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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2016-0698

THE STATE OF NEW HAMPSHIRE

v.

MEGHAN SAGE

Argued: October 12, 2017

Opinion Issued: February 9, 2018

Gordon J. MacDonald, attorney general (Scott Chase, attorney, on the 

brief and orally), for the State.

Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally), 

for the defendant.

LYNN, J. The defendant, Meghan Sage, appeals her conviction for 

driving under the influence (DUI), second offense, see RSA 265-A:2, I (2014); 

RSA 265-A:18, IV (2014), following a de novo jury trial in the Superior Court 

(Wageling, J.), see RSA 599:1 (Supp. 2016). On appeal, she argues that the 

trial court erred by: (1) denying her motion to suppress evidence derived from

expansion of the underlying traffic stop; (2) declining to exclude breathalyzer 

test results, or alternatively dismiss her charge, for an alleged violation of her 

due process rights under Part I, Article 19 of the New Hampshire Constitution; 

and (3) enhancing her sentence under RSA 265-A:18, IV based upon a 2008 
2

conviction from Maine for operating under the influence (OUI), see Me. Rev. 

Stat. Ann. tit. 29-A, § 2411 (Supp. 2007). We affirm. 

I

The following facts are taken from the trial court’s orders in this case. At 

approximately 5:00 a.m. on April 19, 2014, Trooper Ronchi of the New 

Hampshire State Police observed a vehicle traveling at 88 miles per hour in a 

65 mile-per-hour zone on Interstate 95. See RSA 265:60, II (2014). After giving 

pursuit, Ronchi caught up to the vehicle and observed that it had not slowed, 

but was now traveling at 91 miles per hour. Ronchi activated his emergency 

lights and the vehicle promptly pulled over.

Ronchi approached the vehicle and made contact with its operator and 

sole occupant, a female later identified as the defendant. While he spoke to the 

defendant, Ronchi detected the odor of alcohol emanating from her vehicle and 

observed that she had red, watery eyes. Ronchi requested the defendant’s

license and registration, which she produced without difficulty, and then 

inquired into her travels. Initially, the defendant explained that she was on her 

way from work to her boyfriend’s house in Connecticut. As the two continued 

to converse, however, the defendant altered her story, contending that she was 

on her way from home, not work.

Concerned that she might be impaired based upon the foregoing 

observations, Ronchi asked the defendant how much alcohol she had 

consumed prior to operating her vehicle. The defendant replied “none.” His 

concern remaining, Ronchi asked the defendant if she would be willing to 

perform field sobriety tests. The defendant agreed to do so and subsequently 

failed each test — horizontal gaze nystagmus, walk-and-turn, one-leg stand —

Ronchi administered. Ronchi thereafter placed the defendant under arrest for 

DUI and transported her to the Hampton police station for processing.

After arrival at the station and review of her rights under the

Administrative License Suspension form, the defendant consented to a breath 

test. Testing of her breath samples revealed a blood alcohol level of 0.12. 

Upon hearing the results, the defendant requested a blood test at least three 

separate times. Ronchi denied the requests, explaining to the defendant each 

time that his investigation was complete and he had no need to conduct further 

testing. Ronchi in turn provided the defendant with capture tubes containing 

her breath samples. See RSA 265-A:7 (2014) (amended 2016).

A bail commissioner subsequently arrived and released the defendant on 

$2,500 personal recognizance bail. The defendant was then offered several 

opportunities to use a telephone. When she was unsuccessful in arranging for 

someone to pick her up at the station, Ronchi placed the defendant in

protective custody due to her intoxication level and transported her to the 
3

Rockingham County House of Corrections. After being held in protective 

custody for 8 hours, during which she made additional telephone calls to

family members to no avail, the defendant was released from the house of 

corrections. She did not seek to have an independent blood test performed at 

any point thereafter. 

