2015-0383, The State of New Hampshire v. Arthur Kardonsky

a misdemeanor and a violation - level offense for driving his motor vehicle after The relevant facts follow. The defendant was originally charged with both

reverse. offense does not require the mens rea of “knowingly.” Because we agree, w e appeal, he argues that the trial court erred by ruling that this violation - level driving after suspension of his driver’s license. See RSA 263:64 (2014). On the Circuit Court (Boyle, J.) that he was guilty of the vio lation - level offense of BASSETT, J. The defendant, Arthur Kardonsky, appeals the finding of

orally), for the defendant. Nixon Peabody LLP, of Manchester (Anthony J. Galdieri on the brief and

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant

No. 2015 - 0383 6th Circuit C ourt – Concord District Division

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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

I’m going to ent er a finding of guilty to that one.

while your license was suspended. license was suspended and that you were operating a motor vehicle mens rea of knowingly. What the State must prove is that your suspension. That is a violation level offense[;] it does not require a You also have a violation level offense of operating af ter

going to enter a finding of not guilty. Since there’s a mens rea of knowingly on this offense, I'm

suspended for failure to comply w ith the insurance requirements. receiving a notice from DMV that you had, in fact, had your license where you were living at the time and you don’t recall ever You’ve testified that you’ve had problems getting the mail

you were at fault. that you would make good on any damages from the a ccident that comply with the insurance provisions and in essence guarantee suspended and your license would be suspended if you failed to officer at the time of your accident that your registration would be don’t recall whether or not you received a notice from the police mens rea of knowingly. I’ve heard testimony here today that you This is a misdemeanor level offense and it carries with it the

of motor vehicles. knowing that your registration had been suspended by the director driven a c ertain motor vehicle in the State of New Hampshire after prove beyond a reasonable doubt that you drove or permitted to be registration, that is a Class B misdemeanor. The State has to Sir, you’re charged with operating on a suspended

The trial court ruled as follows at the close of evidence:

not rec all.” “was sent,” and that “his testimony was conflicting as to what he does and does testified that he “lives at the address to which the notice” of license suspension the same for the registration.” For its part, the State argued that the defendant suspended, and because “he had a license that on its face appeared valid a nd suspended license and registration, he was unaware that they had been offense s because, when the defendant was arrested for driving with a “enter a finding of not guilty” as t o both the misdemeanor and violation - level license had been suspended. At trial, defense counsel urged the trial court to suspended; the violation - level offense alleged that he drove after his driver’s that the de fendant drove after his motor vehicle registration had been his privilege to d o so had been suspended. The misdemeanor offense alleged p. 3 3

legislature intended there to be a mens rea of “knowingly” for the misde meanor decision in Curran to be instructive. The issue in that case was whether the “knowingly” for the violation - level offenses set forth in RSA 26 p. 3 3:64, we find our In discerning whether the legislature intended th ere to be a mens rea of

26 p. 3 3:64, II. evidence that the person was notified of the suspension or revocation.” RSA last known address as shown on the records of the division shall be prima facie “[e]vidence that the notice of suspension or re vocation was sent to the person’ s trial of an y offense under RSA 263:64, including violation - level offenses, privilege to drive is suspended or revoked.” RSA 263:64, I. Moreover, i n the penalize the same conduct — driving “while the person’s driver’s license or requirement. All offenses in RSA 263:64, including violation - level offenses, intend that only the misdemeanors set forth therein include a mens rea The very structure of RSA 263:64 indicates that the legislature did not

violates” RSA 26 p. 3 3:64 “shall be guilty of a vio lation”). that “[e] xcept as provided in paragraphs IV, V - a, and VI, any person who RSA 263:64, IV, V - a(b), VI (describing misdemeanor offenses), VII (providing the suspension or r evocation.” State v. Curran, 140 N.H. 530, 531 (1995); see of fense constitutes a misdemeanor or violation depends upon “the reason for is suspended or revoked.” RSA 263:64, I. Under RSA 263:64, whether an same conduct — driving “while the person’s driver’s license or privilege to drive RSA 263:64 sets forth misdemeanors and violation - level offenses f or the

have said or add language that the legislature did not see fit to include. Id. from the statute as written and will not consider what the legislature might State v. Maxfield, 167 N.H. 677, 679 (2015). We interpret legislative intent where possible, we ascribe the plain and ordinary meanings to the words used. Mayo, 167 N.H. 44 p. 3 3, 450 (2015). We first examine statutory language, and, We review the trial court’s statutory interpretation d e novo. State v.

