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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Rockingham
No. 2016-0698


                        THE STATE OF NEW HAMPSHIRE

                                        v.

                                    MEGHAN SAGE

                           Argued: October 12, 2017
                        Opinion Issued: February 9, 2018

      Gordon J. MacDonald, attorney general (Scott Chase, attorney, on the
brief and orally), for the State.


      Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally),
for the defendant.

       LYNN, J. The defendant, Meghan Sage, appeals her conviction for
driving under the influence (DUI), second offense, see RSA 265-A:2, I (2014);
RSA 265-A:18, IV (2014), following a de novo jury trial in the Superior Court
(Wageling, J.), see RSA 599:1 (Supp. 2016). On appeal, she argues that the
trial court erred by: (1) denying her motion to suppress evidence derived from
expansion of the underlying traffic stop; (2) declining to exclude breathalyzer
test results, or alternatively dismiss her charge, for an alleged violation of her
due process rights under Part I, Article 19 of the New Hampshire Constitution;
and (3) enhancing her sentence under RSA 265-A:18, IV based upon a 2008
conviction from Maine for operating under the influence (OUI), see Me. Rev.
Stat. Ann. tit. 29-A, § 2411 (Supp. 2007). We affirm.

                                         I

       The following facts are taken from the trial court’s orders in this case. At
approximately 5:00 a.m. on April 19, 2014, Trooper Ronchi of the New
Hampshire State Police observed a vehicle traveling at 88 miles per hour in a
65 mile-per-hour zone on Interstate 95. See RSA 265:60, II (2014). After giving
pursuit, Ronchi caught up to the vehicle and observed that it had not slowed,
but was now traveling at 91 miles per hour. Ronchi activated his emergency
lights and the vehicle promptly pulled over.

      Ronchi approached the vehicle and made contact with its operator and
sole occupant, a female later identified as the defendant. While he spoke to the
defendant, Ronchi detected the odor of alcohol emanating from her vehicle and
observed that she had red, watery eyes. Ronchi requested the defendant’s
license and registration, which she produced without difficulty, and then
inquired into her travels. Initially, the defendant explained that she was on her
way from work to her boyfriend’s house in Connecticut. As the two continued
to converse, however, the defendant altered her story, contending that she was
on her way from home, not work.

       Concerned that she might be impaired based upon the foregoing
observations, Ronchi asked the defendant how much alcohol she had
consumed prior to operating her vehicle. The defendant replied “none.” His
concern remaining, Ronchi asked the defendant if she would be willing to
perform field sobriety tests. The defendant agreed to do so and subsequently
failed each test — horizontal gaze nystagmus, walk-and-turn, one-leg stand —
Ronchi administered. Ronchi thereafter placed the defendant under arrest for
DUI and transported her to the Hampton police station for processing.

      After arrival at the station and review of her rights under the
Administrative License Suspension form, the defendant consented to a breath
test. Testing of her breath samples revealed a blood alcohol level of 0.12.
Upon hearing the results, the defendant requested a blood test at least three
separate times. Ronchi denied the requests, explaining to the defendant each
time that his investigation was complete and he had no need to conduct further
testing. Ronchi in turn provided the defendant with capture tubes containing
her breath samples. See RSA 265-A:7 (2014) (amended 2016).

      A bail commissioner subsequently arrived and released the defendant on
$2,500 personal recognizance bail. The defendant was then offered several
opportunities to use a telephone. When she was unsuccessful in arranging for
someone to pick her up at the station, Ronchi placed the defendant in
protective custody due to her intoxication level and transported her to the


                                        2
Rockingham County House of Corrections. After being held in protective
custody for 8 hours, during which she made additional telephone calls to
family members to no avail, the defendant was released from the house of
corrections. She did not seek to have an independent blood test performed at
any point thereafter.