Following a bench trial, the circuit court found the defendant guilty of 

DUI. See RSA 265-A:2, I. The defendant then appealed to the superior court 

for a de novo jury trial. See RSA 599:1. Prior to trial, the defendant moved to 

suppress evidence obtained during the traffic stop, arguing that Ronchi 

unlawfully expanded the scope of the stop when he asked her to perform field 

sobriety tests. The defendant further moved to exclude the results of her 

breath test, or to dismiss the charge, arguing that Ronchi violated her due 

process rights by denying her the opportunity to obtain an independent blood 

test. See RSA 265-A:7 (2014) (amended 2016). The defendant also challenged

the State’s intent to use her prior OUI conviction from Maine for sentence

enhancement purposes, see RSA 265-A:2, I,:18, IV, asserting that Maine’s OUI 

offense was not “reasonably equivalent” to New Hampshire’s DUI offense under 

the elements-based approach to the determination established by this court in 

State v. Hull, 149 N.H. 706, 710 (2003). 

Following an evidentiary hearing, the trial court denied the defendant’s 

suppression motion in its entirety. With regard to the stop, the trial court 

found that Ronchi’s expansion of the stop was justified by a reasonable, 

articulable suspicion that the defendant was driving under the influence. As to 

testing, the trial court found that the police afforded the defendant the

opportunity to obtain an independent test by providing her access to a 

telephone, after which she made an inadequate effort to arrange for one. 

Accordingly, the trial court concluded that the defendant had failed to 

demonstrate a violation of her due process rights. 

The trial court also rejected the defendant’s challenge to the use of her 

Maine OUI conviction. Although acknowledging that the elements of the two 

offenses differ, the trial court determined that, pursuant to Hull, it could also 

consider the facts underlying the defendant’s Maine conviction in determining 

whether it was reasonably equivalent to a conviction for New Hampshire’s DUI 

offense. After review of the factual allegations in the underlying police records, 

the trial court found that the defendant’s conduct leading to her conviction for 

Maine’s OUI offense would have also sustained a conviction for New 

Hampshire’s DUI offense. Thus, the trial court concluded that the Maine OUI 

conviction was a “reasonably equivalent offense” for sentence enhancement 

purposes under RSA 265-A:18, IV. A jury later found the defendant guilty of 

DUI and the trial court sentenced her as a subsequent offender in accordance 

with its finding. This appeal followed.
4

II

The defendant first contends that, after stopping her for speeding, 

Ronchi unlawfully expanded the scope of the traffic stop when he asked her to 

step out of the vehicle to perform field sobriety tests. Accordingly, the 

defendant argues that the trial court erred in denying her motion to suppress

all evidence derived from this violation of her rights under the Fourth and 

Fourteenth Amendments to the United States Constitution and Part I, Article 

19 of the New Hampshire Constitution. Because the defendant has failed to 

demonstrate on appeal that she preserved her federal constitutional argument, 

see State v. DeCato, 156 N.H. 570, 573 (2007), we limit our review to her state 

constitutional argument and rely upon federal law merely to aid our analysis, 

see State v. Dewitt, 143 N.H. 24, 33 (1998); State v. Ball, 124 N.H. 226, 233 

(1983). “When reviewing a trial court’s order on a motion to suppress, we 

accept the trial court’s factual findings unless they lack support in the record 

or are clearly erroneous, and we review legal conclusions de novo.” State v. 

Blesdell-Moore, 166 N.H. 183, 187 (2014).

A traffic stop is a seizure for purposes of the State Constitution. Id. “The 

scope of such an investigative stop must be carefully tailored to its underlying 

justification, must be temporary, and last no longer than is necessary to 

effectuate the purpose of the stop.” Id. (quotation and brackets omitted). “The 

scope of a stop may be expanded to investigate other suspected illegal activity 

only if the officer has a reasonable and articulable suspicion that other 

criminal activity is afoot.” Id. (quotation omitted). “To determine the 

sufficiency of an officer’s suspicion, we evaluate the articulable facts in light of 

all surrounding circumstances, keeping in mind that a trained officer may 

make inferences and draw conclusions from conduct that may seem 

unremarkable to an untrained observer.” Id. at 188. Although we recognize 

that experienced officers’ perceptions are entitled to deference, this deference 

should not be blind. Id. The “articulable facts must lead to something specific 

and not simply a general sense that this is probably a bad person who may 

have committed some kind of crime.” Id. at 188-89 (quotation omitted).

