New Hampshire v. FoggAnnotate this Case
Defendant James Fogg appealed a superior court order denying his motion to dismiss one of the two counts of aggravated driving while intoxicated (DWI) of which he was convicted. The State charged defendant with two counts of aggravated DWI: one count for the injuries sustained by each occupant of the vehicle that the defendant hit. On appeal, defendant argued the trial court’s interpretation of RSA 265-A:3 was unfaithful to the text of the statute and its legislative history, and violated the double jeopardy protections provided by the State and Federal Constitutions. RSA 265-A:3 set forth three requirements for an aggravated DWI offense: (1) driving or attempting to drive a vehicle upon a way; (2) while intoxicated; and (3) fulfilling any one of the four alternative conditions listed in RSA 265-A:3, I(a)-(d). These four alternatives were: (a) driving more than 30 miles per hour in excess of the speed limit; (b) causing a motor vehicle collision that results in serious bodily injury to the driver or another; (c) attempting to elude a law enforcement officer by increasing speed, extinguishing headlamps, or abandoning the vehicle; and (d) carrying a passenger under the age of 16. The New Hampshire Supreme Court concluded the legislature intended the gravamen of the offense to be the operation of a vehicle while intoxicated, and accordingly concluded that only a single aggravated DWI charge arises from operating a vehicle on a particular occasion. The Court concluded the legislature did not intend the “unit of prosecution” under subsection I(b) of the statute to turn upon the number of persons suffering serious bodily injury in a single collision resulting from operation of a vehicle on a particular occasion. Because the Court conclude that the trial court erred in interpreting RSA 265-A:3, it did not reach the State’s or the defendant’s constitutional arguments. The Court reversed defendant’s conviction on one of the aggravated DWI indictments, and remanded to the trial court with instructions that it determine which conviction and sentence to vacate.