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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Merrimack
No. 2016-0268


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                  JAMES FOGG

                             Argued: April 11, 2017
                         Opinion Issued: August 1, 2017

      Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant
attorney general, on the brief and orally), for the State.


      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

       LYNN, J. The defendant, James Fogg, appeals an order of the Superior
Court (McNamara, J.) denying his motion to dismiss one of the two counts of
aggravated driving while intoxicated (DWI) of which he was convicted. See RSA
265-A:3 (2014). On appeal, the defendant asserts that the trial court’s
interpretation of RSA 265-A:3 is incongruent with the statute’s text and
legislative history, and also violates his double jeopardy rights under the State
and Federal Constitutions. We reverse in part, vacate in part, and remand.
                                        I

      The pertinent facts are as follows. On November 11, 2014, at
approximately 3:40 a.m., a vehicle operated by the defendant struck another
vehicle while traveling on Hoit Road in Concord. Both vehicles were destroyed.
Both occupants of the other vehicle sustained serious injuries; one of the
occupants of the other vehicle suffered a stroke because of the accident and is
permanently disabled as a result.

      After the accident, police officers interviewed the defendant, who told
them that he had fallen asleep while driving. At the time, the defendant’s
pupils were constricted and he spoke very slowly; one officer trained in drug
recognition suspected that the defendant was under the influence of drugs.
During a subsequent interview at Concord Hospital, the defendant nodded off.
The defendant admitted using marijuana prior to the accident, and a blood
sample taken from him at the hospital tested positive for several drugs,
including Xanax and Suboxone.

       The State charged the defendant with two counts of aggravated DWI –
one count for the injuries sustained by each occupant of the vehicle that the
defendant hit. The State and the defendant agreed that the trial would be held
based upon an offer of proof, and that the trial court would render a decision
based upon that offer of proof. However, the defendant moved to dismiss one
of the two counts of aggravated DWI, arguing that the language of the statute
supported only one charge. The trial court rejected his motion to dismiss and
found him guilty on both counts. Relying upon State v. Bailey, the trial court
reasoned that RSA 265-A:3 suggests that the legislature intended that injury of
more than one person in a collision caused by an intoxicated driver could
result in multiple charges. See State v. Bailey, 127 N.H. 811, 814 (1956). This
appeal followed.

                                        II

       On appeal, the defendant asserts that the trial court’s interpretation of
RSA 265-A:3 is unfaithful to the text of the statute and its legislative history,
and violates the double jeopardy protections provided by the State and Federal
Constitutions. Conversely, the State argues that the trial court did not err by
interpreting RSA 265-A:3 to allow for multiple aggravated DWI charges based
solely upon the number of people injured. The State asserts that both the
plain text and legislative history of RSA 265-A:3 allow multiple counts of
aggravated DWI to be brought in the event that multiple individuals suffer
serious bodily injury in a vehicular collision caused by an intoxicated driver.

       Although both parties and the trial court frame their discussion
regarding the proper interpretation of RSA 265-A:3 in constitutional terms, we
find that their arguments implicitly subsume the narrower issue of whether the


                                        2
trial court erred in its statutory interpretation of RSA 265-A:3. See Sup. Ct. R.
16(3)(b) (“The statement of a question presented will be deemed to include every
subsidiary question fairly comprised therein.”). Thus, because we decide
constitutional questions only when necessary, see State v. Addison (Capital
Murder), 165 N.H. 381, 418 (2013), we first consider the statutory construction
issue.

       When the question before us is one of statutory construction, our review
is de novo. See State v. Thiel, 160 N.H. 462, 465 (2010). “In matters of
statutory interpretation, we are the final arbiter of the intent of the legislature
as expressed in the words of a statute considered as a whole.” Id. (quotation
omitted). “We first look to the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary meaning.” Id. “We
interpret legislative intent from the statute as written and will not consider
what the legislature might have said or add language that the legislature did
not see fit to include.” Id. (quotation omitted). Furthermore, “[w]e construe all
parts of a statute together to effectuate its overall purpose and avoid an absurd
or unjust result.” State v. Maxfield, 167 N.H. 677, 679 (2015) (quotation
omitted). “Finally, we interpret a statute in the context of the overall statutory
scheme and not in isolation.” Thiel, 160 N.H. at 465.