       Following a bench trial, the circuit court found the defendant guilty of
DUI. See RSA 265-A:2, I. The defendant then appealed to the superior court
for a de novo jury trial. See RSA 599:1. Prior to trial, the defendant moved to
suppress evidence obtained during the traffic stop, arguing that Ronchi
unlawfully expanded the scope of the stop when he asked her to perform field
sobriety tests. The defendant further moved to exclude the results of her
breath test, or to dismiss the charge, arguing that Ronchi violated her due
process rights by denying her the opportunity to obtain an independent blood
test. See RSA 265-A:7 (2014) (amended 2016). The defendant also challenged
the State’s intent to use her prior OUI conviction from Maine for sentence
enhancement purposes, see RSA 265-A:2, I,:18, IV, asserting that Maine’s OUI
offense was not “reasonably equivalent” to New Hampshire’s DUI offense under
the elements-based approach to the determination established by this court in
State v. Hull, 149 N.H. 706, 710 (2003).

      Following an evidentiary hearing, the trial court denied the defendant’s
suppression motion in its entirety. With regard to the stop, the trial court
found that Ronchi’s expansion of the stop was justified by a reasonable,
articulable suspicion that the defendant was driving under the influence. As to
testing, the trial court found that the police afforded the defendant the
opportunity to obtain an independent test by providing her access to a
telephone, after which she made an inadequate effort to arrange for one.
Accordingly, the trial court concluded that the defendant had failed to
demonstrate a violation of her due process rights.

       The trial court also rejected the defendant’s challenge to the use of her
Maine OUI conviction. Although acknowledging that the elements of the two
offenses differ, the trial court determined that, pursuant to Hull, it could also
consider the facts underlying the defendant’s Maine conviction in determining
whether it was reasonably equivalent to a conviction for New Hampshire’s DUI
offense. After review of the factual allegations in the underlying police records,
the trial court found that the defendant’s conduct leading to her conviction for
Maine’s OUI offense would have also sustained a conviction for New
Hampshire’s DUI offense. Thus, the trial court concluded that the Maine OUI
conviction was a “reasonably equivalent offense” for sentence enhancement
purposes under RSA 265-A:18, IV. A jury later found the defendant guilty of
DUI and the trial court sentenced her as a subsequent offender in accordance
with its finding. This appeal followed.




                                        3
                                         II

       The defendant first contends that, after stopping her for speeding,
Ronchi unlawfully expanded the scope of the traffic stop when he asked her to
step out of the vehicle to perform field sobriety tests. Accordingly, the
defendant argues that the trial court erred in denying her motion to suppress
all evidence derived from this violation of her rights under the Fourth and
Fourteenth Amendments to the United States Constitution and Part I, Article
19 of the New Hampshire Constitution. Because the defendant has failed to
demonstrate on appeal that she preserved her federal constitutional argument,
see State v. DeCato, 156 N.H. 570, 573 (2007), we limit our review to her state
constitutional argument and rely upon federal law merely to aid our analysis,
see State v. Dewitt, 143 N.H. 24, 33 (1998); State v. Ball, 124 N.H. 226, 233
(1983). “When reviewing a trial court’s order on a motion to suppress, we
accept the trial court’s factual findings unless they lack support in the record
or are clearly erroneous, and we review legal conclusions de novo.” State v.
Blesdell-Moore, 166 N.H. 183, 187 (2014).

       A traffic stop is a seizure for purposes of the State Constitution. Id. “The
scope of such an investigative stop must be carefully tailored to its underlying
justification, must be temporary, and last no longer than is necessary to
effectuate the purpose of the stop.” Id. (quotation and brackets omitted). “The
scope of a stop may be expanded to investigate other suspected illegal activity
only if the officer has a reasonable and articulable suspicion that other
criminal activity is afoot.” Id. (quotation omitted). “To determine the
sufficiency of an officer’s suspicion, we evaluate the articulable facts in light of
all surrounding circumstances, keeping in mind that a trained officer may
make inferences and draw conclusions from conduct that may seem
unremarkable to an untrained observer.” Id. at 188. Although we recognize
that experienced officers’ perceptions are entitled to deference, this deference
should not be blind. Id. The “articulable facts must lead to something specific
and not simply a general sense that this is probably a bad person who may
have committed some kind of crime.” Id. at 188-89 (quotation omitted).

