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Elements of DUI in New Hampshire

New Hampshire’s main DUI statute is located in the New Hampshire Statutes, Title XXI, § 265-A:2 (hereinafter 265-A:2).  Under New Hampshire (NH) law, it is illegal to operate a traditional motor vehicle (car, truck, SUV, etc.), off-highway recreational vehicle (OHRV), snowmobile, or boat while a person is (1) under the influence of alcohol, controlled drug, or any combination of the two or (2) while an individual has an alcohol concentration of 0.08% or more.  For drivers who are under the age of 21, the law does not allow them to operate any of the above listed vehicles with a BAC of 0.02% or more.

Thus, in New Hampshire there are some facts that must be present for a driver to be convicted of a DUI.  First, the driver must: drive a motor vehicle, or; attempt to drive a motor vehicle, or; operate an OHRV, or; attempt to operate an OHRV.  Second, the driving or operating, or attempt to drive or operate, must be upon a “way” as defined by the NH statutes and NH courts.  Finally, the driver must be under the influence of intoxicating liquor or controlled drug.  The elements of boating under the influence are discussed in a separate section.

As § 265-A:2 is written, a driver does not have to have a BAC of 0.08% or more to be charged with a DUI.  In addition, the statute specifically states that a driver may not operate a motor vehicle or OHRV “upon any way.”  The New Hampshire statutes define “way” as “any public highway, street, avenue, road, alley, park or parkway, or any private way laid out under authority of statute.”  New Hampshire courts have read this statute to mean that any private park or way that is not laid out under authority of statute does not constitute a “way” within the meaning of the New Hampshire DUI statute.  However, if a “way” is technically private and not laid out under authority of statute, but has been used by the public for an extended period of time, there is a possibility that it would fall under the statutory definition of way.  An attorney who has experience dealing with New Hampshire DUI law should be familiar with these intricacies in New Hampshire law and should be consulted if this is an issue.

Other circumstances may affect the applicability of § 265-A:2.  For example, the driver’s age, past driving record, whether the driver is driving a commercial vehicle, and whether the driver is a citizen of NH are all circumstances that may affect the applicability of the statute as well as the penalties that may be imposed by NH courts.  Any driver that has been charged with a DUI in the state of New Hampshire should contact a DUI attorney who is familiar with the laws of NH.


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