This website is merely a guide and overview to the extensive law on DWI in New Hampshire. This book is not meant to
be a replacement for a qualified DWI lawyer. DWI is one of the most complicated areas of the criminal law. From
evidence, to statutes, to science, it is very complex. The smallest detail can often be the difference between winning
and losing a case.
This website is not a how-to book on how to drive drunk and get away with it. As, I have told other people, no lawyer I
know condones drunk driving. That is not to say everyone accused of drunk driving is guilty. In fact, the opposite is
true. Everyone accused of DWI is innocent until proven guilty. You have rights under the Constitution. This website
attempts to demonstrate some rights you have. One of the most important rights is the right to have an attorney
The author expressly disclaims all responsibility for any inaccuracies in the website, and nothing herein creates an
Attorney/ Client relationship. Further, I am in no way responsible for any actions you take in relying on the material in this website.
In New Hampshire, there are a few types of charges related to Driving while intoxicated (DWI). Driving under the
influence (DUI), and Driving while intoxicated (DWI), are all synonyms, and are used interchangeably in the statute1.
Throughout this book, I refer to all types of drunk driving and drugged driving as DWI.
All DWIs are criminal offenses; either misdemeanors, or felonies. If you are found guilty, you will have a criminal record.
Driving Under the Influence of Alcohol (ability impaired) The most common DWI charge is driving while under the
influence of alcohol. The statute makes it unlawful to: drive or attempt to drive a vehicle upon any way while under the
influence of alcohol2.
To be convicted of this offense, the state must prove three things beyond a reasonable doubt:
1 N.H. RSA 265-A:Alcohol and drug impairment
2 N.H. RSA 265-A:2(I)(a)
2: Public way,
3: Under the influence of alcohol (ability impaired to any
degree due to alcohol3).
A Public Way is usually a road. It can be any other place that the public might have access to drive on. It usually is
not something private, such as your driveway or front lawn.
Driving while having a Blood Alcohol Content above the Legal Limit (Per Se Offense)
The second most common type of DWI is driving while having an alcohol concentration above the legal limit. This
limit is .08, or .02 for drivers under 21. To obtain a conviction, the State must prove three things beyond a
2: Public way
3: An alcohol concentration of 0.08 or more, or in the case
of a person under the age of 21, 0.02 or more.
3 State v. Taylor, 132 N.H. 314, 316 (1989)
Driving while Ability Impaired do to a Controlled Drug
To obtain a conviction for DWI Drugs, the State must prove three things beyond a reasonable doubt:
2: Public way
3: Under the influence of a controlled drug (ability impaired to any degree due to a controlled drug).
The State must prove a Controlled Drug. Many drugs are not controlled drugs, especially prescription drugs. If you
were driving while under the influence of a prescription drug, the first thing to determine is whether the drug was a
controlled substance. If it is not, you can be found not guilty on the DWI charge. The State can, however, bring
other charges such as reckless driving.
There is no equivalent per se drug statute. Meaning, no matter what quantity of drugs may be in your body, the
State must still prove the drugs impaired your ability to drive. Finally, there is no presumption that a certain
quantity of a controlled drug leads to impairment. It is crucial to understand how the State’s expert will likely
testify. It is also a good idea to obtain your own expert witness to show the amount of drugs in your body would
not necessarily have led to impairing your ability to drive.
If you are charged with the crime of DWI, there are five additional things that can make the crime an Aggravated
1: Driving more than 30 miles per hour over the speed
2: Causing an accident resulting in serious bodily injury to -
yourself or another person;
3: Attempting to elude pursuit by a law enforcement officer by increasing speed, extinguishing headlamps or, in
the case of a boat, navigational lamps while still in motion, or abandoning a vehicle, boat, or OHRV while being
4: Having a passenger in the vehicle who is under the age of 16; or
5: While having an alcohol concentration of 0.16 or more.
Besides proving the underlying DWI, the State must prove any of these aggravating factors beyond a reasonable doubt
to obtain a conviction for Aggravated DWI.
Boating while Intoxicated (BWI)
It is against the law to operate a boat while under the influence of alcohol or drugs, or be above the legal limit for
alcohol. If you are convicted of BWI your regular driver’s license will be suspended.
DWI Subsequent Offense
If you already have a previous DWI conviction, you can be charged with a subsequent offense DWI. In order to obtain
a conviction for DWI subsequent offense, the State must first prove the underlying DWI, and then the State must
also prove beyond a reasonable doubt the previous conviction for DWI4.
If it is a second offense DWI charge, the previous conviction must have been within the previous 10 years5.
However, if it is a third or more offense, the State can use a “lifetime look-back” period. This means if you had two
DWIs 20 years ago, and are charged again, it will count as a third offense.
There are two types of Felony DWI charges; all the others are either Class A or Class B misdemeanors.
The two felony DWI charges are a conviction for a fourth or subsequent offense6, or for an aggravated DWI which
resulted in serious bodily injury.7
4 State v. Lougee, 137 NH 635, 636 (1993)
5 N.H. RSA 265-A:18(IV)
6 N.H. RSA 265-A:18(IV)(c)
7 N.H. RSA 265-A:18(I)(c)