       In this case, we agree with the trial court that, based upon the following
observations, Ronchi possessed a reasonable and articulable suspicion
sufficient to justify expanding the scope of the stop to investigate whether the
defendant was driving under the influence: (1) the defendant’s inability to
maintain a correct speed; (2) the odor of alcohol emanating from her vehicle; (3)
her red and watery eyes; and (4) her inconsistent explanations regarding her
travels. Consequently, Ronchi was permitted to ask the defendant a moderate
number of questions to confirm or dispel this suspicion, see State v. Bell, 164
N.H. 452, 455 (2012), and to administer field sobriety tests, see State v.
Steeves, 158 N.H. 672, 677 (2009).




                                         4
       In arguing that the foregoing observations are insufficient to establish a
reasonable suspicion, the defendant begins by asserting that most are readily
attributable to a cause other than impairment — e.g., red and watery eyes may
be attributable to fatigue. As we have previously recognized, however, “[t]hat
observed activity could be consistent with both guilty and innocent behavior
does not mean that an officer must rule out innocent explanations before
proceeding.” State v. Galgay, 145 N.H. 100, 103 (2000); accord State v.
Turmel, 150 N.H. 377, 381 (2003). Moreover, we do not consider each of
Ronchi’s observations in isolation; rather, we consider them together and in
light of the reasonable inferences that an officer who is experienced in detecting
and investigating impaired drivers may draw. State v. Wallace, 146 N.H. 146,
149-50 (2001). Thus, while the defendant’s inconsistent statements, vehicle
speed, and red and watery eyes may seem innocuous in isolation, these
observations must be considered together with the odor of alcohol emanating
from her vehicle. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (“Any one
of these factors is not by itself proof of any illegal conduct and is quite
consistent with innocent travel. But we think taken together they amount to
reasonable suspicion.”).

       The defendant nevertheless contends that, even considering Ronchi’s
observations collectively, he did not observe other hallmark indicators of
impairment, such as vehicle control issues or slurred speech. Thus, the
defendant argues, it was not reasonable for Ronchi to “conclude” that she was
impaired. Ronchi, however, did not need to “conclude” that the defendant was
impaired in order to expand the scope of the stop. Rather, he needed to
possess a reasonable and articulable suspicion that she was. See State v.
Sousa, 151 N.H. 297, 299 (2004) (recognizing that reasonable suspicion is a
“less demanding standard than probable cause”); see also Sokolow, 490 U.S. at
7 (recognizing that the level of suspicion necessary for an investigative
detention “is considerably less than proof of wrongdoing by a preponderance of
the evidence”). Although other indicators of impairment would have arguably
strengthened Ronchi’s reasonable and articulable suspicion, we do not believe
that their absence acted to defeat it in this case.

      Accordingly, because Ronchi’s expansion of the stop was justified by a
reasonable, articulable suspicion that the defendant was driving under the
influence, we conclude that the trial court did not err in denying the
defendant’s motion to suppress the evidence derived therefrom.

                                        III

       We next address the defendant’s argument that Ronchi violated her
statutory rights as well as her due process rights under Part I, Article 15 of the
New Hampshire Constitution by failing to accommodate her request for an
independent blood test. The defendant contends that, in light of these
violations, the trial court erred by not dismissing the charge, or, at the


                                        5
minimum, excluding her breath test results. We find no error in the trial
court’s ruling.

       As a preliminary matter, we reject the defendant’s position that it would
be proper to evaluate her statutory claim by construing the implied consent
statute in effect at the time of her arrest in 2014 with the 2016 amendments
thereto. See, e.g., RSA 265-A:7 (Supp. 2016) (eff. Jan. 1, 2017) (requiring that
when law enforcement ask a person to submit to a breath test they provide
“contact information for individuals and the nearest facilities that make
themselves available to draw and test blood”). Although we have recognized
“where a former statute is clarified by amendment, the amendment is strong
evidence of the legislative intent concerning the original enactment,” Bovaird v.
N.H. Dep’t of Admin. Servs., 166 N.H. 755, 763 (2014) (quotation omitted),
such is not the case here. The 2016 amendments to the implied consent
statute do not clarify the former version; they change it. Presumably out of
consideration of the foregoing, the legislature did not give the amendments
retroactive effect, but rather set January 1, 2017 as their effective date. See
State v. Carpentino, 166 N.H. 9, 15 (2014) (“We find it difficult to infer
legislative intent that an amendment should apply retrospectively when the
legislature set an effective date for that amendment nearly six months into the
future.”); see also 2 N.J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction § 41:4, at 417-18 (7th ed. 2009) (“The presumption against
applying a newly enacted statute retrospectively exists as a matter of fairness,
so that people have opportunities to know what the law is and to conform their
conduct accordingly.”). Accordingly, we limit our analysis of the defendant’s
statutory claim to the version of the implied consent statute in effect at the
time of her arrest.

