Argued: April 11, 2017
A. Foster, attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the
Barnard, senior assistant appellate defender, of Concord, on
the brief and orally, for the defendant.
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
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.
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.
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.
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.
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 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.
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.
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