No. 2020-0163

Supreme Court At-a-Glance Contributor Laura D. Devine, Civil Litigation Attorney, Boyle Shaughnessy Law, Manchester, NH

May 21, 2021

Affirmed and remanded.


  • Whether the State must prove, as an element of the offense charged, that the defendant’s license was suspended at the time she was arrested because of a prior DUI conviction


The record on appeal contained the following facts: The defendant was convicted of driving with a suspended license following a DUI conviction. Her license was suspended as a result of a twenty-year-old DUI conviction. She was convicted and sentenced to a mandatory seven-day incarceration.

During the prosecution for driving with a suspended license, first, the State filed a motion in limine to admit a certified copy of the case summary documenting the defendant’s 1997 DUI conviction and characterized it as “dispositive evidence” of the defendant’s conviction and sentencing on this charge. Later, the State altered its position and argued that the 1997 DUI conviction constitutes a sentencing factor, but not an element that must be proven beyond a reasonable doubt. The State argued alternatively that the 1997 certified case summary should be dispositive of the prior conviction unless the validity was contested by the defendant. The trial court denied the State’s motion in limine, and ruled that the certified case summary was inadmissible. Next, the State moved for reconsideration and the trial court held an in-chamber conference where the State orally moved for a continuance.

The trial court ruled on the outstanding motions at the final pre-trial hearing as follows: (1) it denied the State’s motion for reconsideration; (2) it ruled that the State must prove, as an element of operating after suspension that (a) the defendant was previously convicted of DUI, and (b) at the time of her arrest for operating after suspension, it was suspended because of that conviction; and (3) after reconsideration, it ruled that the certified case summary is admissible as non-dispositive evidence of the prior DUI conviction and revocation on that basis.

The Court noted that to be convicted of the misdemeanor driving after suspension or revocation the State was required to prove (1) the defendant’s license to drive had been suspended or revoked; (2) the defendant drove after suspension or revocation; and (3) that the defendant did so with knowledge of the suspension or revocation.

The Court held that to convict a defendant for misdemeanor operating after a suspension under RSA 263:64, the State must prove, beyond a reasonable doubt as an element of the offence that the defendant’s license was suspended because the defendant had violated one of the specifically enumerated sections of the statute. The Court observed that the State disclaimed and failed to preserve the remainder of its arguments challenging the evidentiary rulings, the Court affirmed the elements for a suspension and remanded the remainder of the evidentiary rulings.


Christopher Johnson, Chief Appellate Defender, Concord, for the defendant. Gordon MacDonald, attorney general (Elizabeth Woodcock, assistant attorney general) for the State.