       That version requires an officer, before administering any blood-alcohol
test, to inform an arrested person of “his or her right to have an additional test
or tests of his or her blood made by a person of his or her own choosing.” RSA
265-A:8, I(a) (2014) (amended 2016); see RSA 265-A:4 (2014) (amended 2017).
It further requires that the arrested person be afforded “an opportunity to
request such additional test.” RSA 265-A:8, I(b) (2014). “The right to an
additional test is not absolute, however, as ‘the failure or inability of an
arrested person to obtain an additional test’ will not ‘preclude the admission of
any test taken at the direction of a law enforcement officer.’” State v. Winslow,
140 N.H. 319, 321 (1995) (brackets omitted) (quoting RSA 265:86 (repealed
2006), part of the implied consent law then in effect).

      “Though [DUI] defendants enjoy only a limited statutory right to an
independent test, under the State Constitution some process is due individuals
who seek to exercise this right.” Id. Indeed, “without the opportunity to
request the additional test, the instruction about the right to have one would
be valueless.” State v. Dunsmore, 112 N.H. 382, 385 (1972) (Grimes, J.,
dissenting) (discussing the implied consent law then in effect). Accordingly,


                                        6
“due process requires that a [DUI] defendant be afforded a meaningful
opportunity to request an additional blood-alcohol test.” Winslow, 140 N.H. at
322. “Whether the State has so frustrated the defendant’s efforts as to deny
him a meaningful opportunity will depend upon the circumstances of the case.”
Id.

       We find, as did the trial court, our decision in Winslow to be instructive
in the present case. In Winslow, a defendant arrested for driving while
intoxicated, who had consented to a breath test while also requesting an
independent blood test, was told he would be given the opportunity for the
latter following completion of the former. Id. at 320. The defendant renewed
his request for a blood test following his breath test and, after booking him, the
police provided him with access to a telephone. Id. After he was unsuccessful
in contacting someone to assist him in making bail and arranging
transportation for a blood test, the defendant complained that the telephone
permitted only collect calls. Id. He did not, however, request the police to
contact a physician on his behalf or inquire if transportation could be
arranged, and he was transported to a county jail. Id. at 320-21.

      The defendant appealed the trial court’s denial of his motion to suppress
the results of the breath test, arguing that the police violated his due process
rights by interfering with his efforts to obtain an independent blood test. Id. at
321. In concluding that the trial court did not err, we observed that the
defendant was informed of his statutory right to an independent test and
provided with a meaningful opportunity to obtain one when the police provided
him with a telephone. Id. at 322. Although noting that “access to a telephone
may not satisfy the requirements of due process in all circumstances,” we
further observed that the defendant did not explicitly ask for assistance after
his unsuccessful calls and, therefore, he had failed to demonstrate that due
process required further accommodation. Id.

       Likewise, in this case, the record shows that the defendant was informed
of her statutory right to an independent blood test and, after the defendant
requested such a test, the police afforded her a meaningful opportunity to
obtain one by providing several opportunities to use a telephone, both at the
police station and at the house of corrections. In turn, also as in Winslow,
there is no indication in the record that the defendant sought any further
accommodation from the police following her unsuccessful calls, such as
requesting assistance with arranging testing. Finally, we end by noting, as we
did in Winslow, that the police provided the defendant with her breath test
sample capture tubes. See RSA 265-A:7.

