterday to appeal a three-year suspension of her boating privileges.

Blizzard, 37, was convicted in March of negligent homicide in a 2008 boat crash on Lake Winnipesaukee that killed her best friend.

Afterward, a hearing examiner with the state Department of Safety suspended her boating privileges for three years.

For the negligent homicide conviction, Blizzard was sentenced to a year in Belknap County jail but was eligible for work release after 30 days and for electronic monitoring after six months. At the beginning of this month, she was released from jail and is now monitored with an electronic bracelet, her attorney, Jim Moir, said yesterday. With good behavior, she could have the bracelet off by Feb. 1, he said.

Yesterday, Moir argued before Belknap County Superior Court Judge James O'Neill that the Department of Safety did not have the authority to suspend Blizzard's boating privileges.

He argued that the state law granting power to state agencies to revoke licenses does not apply to boating privileges, which he said are different than licenses.

"The operative word here is 'license,' " Moir said. "As there's no such thing as a boating license here, the director of the Department of Safety has no jurisdiction to act."

Moir compared the situation to the Department of Safety taking away a person's privileges to walk, swim or ride a bicycle.

Chris Casko, the attorney for the Department of Safety, argued a boater's operating privilege, which is dependent on obtaining a boater education certificate, is "essentially the same as a driver's license."

"It is a distinction without a difference," Casko said. "I don't think you need to issue a specific piece of paper or a piece of plastic to be able to regulate a particular area in the purview of administrative law."

Moir also argued that Blizzard was not properly noticed of the Department of Safety hearing that resulted in her suspension.

While the notice of hearing cited a state law granting authority to revoke a boater's registration, it did not specify which part of the law Blizzard violated.

"What this commissioner is saying is, 'All right, Mrs. Blizzard, here's your notice . . . but we're not going to tell you what you specifically did,' " Moir said.

Casko argued that the notice broadly but accurately cited the statute under which Blizzard would be disciplined, and coupled with a description of the crash also provided in the notice, it was clear why the hearing was taking place.

"You have to read the notice as a whole," he said. "And taking that notice as a whole, the petitioner was put on notice as to what this hearing was to deal with."

Moir also argued that the three-year suspension Blizzard received was not based on any statutory guidelines and leaves "unfettered discretion" allowing the Department of Safety to revoke a person's boating privileges for however long the agency sees fit.

"They could say . . . 'If you violate the decibel limits on the lake - life. Speeding on the lake? Life,' " Moir said, later adding, "The entire scheme is defective."

Casko argued the hearing examiner acted reasonably in setting Blizzard's suspension at three years.

He acknowledged that "we don't have a strict suspension length."

"I think to say the suspension was for life would be clearly unreasonable," he said. "But based on the incident that was alleged and the facts that were agreed on, a three-year timeframe would be reasonable."

O'Neill did not rule on Blizzard's appeal yesterday after listening to both sides' oral arguments. A timeframe for a decision has not been set, Moir said.

Blizzard is also scheduled for trial at 9 a.m. Jan. 24 in Laconia District Court on a citation for negligent driving she received on Interstate 93 the day after her negligent homicide conviction.




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