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DWI - Whats the Definition of the Crime?

In the criminal law, the "elements" of the offense are the legal propositions that the government has to prove beyond a reasonable doubt in order to get a conviction. Together, these legal propositions make up the definition of the crime.

In NH, for a first offense DWI charge against a driver who is 21 or over, the government has to prove the following elements beyond a reasonable doubt:

  • the accused operated or was in actual physical control of a vehicle
  • on a way (not necessarily a "public way")
  • while under the influence of any substance that impairs the ability to drive

So what are the most commonly-asked questions?

I was parked on the side of the road, resting or sleeping, not driving, because that was the right thing to do. Can I be guilty?

Unfortunately, the answer is maybe. The element "drive" is defined in RSA 259:24: "to operate or be in actual physical control of a motor vehicle." "Actual physical control" is "the capacity bodily to guide or exercise dominion over the vehicle at the present time." State v. Willard, 139 N.H. 568 (1995). The New Hampshire Supreme Court has interpreted "actual physical control" to include situations where the vehicle is not moving, or even situations where the engine is off, if the accused in a position of actual physical control - behind the wheel, in possession of the car keys, etc.

For example, in one reported case from the NH Supreme Court, the defendant was parked on the side of the road, but alas, he told the investigating officer that he was waiting for a cell phone call from his wife to pick her up. This statement helped the government prove that the defendant intended to drive in the near future. State v. Holloran, 140 N.H. 563 (1995). However, there is a defense available for a driver that is truly using the vehicle as a "stationary shelter" -- if the government cannot prove that the driver recently drove or is about to drive under the influence, the accused may prevail on that defense. If you think you have a potential "stationary shelter" defense, you should consult with an experienced DWI defense lawyer to assess the merits of your defense.

The police or other witness only saw me in a parking lot, not on the road. Can I be guilty?

Unfortunately, the answer here is also maybe. The legal definition is "way", not "public way", so it can include private parking lots or dirt roads or driveways in certain situations. In those cases, it is common for the accused to litigate whether the government can prove the "way" element beyond a reasonable doubt. Also note that it is illegal to drive an OHRV or snowmobile under the influence and in those cases, the government does not have to prove the "way" element at all.

I wasn't drinking or taking drugs. I had used a substance which is not illegal, and there is no requirement to get a prescription in order to obtain that substance. It's not a controlled drug at all. Can I be guilty?

Unfortunately, here the answer is yes, no matter what the substance happens to be, if it has impairing properties. The NH legal definition here is very broad: "under the influence of intoxicating liquor or any controlled drug, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a person's ability to drive or any combination of intoxicating liquor and controlled drugs, prescription drugs, over-the-counter drugs, or any other chemical substances, natural or synthetic, which impair a person's ability to drive."

I wasn't drunk at all. Can I be guilty?

Maybe. It is common to call the offense "drunk driving" but actually the government does not have to prove that the accused was drunk behind the wheel. Instead, under NH case law, the government has to prove that the accused was under the influence "to any degree" (and in jury trials, Judges like to tell the jury that "to any degree" means "to any degree, no matter how slight.")

This is how the NH Supreme Court explained it: "There are no degrees of influence provided for in ̳under the influence of intoxicating liquor.‘ It follows, therefore, that impairment to any degree is sufficient to constitute the offense." State v. Slater, 109 N.H. 279 (1969)

When the police found me, I might have been under the influence, but that's because I had a stiff drink after the car accident. I'm not guilty, right?

This is pretty common scenario. Of course, the government has to prove that the accused was under the influence at the time of vehicle operation, so evidence of drinking or using substances after the fact can provide a potential defense at trial.

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