In this case, we agree with the trial court that, based upon the following 

observations, Ronchi possessed a reasonable and articulable suspicion

sufficient to justify expanding the scope of the stop to investigate whether the 

defendant was driving under the influence: (1) the defendant’s inability to 

maintain a correct speed; (2) the odor of alcohol emanating from her vehicle; (3) 

her red and watery eyes; and (4) her inconsistent explanations regarding her 

travels. Consequently, Ronchi was permitted to ask the defendant a moderate 

number of questions to confirm or dispel this suspicion, see State v. Bell, 164 

N.H. 452, 455 (2012), and to administer field sobriety tests, see State v. 

Steeves, 158 N.H. 672, 677 (2009).
5

In arguing that the foregoing observations are insufficient to establish a 

reasonable suspicion, the defendant begins by asserting that most are readily 

attributable to a cause other than impairment — e.g., red and watery eyes may 

be attributable to fatigue. As we have previously recognized, however, “[t]hat 

observed activity could be consistent with both guilty and innocent behavior 

does not mean that an officer must rule out innocent explanations before 

proceeding.” State v. Galgay, 145 N.H. 100, 103 (2000); accord State v. 

Turmel, 150 N.H. 377, 381 (2003). Moreover, we do not consider each of 

Ronchi’s observations in isolation; rather, we consider them together and in

light of the reasonable inferences that an officer who is experienced in detecting

and investigating impaired drivers may draw. State v. Wallace, 146 N.H. 146, 

149-50 (2001). Thus, while the defendant’s inconsistent statements, vehicle 

speed, and red and watery eyes may seem innocuous in isolation, these 

observations must be considered together with the odor of alcohol emanating 

from her vehicle. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (“Any one 

of these factors is not by itself proof of any illegal conduct and is quite 

consistent with innocent travel. But we think taken together they amount to 

reasonable suspicion.”).

The defendant nevertheless contends that, even considering Ronchi’s

observations collectively, he did not observe other hallmark indicators of 

impairment, such as vehicle control issues or slurred speech. Thus, the 

defendant argues, it was not reasonable for Ronchi to “conclude” that she was 

impaired. Ronchi, however, did not need to “conclude” that the defendant was 

impaired in order to expand the scope of the stop. Rather, he needed to

possess a reasonable and articulable suspicion that she was. See State v. 

Sousa, 151 N.H. 297, 299 (2004) (recognizing that reasonable suspicion is a 

“less demanding standard than probable cause”); see also Sokolow, 490 U.S. at 

7 (recognizing that the level of suspicion necessary for an investigative 

detention “is considerably less than proof of wrongdoing by a preponderance of 

the evidence”). Although other indicators of impairment would have arguably

strengthened Ronchi’s reasonable and articulable suspicion, we do not believe 

that their absence acted to defeat it in this case.

Accordingly, because Ronchi’s expansion of the stop was justified by a 

reasonable, articulable suspicion that the defendant was driving under the 

influence, we conclude that the trial court did not err in denying the

defendant’s motion to suppress the evidence derived therefrom.

III

We next address the defendant’s argument that Ronchi violated her

statutory rights as well as her due process rights under Part I, Article 15 of the 

New Hampshire Constitution by failing to accommodate her request for an 

independent blood test. The defendant contends that, in light of these

violations, the trial court erred by not dismissing the charge, or, at the 
6

minimum, excluding her breath test results. We find no error in the trial 

court’s ruling.

As a preliminary matter, we reject the defendant’s position that it would 

be proper to evaluate her statutory claim by construing the implied consent 

statute in effect at the time of her arrest in 2014 with the 2016 amendments 

thereto. See, e.g., RSA 265-A:7 (Supp. 2016) (eff. Jan. 1, 2017) (requiring that 

when law enforcement ask a person to submit to a breath test they provide 

“contact information for individuals and the nearest facilities that make 

themselves available to draw and test blood”). Although we have recognized

“where a former statute is clarified by amendment, the amendment is strong 

evidence of the legislative intent concerning the original enactment,” Bovaird v. 