       Accordingly, we conclude that the trial court did not err in finding no
violation of the defendant’s statutory or due process rights. In light of the
foregoing, we need not address the defendant’s arguments regarding the proper



                                        7
remedy for a due process violation under the facts and circumstances of this
case.

                                       IV

      We lastly address whether the trial court erred in sentencing the
defendant as a subsequent offender pursuant to RSA 265-A:18, IV based upon
her 2008 OUI conviction from Maine.

       In relevant part, RSA 265-A:18 provides that a person convicted of DUI
shall be subject to enhanced penalties if, as alleged in the complaint, he or she
“has had one or more prior convictions under RSA 265-A:2, I or RSA 265-A:3,
or RSA 630:3, II, or under reasonably equivalent offenses in an out-of-state
jurisdiction.” RSA 265-A:18, IV (emphasis added). In Hull, we were called
upon to determine whether, for sentence enhancement purposes, a defendant’s
prior conviction for Massachusetts’s OUI offense was “reasonably equivalent” to
a conviction for New Hampshire’s DUI offense. Hull, 149 N.H. at 708-11
(analyzing RSA 265:82-b (repealed 2006), part of the DUI statute then in effect).
Recognizing that neither we nor the legislature had to that point defined what a
“reasonably equivalent offense” was, id. at 709 (quotation omitted), we looked
to other jurisdictions for guidance and observed the following:

             While the tests applied in other jurisdictions differ, one
      common factor is whether the evidence required to sustain a
      conviction for the out-of-state jurisdiction’s offense would
      necessarily sustain a conviction under the home state’s statute. If
      the answer to this question is “yes,” the offense is an “equivalent
      offense” for sentencing enhancement purposes. If the answer to
      this question is “no,” the offenses are not “equivalent.” The
      language of the elements of the statutes need not be identical,
      because the purpose of subsequent offender laws is to prohibit and
      punish a specific type of recurring conduct by imposing an
      enhanced sentence. The prior offense is not an additional element
      of the present charge.

Id. at 710 (citations omitted). Finding it persuasive and consistent with a test
then used by the department of safety in a different context, we applied this
elements-based approach to the New Hampshire and Massachusetts offenses
to determine whether they were reasonably equivalent. Id.

       The Massachusetts and New Hampshire offenses contained the same
three elements, two of which were identical in language, with the only
difference between the third being the phrases “operates a motor vehicle” under
Massachusetts’s offense and “drive a vehicle” under New Hampshire’s offense.
Id. at 710-11 (quotation omitted). As we had never previously drawn a
distinction between the terms “operate” and “drive” under our DUI offense, we


                                        8
ultimately concluded that the two offenses were “reasonably equivalent”
because the evidence required to sustain a conviction for OUI in Massachusetts
would necessarily sustain a conviction for DUI in New Hampshire. Id. at 710-
11.

        Applying Hull’s elements-based approach to the present matter, in order
to convict the defendant of OUI in Maine, the prosecution needed to prove
beyond a reasonable doubt that she: (1) operated or attempted to operate a
motor vehicle; (2) while under the influence of intoxicants or while having a
blood-alcohol level of 0.08% or more. Me. Rev. Stat. Ann. tit. 29-A, § 2411, 1-
A(A) (Supp. 2007); see State v. Deschenes, 780 A.2d 295, 298 (Me. 2001)
(construing a former version of Maine’s OUI statute). By contrast, the New
Hampshire DUI statute under which the defendant was charged required the
State to prove beyond a reasonable doubt that she: (1) drove or attempted to
drive a vehicle; (2) upon any way; (3) while under the influence of intoxicating
liquor or while having a blood alcohol level of 0.08% or more. See RSA 265-
A:2, I.

      Thus, New Hampshire’s DUI offense requires proof of an essential
element that Maine’s OUI offense does not — the impaired driving must have
occurred upon a “way.” Compare id. with Me. Rev. Stat. Ann. tit. 29-A, § 2411,
1-A(A)). Our legislature has defined a “way” as follows:

      any public highway, street, avenue, road, alley, park, parking lot or
      parkway; any private way laid out under authority of statute; ways
      provided and maintained by public institutions to which state
      funds are appropriated for public use; any privately owned and
      maintained way open for public use; and any private parking lots,
      including parking lots and other out-of-door areas of commercial
      establishments which are generally maintained for the benefit of
      the public.

