October 5th, 2013

In accordance with New Hampshire DWI Laws, the classification for how a DWI is charged—as either a class B misdemeanor (1st offense, non-Aggravated) or a more serious offense, called an Aggravated DWI—depends on the following factors:

  • Was the reported breath or blood Alcohol concentration (BAC) .16 or greater?
    • If so, this offense can be charged as a class A misdemeanor Aggravated DWI. This is the most common Aggravated DWI offense in NH
  • Was the driver going more than 30 mph over the speed limit?
    • This can be charged as a class A misdemeanor Aggravated DWI
  • Do the police claim that the driver attempted to “elude pursuit” (get away) when the blue lights went on?
    • If so, that can be charged as a class A misdemeanor Aggravated DWI. These are uncommon.
  • Did the driver cause an accidentin which someone (it could be only the driver) sustained serious bodily injury?
    • This will be charged as a class B FelonyAggravated DWI.

There are other factors that will substantially enhance the mandatory minimum license loss – driver under 21, or driver has passengers in car under age 16. These factors do not, however, support a charge of Aggravated DWI.

An aggravated DWI carries much harsher mandatory penalties upon conviction:

  • mandatory jail time
  • mandatory ignition interlockfor at least one year
  • mandatory minimum one year license revocation

Here are some more distinctions between an Aggravated DWI and a 1st offense non-aggravated DWI:

  • after one year, a class B misdemeanor conviction for 1st offense DWI can be reduced by motion to a non-criminal violation offense. Lothstein Guerriero, PLLC does not charge additional fees for preparing these motions. A felony or class A misdemeanor conviction for Aggravated DWI cannot be reduced to a lesser offense at any time.
  • A person convicted in the district court of Aggravated DWI has the right to appeal for a full jury trial in Superior Court. There is no right to a jury trial for a 1st offense non-aggravated DWI.

How will I know whether I will be charged with Aggravated DWI or regular 1st offense DWI? Unfortunately, you will not necessarily have the answer to this question at the time of arrest, and in some cases, you will not have the answer to this question until weeks after the arrest. For example, in blood test cases, it takes several weeks for the forensic laboratory analysis to come back, meaning that the prosecution does not know if the BAC exceeds the aggravated limit (.16) for weeks. As another example, felony DWI cases where the driver allegedly suffered serious bodily injury present significant challenges for the prosecution because case decisions can make it burdensome for the prosecution to get the defendant’s medical records.

Many of our clients are initially charged with both Aggravated DWI and 1st offense non-aggravated DWI. The prosecutor’s strategy here is to file charges “in the alternative,” so that the 1st offense DWI is available in case the prosecution fails to prove – or decides to plea bargain away – an Aggravated DWI charge.