       RSA 265-A:3 sets forth three requirements for an aggravated DWI
offense: (1) driving or attempting to drive a vehicle upon a way; (2) while
intoxicated; and (3) fulfilling any one of the four alternative conditions listed in
RSA 265-A:3, I(a)-(d). These four alternatives are: (a) driving more than 30
miles per hour in excess of the speed limit; (b) causing a motor vehicle collision
that results in serious bodily injury to the driver or another; (c) attempting to
elude a law enforcement officer by increasing speed, extinguishing headlamps,
or abandoning the vehicle; and (d) carrying a passenger under the age of 16.
See RSA 265-A:3, I. Although we acknowledge that the issue is not completely
free from doubt, considering the terms and structure of the statute as a whole,
we conclude that the legislature intended the gravamen of the offense to be the
operation of a vehicle while intoxicated, and accordingly conclude that only a
single aggravated DWI charge arises from operating a vehicle on a particular
occasion. Our conclusion is based, in large measure, upon the incongruous
outcomes that would result were we to construe the statute in the manner
advocated by the State.

       For example, under the State’s view, an individual could face two
aggravated DWI charges for attempting to elude law enforcement officers by
increasing speed and then abandoning a vehicle, or by exceeding the speed
limit by more than 30 miles per hour twice within the span of a few moments.
Similarly, an intoxicated driver carrying four high school companions could
face four counts of aggravated DWI, even though he obviously drove the vehicle
only once. In the absence of a very clear indication to the contrary from
statutory text –– which we do not find in RSA 265-A:3 –– we will not presume


                                         3
that the legislature intended to impose such harsh and uneven consequences.
For these same reasons, we conclude that the legislature did not intend the
“unit of prosecution” under subsection I(b) of the statute to turn upon the
number of persons suffering serious bodily injury in a single collision resulting
from operation of a vehicle on a particular occasion.1

       We note that our interpretation of the statute does not restrict the State’s
ability to achieve an enhanced punishment in situations in which that may be
warranted. For example, in the circumstances presented here, it appears that,
in addition to the charge of aggravated DWI, the State may have had the option
of charging the defendant with a number of other offenses, including, perhaps,
second degree assault, see RSA 631:2 (2016); simple assault, see RSA 631:2-a
(2016); reckless driving, see RSA 265:79 (Supp. 2016); or vehicular assault, see
RSA 265:79-a (Supp. 2016). The defendant concedes that, at least with respect
to the foregoing assault offenses, the unit of prosecution is based upon each
individual who is harmed by the assaultive conduct.

      Of course, if the legislature disagrees with our decision today, it is free,
within constitutional limits, to change the law as it sees fit. See State v.
Carter, 167 N.H. 161, 170 (2014). Because we conclude that the trial court
erred in interpreting RSA 265-A:3, we need not reach the State’s or the
defendant’s constitutional arguments.

                                                 III

      For the above reasons, we reverse the defendant’s conviction on one of
the aggravated DWI indictments. We remand to the trial court with
instructions that it determine which conviction and sentence to vacate.

                                                              Reversed in part; vacated
                                                              in part; and remanded.

       DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred.




1 Because the issue is not before us, we have no need to consider whether multiple violations of
RSA 265-A:3, I(b) would occur if, during the course of operation of a vehicle, an intoxicated driver
were to cause two or more collisions, each of which resulted in serious bodily injury. For the
same reason, we express no opinion on whether there might be multiple violations of RSA 265-
A:3, I(a) in a situation in which, during an extended period of operation of a vehicle while
intoxicated, the driver repeatedly exceeds the prima facie speed limit by more than 30 miles per
hour or repeatedly takes steps to elude law enforcement.


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