RSA 259:125, II (2014). The defendant argues that, in light of the foregoing,
Hull compels the conclusion that the two offenses are not “reasonably
equivalent.” That is, because New Hampshire’s DUI offense requires affirmative
proof that the offense occurred on a “way,” while Maine’s OUI offense does not,
the evidence required to sustain a conviction for Maine’s offense would not
“necessarily sustain a conviction” for New Hampshire’s offense. See Hull, 149
N.H. at 710.

      Acknowledging this result under a “narrow” application of Hull, the State
points out that this would mean prior impaired-driving convictions from thirty-
four other states — including two other New England states (Rhode Island and
Connecticut) — and the District of Columbia would not qualify for sentence
enhancement under RSA 265-A:18. This is because, like Maine, these
jurisdictions do not require affirmative proof that the impaired-driving offense


                                       9
occurred upon a “way.” See, e.g., Conn. Gen. Stat. Ann. § 14-227a (West Supp.
2017); 31 R.I. Gen. Laws Ann. § 31-27-2 (West Supp. 2016). The State argues
that drastically limiting the scope of sentence enhancement under RSA 265-
A:18 solely on this basis runs counter to the statute’s purpose of deterring and
more harshly penalizing subsequent acts of driving under the influence in New
Hampshire regardless of whether the prior act occurred in this state or
another. Cf. Petition of Mooney, 160 N.H. 607, 612 (2010) (recognizing the
“purpose of the [DUI] statutes is to prevent the operation of cars by persons
under the influence of intoxicating liquor” and upholding an administrative
rule effectuating this purpose by permitting imposition of additional conditions
on license restoration for individuals with prior impaired-driving arrests
(quoting State v. Goding, 126 N.H. 50, 52 (1985))). We are persuaded by the
State’s argument.

       When establishing and applying the elements-based approach in Hull,
we did not have occasion to consider the significance of an element, such as
the “way” element, which has, at most, only a tangential relationship to the
harm the statute is designed to guard against. This was so because, like New
Hampshire’s offense, Massachusetts’s OUI offense contains a “way” element.
See Hull, 149 N.H. at 710-11; Mass Gen. Laws Ann. ch. 90, § 24(1)(a)(1) (West
Supp. 2017). Though historically the definition of “way” applicable to our DUI
statutes limited the prohibition against impaired driving to New Hampshire’s
“public” highways or ways, see, e.g, State v. Tardiff, 117 N.H. 53, 56 (1977);
State v. Rosier, 105 N.H. 6, 7-9 (1963); State v. Gallagher, 102 N.H. 335, 336
(1959), its definition underwent a significant expansion in 1981. As part of the
legislature’s larger effort to close “loopholes” and “get tough” on DUI, the
definition was expanded to include “private ways among the areas upon which
persons may be convicted of [DUI]” in our State. State v. Lathrop, 164 N.H.
468, 470 (2012) (quotations omitted). The breadth of this expanded definition
led us to conclude in State v. Lathrop that a marked private road in a lakeside
community constituted a “way” because the road was ungated and, therefore,
the public could access it even if unauthorized to do so:

      Public safety requires that [DUI] statutes apply to any property to
      which the public has access. It would be contrary to legislative
      intent to construe the statute to provide that a private road in a
      lakeside community that is used by residents, guests, and select
      invitees is a [DUI]-free zone.

Id.

      Similarly, the breadth of the definition of “way” under our DUI statutes
leads us to conclude that the element’s absence from an out-of-state
jurisdiction’s impaired-driving offense does not, alone, render that offense
nonequivalent to our own. Though there remain private driveways, paths, and
roads in New Hampshire upon which an individual may drive while impaired


