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October 4th, 2024
NH Tightens Up Legal Standards for Aggravated DWI
Definition of Aggravated DUI
Most people charged with a first offense DUI face a class B misdemeanor. "Aggravated DUI" means there is a factor that makes it a more serious DUI, a class A misdemeanor or even a felony. The most serious aggravating factor, the one that authorizes a felony prosecution, is causing a motor vehicle accident that results in serious bodily injury.
A NH statute defines “serious bodily injury” as “any harm to the body which causes severe, permanent or protracted loss of or impairment to the health or of the function of any part of the body.”
An Older Case Made it Easy to Prove Serious Bodily Injury
In 1980, the New Hampshire Supreme Court (NHSCt) set a very low bar for the concept of "serious bodily injury." In State v. Kiluk, 120 N.H. 1 (1980), an assault prosecution that relied on the same statute defining serious bodily injury, the Court held that cuts to the face requiring 7 stitches, injuries that "probably" caused blurred vision, were sufficient to prove serious bodily injury. We have warned many clients about the Kiluk case when consulting with them about DWI cases that involve traffic accidents and bodily injury.
The Court has Raised the Bar
On August 14, 2024, this Court held that the following did not constitute sufficient evidence of serious bodily injury in an Aggravated DUI prosecution:
- At the hospital, the defendant told the investigating officer “that he had been involved in a car crash and had some serious injuries regarding that.”
- When the investigating officer went to the defendant's house several days later, she saw that his arm was in a sling.
- At his house, he defendant told the officer that he sustained “a few small lacerations to the top of his head, but his only significant injury was the broken right humerus.”
In a significant case decision for DUI defense in this State, the Court held that evidence of a broken right humerus, the defendant's characterizations of the injury as "serious" and "significant", and the defendant's arm in a sling several days after the accident, did not prove serious bodily injury beyond a reasonable doubt. The Court reasoned:
The jury was not presented with any evidence as to what type of break the defendant suffered, the severity of the break, or how the broken arm would or did impact the defendant's health or ability to function. The fact that [the officer] noticed that the defendant's arm was in a sling established only that, at a single point in time several days after the accident, the defendant's arm was in a sling — not that the injury was “severe, permanent or protracted.”
What do we Learn from this Decision?
If you got in a car accident and were charged by the police or may be charged by the police, hire a lawyer quickly. Most of the evidence against the defendant in the Keller case consists of his own statements to the police about his injuries. If a family member had hired a lawyer for him immediately upon learning of a criminal charge, the lawyer would have directed the police not to question the client and would have advised the client to avoid supplying evidence to the government:
- Don't post to social media about your injury or photos of your injury
- Don't talk about it in any public forum including the internet
- Phone communications can be retrieved from the service provider or the cellphone itself upon a search warrant so private communications aren't safe either.
- To the extent possible, don't display your injury in public.
- If any law enforcement officer asks to talk to you after you have been charged, simply say that you can't do that unless your lawyer is present.
What can Lawyers Learn from the Keller Decision?
And finally, what do lawyers learn from a decision like this? It's a reminder that being a lawyer is not about making assumptions, or guessing, or applying "common sense" (common sense like "a broken humerus sure sounds like a serious bodily injury"). Being a lawyer is about carefully researching the exacting requirements of the law, because courts are supposed to interpret the law, not make law. And when we hold the courts to the exacting requirements of the law, we best defend our clients.
If you or a loved one has been charged with Aggravated DWI, call us for a free consultation.