N.H. Dep’t of Admin. Servs., 166 N.H. 755, 763 (2014) (quotation omitted), 

such is not the case here. The 2016 amendments to the implied consent 

statute do not clarify the former version; they change it. Presumably out of 

consideration of the foregoing, the legislature did not give the amendments 

retroactive effect, but rather set January 1, 2017 as their effective date. See

State v. Carpentino, 166 N.H. 9, 15 (2014) (“We find it difficult to infer 

legislative intent that an amendment should apply retrospectively when the 

legislature set an effective date for that amendment nearly six months into the

future.”); see also 2 N.J. Singer & J.D. Shambie Singer, Statutes and Statutory 

Construction § 41:4, at 417-18 (7th ed. 2009) (“The presumption against 

applying a newly enacted statute retrospectively exists as a matter of fairness, 

so that people have opportunities to know what the law is and to conform their 

conduct accordingly.”). Accordingly, we limit our analysis of the defendant’s 

statutory claim to the version of the implied consent statute in effect at the 

time of her arrest. 

That version requires an officer, before administering any blood-alcohol 

test, to inform an arrested person of “his or her right to have an additional test 

or tests of his or her blood made by a person of his or her own choosing.” RSA 

265-A:8, I(a) (2014) (amended 2016); see RSA 265-A:4 (2014) (amended 2017). 

It further requires that the arrested person be afforded “an opportunity to 

request such additional test.” RSA 265-A:8, I(b) (2014). “The right to an 

additional test is not absolute, however, as ‘the failure or inability of an 

arrested person to obtain an additional test’ will not ‘preclude the admission of 

any test taken at the direction of a law enforcement officer.’” State v. Winslow, 

140 N.H. 319, 321 (1995) (brackets omitted) (quoting RSA 265:86 (repealed

2006), part of the implied consent law then in effect). 

“Though [DUI] defendants enjoy only a limited statutory right to an 

independent test, under the State Constitution some process is due individuals 

who seek to exercise this right.” Id. Indeed, “without the opportunity to 

request the additional test, the instruction about the right to have one would 

be valueless.” State v. Dunsmore, 112 N.H. 382, 385 (1972) (Grimes, J., 

dissenting) (discussing the implied consent law then in effect). Accordingly, 
7

“due process requires that a [DUI] defendant be afforded a meaningful 

opportunity to request an additional blood-alcohol test.” Winslow, 140 N.H. at

322. “Whether the State has so frustrated the defendant’s efforts as to deny 

him a meaningful opportunity will depend upon the circumstances of the case.” 

Id.

We find, as did the trial court, our decision in Winslow to be instructive

in the present case. In Winslow, a defendant arrested for driving while 

intoxicated, who had consented to a breath test while also requesting an 

independent blood test, was told he would be given the opportunity for the 

latter following completion of the former. Id. at 320. The defendant renewed

his request for a blood test following his breath test and, after booking him, the

police provided him with access to a telephone. Id. After he was unsuccessful 

in contacting someone to assist him in making bail and arranging 

transportation for a blood test, the defendant complained that the telephone 

permitted only collect calls. Id. He did not, however, request the police to

contact a physician on his behalf or inquire if transportation could be 

arranged, and he was transported to a county jail. Id. at 320-21.

The defendant appealed the trial court’s denial of his motion to suppress 

the results of the breath test, arguing that the police violated his due process 

rights by interfering with his efforts to obtain an independent blood test. Id. at 

321. In concluding that the trial court did not err, we observed that the 

defendant was informed of his statutory right to an independent test and 

provided with a meaningful opportunity to obtain one when the police provided 

him with a telephone. Id. at 322. Although noting that “access to a telephone 

may not satisfy the requirements of due process in all circumstances,” we 

further observed that the defendant did not explicitly ask for assistance after 

his unsuccessful calls and, therefore, he had failed to demonstrate that due 

process required further accommodation. Id.

Likewise, in this case, the record shows that the defendant was informed 

of her statutory right to an independent blood test and, after the defendant 

requested such a test, the police afforded her a meaningful opportunity to 

obtain one by providing several opportunities to use a telephone, both at the 

police station and at the house of corrections. In turn, also as in Winslow, 

there is no indication in the record that the defendant sought any further 

accommodation from the police following her unsuccessful calls, such as 

requesting assistance with arranging testing. Finally, we end by noting, as we 

did in Winslow, that the police provided the defendant with her breath test 

sample capture tubes. See RSA 265-A:7.

