NH Supreme Court Broadens Prosecutorial Discretion for Reckless Drivers

Today's decision by the NH Supreme Court underscores the awesome degree of power wielded by prosecutors, referred to as "prosecutorial discretion," and meaning the power to choose which offense, and how serious an offense, to charge based on a given set of facts.

"Reckless Driving" is a non-criminal motor vehicle violation offense under NH Revised Statutes Annotated (RSA) 265:79 . The mandatory penalty for this offense is a 60 day loss of license and at least a $500 fine. Further, the person would be reclassified as a "probationary driver" for 5 years. However, a person charged with Reckless Driving cannot be sent to jail because it is not a criminal offense. Many clients charged with DWI end up being given an opportunity to plead to reckless driving, a less serious offense, as a compromise that causes a license suspension and probationary driver status but does not carry the stigma and long-term adverse consequences of a DWI conviction.

"Reckless Conduct" is a class B Felony, carrying a maximum sentence of 3-1/2 to 7 years in prison, 5 years of probation, and a $4000.00 fine, yet it can be committed by the exact same conduct as can support a prosecution for the non-criminal offense of Reckless Driving. As a result, lawyers often ask on criminal law list-servs or other discussion forums, how could the legislature have intended to give prosecutors the authority to charge the Felony of "Reckless Conduct" based on the same (reckless) driving conduct that could support a far less serious prosecution for the non-criminal offense of "Reckless Driving" ?

Today, in State v. Cheney, No. 2011-465 (decided Nov. 7, 2013), the NH Supreme Court answered this question by holding that a prosecutor does have the power to bring either charge (the felony must be indicted by grand jury), based on the exact same conduct - recklessly driving a vehicle in a dangerous manner that could place another in danger of serious bodily injury. This decision is a reminder of the awesome power, and awesome responsibility, held by prosecutors. The fact that so many criminal and motor vehicle statutes overlap, is also a key for creative litigation strategies, and plea bargaining strategies, that help diligent and creative criminal defense lawyers obtain results for their clients far less serious than the "worst possible scenario."

Read State v. Cheney.