2005-921, STATE OF NH v. JONATHAN M. POLK

cutting off another vehicle. Davies, who was in an unmarked cruiser, then in behind the pickup and followed it as it quickly accelerated and turned right,

leaned out to close the door and then stopped at a traffic light. Davies pulled and its driver’s side door fly open. The driver of the pickup, the defendant, Police Department was on duty when he noticed a pickup truck veer suddenly dispute. On November 21, 2004, Sergeant William Davies of the Manchester The defendant’s brief alleges the following facts, which the State does not

DWI), RSA 265:82-a (2004) (amended 2004; repealed 2006). We affirm. Superior Court (Barry, J.) for aggravated driving while intoxicated (aggravated HICKS, J. The defendant, Jonathan M. Polk, appeals his conviction in

and orally), for the defendant. Law Offices of Robert J. Moses, of Amherst (Robert J. Moses on the brief

on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general,

editorial errors in order that corrections may be made before the opinion goes No. 2005-921 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

light of the policy sought to be advanced by the entire statutory scheme.”

The jury found the defendant guilty. This appeal followed. instruction which contained no scienter element on the aggravated DWI charge. a law enforcement officer. The court denied this request and gave a jury

(quotation omitted).

to apply statutes in light of the legislature’s intent in enacting them, and in language is clear and unambiguous, we do not look beyond it. Id. “Our goal is words used.” Id. We construe each statute as a whole, and if the statute’s language of the statute and ascribe the plain and ordinary meanings to the whole. State v. MacMillan, 15 p. 2 2 N.H. 67, 70 (2005). “We first examine the legislative intent as expressed in the words of the statute considered as a by the Manchester District Court. In matters of statutory interpretation, we are the final arbiter of the

intoxicated when one of the delineated aggravating factors was present.” was required to prove that he acted purposely in attempting to elude pursuit by an enhanced penalty provision for the strict liability offense of driving while culpable mental state is not required because RSA p. 2 265:82-a merely “create[s] by a law enforcement officer by increasing speed.” The State counters that a aggravated DWI. Following the denial of his motion, the defendant rested. requirement with respect to the material element of attempting to elude pursuit complaint on the basis that it “contains no 265:82-a (I) (c) must, as a matter of law, contain an appropriate scienter not aware that Davies was trying to stop him. The defendant argues that “any complaint alleging a violation of RSA

officer by increasing speed.” The defendant was found guilty of aggravated DWI an intoxicating liquor and did attempt to elude pursuit by a law enforcement did drive a motor vehicle on Elm St. a public way, while under the influence of The defendant then requested that the jury be instructed that the State p. 2 2006); RSA 625:9, IV(a)(2) (1996). The complaint alleged that “the defendant

drafted.” The court denied the motion, ruling that scienter is not required for

by jury. After the close of the State’s case, the defendant moved to dismiss the ordered the defendant to exit the vehicle. The defendant told the officer he was The defendant appealed to the superior court, where he was given a trial red light. Davies then pulled in front of the pickup, exited his cruiser and the light turned green, the pickup accelerated again before stopping at another

A misdemeanor. RSA p. 2 265:82-b, I(b)(1) (2004) (amended 2004, 2005; repealed The defendant was charged with aggravated DWI, RSA 265:82-a, a class

pickup accelerated for a brief distance and then stopped at a red light. When activated his blue lights and siren to signal the defendant to pull over. The p. 3 3

attempting to elude pursuit by a law enforcement officer to be found guilty. (1996) requires that the defendant act with a culpable mental state in argues that since aggravated DWI is a misdemeanor offense, RSA 626:2, I alleged: intoxicating liquor and controlled drug and, at the time which is appropriate in light of the nature of the offense and the policy omitted from a statute, the State must prove the existence of the mental state N.H. 528, 529 (19 p. 3 38). Generally, “[w]hen the culpable state of mind has been vehicle while being pursued . . . . material element of the offense.” RSA 626:2, I; any way: headlamps while still in motion, or abandoning a see also State v. Goonan, 89 with the requisite mental state that “the law may require, with respect to each conduct alone . . . constitutes the offense.” As a general rule, a person can be guilty of a misdemeanor only by acting

265:82-a does not require a culpable mental state. The defendant, however, Like its DWI counterpart (RSA 265:82), the plain language of RSA or any controlled drug or any combination of

if the person drives or attempts to drive a vehicle upon enforcement officer by increasing speed, extinguishing (c) Attempts to elude pursuit by a law . . . .” DWI is a strict liability offense, where “the commission of the prohibited . . .

I. While under the influence of intoxicating liquor

A person shall be guilty of a violation of this section

controlled drug or any combination of intoxicating liquor and controlled drugs; RSA 265:82-a provides, in pertinent part: way: (a) While such person is under the influence of intoxicating liquor or any pertinent part: “No person shall drive or attempt to drive a vehicle upon any misdemeanor offense. RSA 265:82-a; RSA 265:82-b, I(b)(1). 198 p. 3 3, 373:10. Read together, these statutes make aggravated DWI a “Penalties for Intoxication or Under Influence of Drugs Offenses.” See Laws While Intoxicated,” and RSA 265:82-b (2004 & Supp. 2006) (repealed 2006), In 1983, the legislature adopted RSA 265:82-a, “Aggravated Driving

(1985); see also State v. Cardin, 129 N.H. 1 p. 3 37, 138 (1987).