p. 3 374, 377 (2014). further factual development. See Camire v. Gunstock Area Comm’ n, 166 N.H. issue constitutes a discrete question of statutory interpretation, requiring no parties to an appeal, not upon the reviewing co urt, and because the appeal address the issue on appeal because preservation is a limitation upon the We assume without deciding that the State is correct. Nonetheless, we elect to issue, we note that the St ate contends that it is not preserved for our review. not require a mens rea of “knowingly.” Before addressing the merits of this that the violation - level offense of which the defendant was found guilty does The sole issue on appeal is whether the trial court erred when it ruled

defendant’s motion to stay payment of the fine pending this appeal. 26 p. 3 3:6 p. 4 4, VII. This appeal followed. The trial court subsequently granted the The trial court imposed a $250 fine and a $60 penalty assessment. See RSA 4

above reasons, therefore, we hold that the trial court erred when it concluded rebut assertions of the defendant that we have not discussed. For all of the We need not address the State’s remaining arguments because they

mens r ea of “knowingly.” the legislature intended violation - level offenses under RSA 263:6 p. 4 4 to contain a Straut or RSA 264:3, I, are relevant to the issue on appeal — namely, whether and motor vehicle registrations. The State has failed to demonstrate that either 264:3, I (2014), which concerns the mandatory suspension of drivers ’ licenses (explaining that Straut is no longer good law). The State also relies upon RSA (preface to opinion). But see Fuller v. Sirois, 97 N.H. 100, 100 - 01 (1951) failed to comply with the Financial Responsibility Act. Str aut, 92 N.H. at 124 plaintiff could maintain a personal injury action for his injuries even though he Carpenter, 92 N.H. 123 (1942). The issue in Straut, however, was whether a In arguing for a contrary re sult, t he State relies upon Straut v.

Methodist Church of N.H., 157 N.H. 25 p. 4 4, 256 - 57 (2008). of statutory construction tha t the word “may” is permissive. State v. Korean violation - level offenses that do require proof of a mens rea. It is a general rule However, nothing in RSA 626:2, I, precludes the legislature from creating need not require proof of a mens rea when it defines a violation - level offense. such culpability.” The plain meaning of RSA 626:2, I, is that the legislature negligently,” but that a person “may be guilty of a violation w ithout regard to felony, or a misdemeanor only if he acts purposely, knowi ngly, recklessly or different result. RSA 626:2, I, provides t hat “[a] person is guilty of murder, a RSA 626:2, I, upon which the Stat e also relies, does not require a

level offenses. See i d. that the legislature intended to modify the mens rea requirement for v iolation - Curran, 1 p. 4 40 N.H. at 532. But neither does that legislative history demonstrate for those violations of RSA 263:64 tha t would remain. . . misdemeanor [s].” indication that the legislature intended to eliminate the mens rea requirement 787 (1989). In Curran, w e concluded that this legislative hist ory “offer[ed] no faced no app arent threat of a jail sentence.” I d. at 532; s ee N.H.S. Jour. 438, indigent defense fund from the cost of providing attorneys to defendants who legislature reduced certain offenses to violati on - level offenses to “preserve the constituted a misdemeanor.” Curran, 140 N.H. at 531. In 1989, the this case. Under a prior version of the statute, “any violation of the st atute consulted in Curran does not require that we reach a diff erent conclusion in Contrary to the State’s assertions, the legislative history that we

Id. at p. 5 530 - 32; see RSA 626:2, I (2007). requirement of RSA 626:2, I,” w e concluded that the legislature so intended. language and legislative history of RSA 263:6 p. 4 4, combined with the mens rea set forth in RSA 263:64, IV. Curran, 140 N.H. at 530 - 31. Based upon “the 5

DALIANIS, C.J.