There are two types of Aggravated DWI in NH:
If the aggravating factor is a vehicle collision that results in serious bodily injury to any person, including the accused driver, the State may charge the driver with Aggravated DWI, class B Felony. Thus, the "elements" of the offense, meaning the building blocks of the prosecution case, are:
Often, the person who was allegedly seriously injured was the defendant himself. In those cases, it can be challenging for the police to investigate and the prosecution to prove that the defendant was seriously injured. The privacy of medical records is protected by both State and Federal law. The New Hampshire Supreme Court has pointed out that "confidential communications and relations" between doctor and patient "are placed on the same basis" as the attorney-client privilege and relationship.
Accordingly, case decisions of the New Hampshire Supreme Court hold that the police / prosecution cannot simply use a grand jury subpoena or search warrant to get those medical records. Instead, they must apply for a special warrant where the superior court provides notice to the defendant that the defendant has 10 days to object to the prosecution's attempt to get a court order producing the medical records. Often, all of this happens before any formal charge is brought in court against the defendant.
If the defendant objects and requests a hearing, the prosecution must meet exacting legal standards: 1) that the evidence that may be in the medical record is "essential" to the prosecution, 2) that it has no reasonably alternative sources to obtain the evidence, 3) the State has made a reasonable investigative effort to obtain the evidence by alternative means. The court will consider whether the alternative evidence is admissible at trial and sufficient to prove the element of serious bodily injury.
An example of alternative evidence? If the defendant is depicted hiking a trial on social media shortly before the accident, but is confined to a wheelchair when out in public a month after the accident, the State would have pretty good circumstantial evidence that the defendant was seriously injured in the accident.
After the police investigate the accident itself, the police will continue to investigate the case and look for the "alternative evidence" described above. The special court procedures may unfold with just 10 days notice to the defendant. There are likely to be other procedures underway to obtain hospital blood alcohol results and conduct further forensic testing of blood samples taken by hospital staff for medical purposes or by law enforcement for investigative purposes. All of this may be occurring before any charge is filed in court, or when the charge filed in court is a much less serious offense such as class B misdemeanor first offense DWI.
Hiring a lawyer early on can make the difference between successfully objecting to the prosecution discovery of incriminating evidence, and losing the right to object, possibly forever. It can make the difference between having an early opportunity for favorable settlement, and losing that opportunity. In cases handled by our office, including as recently as July, 2020, it has made the difference between facing mandatory jail time, and receiving no jail time.
For all of these reasons, it is imperative to hire a skilled and highly-experienced DWI/criminal defense lawyer for your loved one who has been in an accident and may be facing a DUI investigation, as soon as possible and before charges have been filed or upgraded to more serious charges.
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