(repealed 2006), as the starting point in our analysis. RSA 265:82 provides, in We look at the violation-level DWI offense (DWI), RSA 265:82 (200 p. 4 4) 4

penalty. Proof of the prohibited act,

requirement may, in many cases, defeat the purpose of the statute entirely:

equipment of the police vehicle.”)

prevented him from acting purposely with respect to defendant a basis to claim that his level of intoxication That proof would simultaneously provide the to prove that the defendant was impaired by alcohol. strict liability crime of DWI to a misdemeanor for purposes of enhancing the To prove the core offense of DWI, the State would have

265:82-a. Aggravated DWI merely adds aggravating factors which elevate the liquor, a controlled drug, or any combination of these. RSA 265:82, RSA Further, as the State points out, imposing a culpable mental state

present offense.” to elude a police officer,] one needs only to ignore the activated emergency a predicate condition for enhancement of the sentence upon conviction for the Russell, 622 P.2d 658, 662 (Kan. 1981) (“To violate K.S.A. 8-1568 [attempting material element that requires proof of a culpable mental state. Cf. State v. enforcement officer, is necessary only for that purpose; it is not an additional element to the offense but to enhance the penalties for repeated offenders.” i.e., attempting to elude pursuit by a law

aggravated DWI is the same: driving while under the influence of intoxicating We apply the same reasoning here. The underlying offense for DWI and

Cardin, 129 N.H. at 138.

threatening to a felony). proof of prior conviction not as an element of the present charge, but rather as at 52. We then upheld this principle in Cardin: “[Second offense DWI] requires

elevating DWI, subsequent offense, to a misdemeanor . . . was not to add an DWI offenses.” Goding, 126 N.H. at 51. We found that “[t]he purpose of the mens rea requirement of RSA 626:2, I[,] not be applied to misdemeanor DWI statutes, their plain meaning and the case law thereunder necessitate that does not contain a mens rea requirement because “the legislative history of the Moreover, we held in Goding that a DWI second offense, a misdemeanor,

require a culpable mental state although it enhances misdemeanor criminal McCabe, 1 p. 4 45 N.H. at 691-92 (holding that use of deadly weapon does not element of the crime of aggravated DWI requiring a culpable mental state. See by a law enforcement officer” under RSA 265:82-a, I(c), this is not a material beyond a reasonable doubt, that the defendant “[a]ttempt[ed] to elude pursuit State v. Demmons, 137 N.H. 716, 719 (1993). Although the State must prove, to material elements of a crime. State v. McCabe, 145 N.H. 686, 692 (2001); RSA 626:2, I, however, requires a culpable mental state only with respect

N.H. p. 4 4 p. 5 51, 457 (1989). considerations for punishing the conduct in question.” State v. Stratton, 132 5

indictment, submitted to a jury, and proven beyond a reasonable doubt.”

defendant stated the aggravating factor: that the defendant “did attempt to decisions support the defendant’s argument. The complaint against the chose not to include. Ouellette, 14 p. 5 5 N.H. at 491 (quotation omitted). We fail to see how these

that increases the maximum penalty for a crime must be charged in an Supreme Court’s holding in Apprendi: “[A]ny fact (other than prior conviction) Apprendi v. New Jersey, p. 5 530 U.S. 466 (2000).” In Ouellette, we adopted the conduct . . . violates the holding in State v. Ouellette, 145 N.H. 489 (2000) and The defendant argues that imposing “strict liability . . . for this type of

upon the absence of the word “willfully” in the statute). that “attempting to elude a police officer” is a strict liability crime based in part (2001); see also State v. Roy, p. 5 557 A.2d 884, 886, 890-91 (Vt. 1989) (finding

will not add words to the plain language of a statute which the legislature However, “willfully” is conspicuously absent from RSA 26 p. 5 5:82-a, I(c), and we “willfully” in “attempt[ing] to elude pursuit by a law enforcement officer.” Officer”) as a similar offense, which specifically requires that a person act The defendant also points to RSA 265:4, I(c) (2004) (“Disobeying an

culpable mental state is not required. 26 p. 5 5:82-a are not material elements of the crime of aggravated DWI; therefore, a liability crimes. Moreover, as we stated above, the aggravating factors in RSA unlike DWI, vehicular assault and driving after suspension are not strict suspension is charged as a misdemeanor. Curran, 140 N.H. at 532. However, (Supp. 2006) to require a culpable mental state when the crime of driving after negligence, Rollins-Ercolino, 149 N.H. at 341. In Curran, we read RSA 263:64 statute, RSA 265:79-a (2004), to include the culpable mental state of criminal state,” Rollins-Ercolino, 149 N.H. at 338, and read the vehicular assault proof that his or her unlawful act was accompanied by a culpable mental applied the principle that “a person cannot be convicted of a crime without culpable mental state in this case. We disagree. In Rollins-Ercolino, we N.H. 336 (2003), and State v. Curran, 140 N.H. 530 (1995), require proof of a The defendant argues that our decisions in State v. Rollins-Ercolino, 149

to an appreciable extent, the purpose of the statute”). p. 5 511-12 (2006) (legislature will not be presumed to enact legislation “nullifying, RSA 265:82-a. See Weare Land Use Assoc. v. Town of Weare, 153 N.H. 510, We believe that the legislature did not intend such a result when it enacted

doubt). of the crime has been proven beyond a reasonable into consideration in determining whether an element p. 6 626:4 (1996) (evidence of intoxication may be taken the aggravating factor of eluding the police. See RSA 6

defendant’s other issues on appeal.

does not require proof of a culpable mental state, we need not reach the

jury that the State must prove this fact “beyond a reasonable doubt.”

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

Given that we hold that aggravated DWI is a strict liability crime that

information was submitted to the jury and that the trial court instructed the elude pursuit by a law enforcement officer.” The record reveals that this