The opinion of the court was delivered by: Conboy, J.
Following a bench trial in the Lebanon District Court
(Cirone, J.), the defendant, Daniel C. Thompson, was convicted of driving while intoxicated (DWI), see RSA 265-A:2, I (Supp. 2012) (amended 2012), and was sentenced to enhanced penalties for a third offense. See RSA 265-A:18, IV(b) (Supp. 2012) (amended 2012). On appeal, he argues that the trial court erred in sentencing him for a third DWI offense because the State failed to submit evidence of his two prior convictions in its case-in-chief. We affirm.
The following facts are drawn from the record. The defendant was arrested and charged with DWI pursuant to RSA 265-A:2. The State's complaint alleged two prior DWI convictions. At the bench trial, the State did not enter evidence of the prior convictions in its case-in-chief. Ultimately, the court found the defendant guilty of DWI.
At sentencing, the State sought to admit evidence of the two prior convictions. The defendant objected, arguing that the State was required to submit evidence of the prior convictions during its case-in-chief. The trial court overruled the defendant's objection, accepted the evidence of the prior convictions, and sentenced him to enhanced penalties for a third DWI offense pursuant to RSA 265-A:18, IV(b).
On appeal, the defendant argues that RSA 265-A:18, IV requires the State to prove in its case-in-chief the existence of prior convictions upon which the State will rely to seek enhancement of the defendant's sentence for a subsequent DWI offense. Resolution of this issue requires that we engage in statutory interpretation. The interpretation of a statute is a question of law, which we review de novo. State v. Etienne, 163 N.H. 57, 71 (2011). In matters of statutory interpretation, we are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. State v. Langill, 157 N.H. 77, 84 (2008). When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. 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.
RSA 265-A:2, I, provides:
No person shall drive or attempt to drive a vehicle upon any way . . .
(a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or
(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.
The penalties for a conviction of an offense under RSA 265-A:2, I, are set forth under RSA 265-A:18. In relevant part, RSA 265-A:18, IV provides: "Upon conviction of any offense under RSA 265-A:2, I . . . , based on a complaint which alleged that the person has had one or more [certain] prior convictions . . . , the person shall be subject to [enhanced penalties]."
The defendant argues that the plain language of RSA 265-A:18, IV requires the State to prove prior convictions in its case-in-chief. He points to the express requirement that prior convictions be alleged in the complaint. He contends that once alleged, the legislature "clearly expects" the State to prove the prior convictions in its case-in-chief. We disagree.
There is no dispute that the State must prove all of the elements of an offense beyond a reasonable doubt. See RSA 625:10 (2007). However, "the United States Supreme Court [has] essentially held that a sentence enhancing statute based, in part, on prior convictions, is merely a penalty provision and does not create a separate crime or constitute a separate element of a crime." State v. McLellan, 146 N.H. 108, 113 (2001) (citing Almendarez-Torres v. United States, 523 U.S. 224, 228-48 (1998)). "The [DWI] statute requires proof of prior conviction not as an element of the present charge, but rather as a predicate condition for enhancement of the sentence upon conviction for the present offense." State v. Cardin, 129 N.H. 137, 138 (1987) (decided under prior law). Because prior convictions are sentencing factors and not elements of a subsequent DWI charge, the ...