To be charged with aggravated DWI, you must be traveling more than 30 miles per hour faster than the posted speed limit, cause an accident resulting in bodily injury, attempt to elude police, have a BAC of greater than 0.16, or have a minor under the age of 16 in the vehicle with you.

In a recent case before the Supreme Court of New Hampshire, a defendant attempted to have the aggravated DWI conviction overturned. He was charged with aggravated DWI for being under the influence of alcohol and attempting to elude law enforcement. His argument was that the state failed to prove a scienter (intent) requirement – proof that the defendant purposefully evaded police. The Supreme Court upheld the conviction, however, and determined that scienter (intent) is not a requirement of aggravated DWI; in other words, the state does not have to prove that you intentionally evaded police or that you had a “culpable mindset.”

In addition to DWI and Aggravated DWI charges, you may also be charged with Felony Aggravated DWI if you have prior DWI convictions or subsequent offenses. If you are arrested for any DWI charge, you will be required to appear in court, where the state may decide to charge you with operating under the influence of alcohol and/or operating with an alcohol concentration at or over the legal limit. Minimum penalties for a DWI conviction include a fine of at least $500, a license suspension of at least nine months, and a required completion of an impaired driver intervention program.

Operating under the influence of alcohol and operating with an alcohol concentration at or over the legal limit are two different avenues by which the state can prove your guilt and gain a conviction. In one method, the prosecutor needs to prove beyond a reasonable doubt that you were operating a vehicle or an off-highway recreational vehicle (OHRV), that you were on a New Hampshire “way,” and that you were under the influence of an intoxicating substance.  While an alcohol concentration test can be introduced, it is NOT required to obtain a conviction.

The second way the prosecutor can obtain a conviction is by proving that you had an alcohol concentration at or above the legal limit.  If the prosecutor can prove that your alcohol concentration level was above the legal limit of 0.08 percent, he can obtain a conviction whether or not you were actually impaired by your consumption.  The way they prove this type of conviction is by means of a breathalyzer test administered during the traffic stop, or by a subsequent blood or urine analysis.

If you already have a DWI conviction, and you are driving on a probationary license, having an alcohol concentration above the legal limit is a “per se” offense, meaning the state does not have to prove that you were impaired; the test alone can serve as evidence of your guilt.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire's tough DWI/DUI laws.