                                       10
with impunity, this State’s expansive definition of a “way” renders them few
and far between. It therefore follows that there are also likely to be few, if any,
instances in which an out-of-state impaired-driving conviction will stem from
operation upon some type of “way” that does not fall within the scope of our
definition. To permit these rare instances to prohibit sentence enhancement
for prior impaired-driving convictions from the majority of out-of-state
jurisdictions would be, in our opinion, to construe RSA 265-A:18 to require
out-of-state jurisdictions’ offenses to be “identical,” and not simply “reasonably
equivalent,” to our own. Consequently, we hold that, although it remains an
essential element of proof for a conviction under our DUI offense, the “way”
element is immaterial to the “reasonably equivalent offenses” determination
under Hull. We do not agree with the dissent’s view that, in reaching this
result, we are violating the principles of stare decisis. We remain committed to
the elements-based approach to equivalency that we adopted in Hull. We
merely recognize today a narrow exception to this approach for cases, such as
this one, where the non-equivalent element has little, if any, bearing on the
harmfulness of the conduct proscribed.

      Accordingly, turning to a comparison of the pertinent elements of the two
offenses, it is apparent that the offenses of New Hampshire and Maine are
“reasonably equivalent.” Compare RSA 265-A:2, I, with Me. Rev. Stat. Ann. tit.
29-A, § 2411, 1-A(A). Specifically, because both offenses require proof that a
defendant (1) drove/operated or attempted to drive/operate a motor vehicle (2)
while under the influence of intoxicating alcohol and/or drugs or while having
a blood alcohol level of 0.08%, the evidence required to sustain a conviction for
Maine’s OUI offense would necessarily prove all elements of New Hampshire’s
DUI offense other than the “upon a way” requirement. Cf. Hull, 149 N.H. at
710-11.

       Thus, we conclude that the trial court did not err in sentencing the
defendant as a subsequent offender pursuant to RSA 265-A:18, IV. In light of
our holding in this case, we need not determine whether the trial court erred by
considering the conduct underlying the defendant’s Maine OUI conviction when
applying the Hull elements-based approach. But cf. Descamps v. U.S., 133 S.
Ct. 2276, 2287-89 (2013) (discussing the rationale behind the establishment of
an elements-centric, formal categorical approach — as opposed to a fact-
specific approach — to whether a prior conviction qualifies as one of the
enumerated predicate offenses under the Armed Career Criminal Statute, 18
U.S.C. § 924(e)).

                                                   Affirmed.

     DALIANIS, C.J., and BASSETT and HANTZ MARCONI, JJ., concurred;
HICKS, J., concurred in part and dissented in part.




                                        11
       HICKS, J., concurring in part and dissenting in part. Although I concur
fully in Sections II and III of the majority’s opinion, I respectfully dissent from
Section IV because I believe that principles of stare decisis require us to adhere
to the elements-based approach adopted and applied in State v. Hull, 149 N.H.
706, 708-11 (2003). I can appreciate the State’s concern that straightforward
application of this approach, both presently and prospectively, would leave it
incapable of seeking sentence enhancement penalties against DUI offenders
with prior impaired-driving convictions from several out-of-state jurisdictions.
I can also appreciate why the majority shares this concern and, therefore,
elects to modify Hull to allay it.

       The doctrine of stare decisis, however, “demands respect in a society
governed by the rule of law, for when governing legal standards are open to
revision in every case, deciding cases becomes a mere exercise of judicial will
with arbitrary and unpredictable results.” State v. Quintero, 162 N.H. 526,
532 (2011) (quotation omitted). “Indeed, principled application of stare decisis
requires a court to adhere even to poorly reasoned precedent in the absence of
some special reason over and above the belief that a prior case was wrongly
decided.” Id. at 539 (quotation omitted). We have identified four factors that
this court must consider in determining whether precedent should be overruled
or modified. See id. at 532-33. Neither the State in its brief, nor the majority
in its well-reasoned analysis and conclusion in Section IV, addresses any of
them. See State v. Blackmer, 149 N.H. 47, 49 (2003) (noting that we confine
our review to issues that are fully briefed).

      Consequently, I would adhere to the elements-based approach delineated
in Hull, vacate the defendant’s sentence because the evidence required to
sustain a conviction under Maine’s OUI statute would not “necessarily sustain
a conviction,” Hull, 149 N.H. at 710, under New Hampshire’s DUI statute, and
remand to the trial court for resentencing.




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