Accordingly, we conclude that the trial court did not err in finding no

violation of the defendant’s statutory or due process rights. In light of the 

foregoing, we need not address the defendant’s arguments regarding the proper 
8

remedy for a due process violation under the facts and circumstances of this 

case.

IV

We lastly address whether the trial court erred in sentencing the 

defendant as a subsequent offender pursuant to RSA 265-A:18, IV based upon 

her 2008 OUI conviction from Maine. 

In relevant part, RSA 265-A:18 provides that a person convicted of DUI 

shall be subject to enhanced penalties if, as alleged in the complaint, he or she 

“has had one or more prior convictions under RSA 265-A:2, I or RSA 265-A:3, 

or RSA 630:3, II, or under reasonably equivalent offenses in an out-of-state 

jurisdiction.” RSA 265-A:18, IV (emphasis added). In Hull, we were called 

upon to determine whether, for sentence enhancement purposes, a defendant’s 

prior conviction for Massachusetts’s OUI offense was “reasonably equivalent” to 

a conviction for New Hampshire’s DUI offense. Hull, 149 N.H. at 708-11 

(analyzing RSA 265:82-b (repealed 2006), part of the DUI statute then in effect). 

Recognizing that neither we nor the legislature had to that point defined what a 

“reasonably equivalent offense” was, id. at 709 (quotation omitted), we looked 

to other jurisdictions for guidance and observed the following: 

While the tests applied in other jurisdictions differ, one 

common factor is whether the evidence required to sustain a 

conviction for the out-of-state jurisdiction’s offense would 

necessarily sustain a conviction under the home state’s statute. If 

the answer to this question is “yes,” the offense is an “equivalent 

offense” for sentencing enhancement purposes. If the answer to 

this question is “no,” the offenses are not “equivalent.” The 

language of the elements of the statutes need not be identical, 

because the purpose of subsequent offender laws is to prohibit and 

punish a specific type of recurring conduct by imposing an 

enhanced sentence. The prior offense is not an additional element 

of the present charge. 

Id. at 710 (citations omitted). Finding it persuasive and consistent with a test 

then used by the department of safety in a different context, we applied this 

elements-based approach to the New Hampshire and Massachusetts offenses 

to determine whether they were reasonably equivalent. Id. 

The Massachusetts and New Hampshire offenses contained the same 

three elements, two of which were identical in language, with the only 

difference between the third being the phrases “operates a motor vehicle” under 

Massachusetts’s offense and “drive a vehicle” under New Hampshire’s offense. 

Id. at 710-11 (quotation omitted). As we had never previously drawn a 

distinction between the terms “operate” and “drive” under our DUI offense, we 
9

ultimately concluded that the two offenses were “reasonably equivalent” 

because the evidence required to sustain a conviction for OUI in Massachusetts 

would necessarily sustain a conviction for DUI in New Hampshire. Id. at 710-

11. 

Applying Hull’s elements-based approach to the present matter, in order 

to convict the defendant of OUI in Maine, the prosecution needed to prove 

beyond a reasonable doubt that she: (1) operated or attempted to operate a 

motor vehicle; (2) while under the influence of intoxicants or while having a 

blood-alcohol level of 0.08% or more. Me. Rev. Stat. Ann. tit. 29-A, § 2411, 1-

A(A) (Supp. 2007); see State v. Deschenes, 780 A.2d 295, 298 (Me. 2001) 

(construing a former version of Maine’s OUI statute). By contrast, the New 

Hampshire DUI statute under which the defendant was charged required the 

State to prove beyond a reasonable doubt that she: (1) drove or attempted to 

drive a vehicle; (2) upon any way; (3) while under the influence of intoxicating 

liquor or while having a blood alcohol level of 0.08% or more. See RSA 265-

A:2, I. 

Thus, New Hampshire’s DUI offense requires proof of an essential 

element that Maine’s OUI offense does not — the impaired driving must have 

occurred upon a “way.” Compare id. with Me. Rev. Stat. Ann. tit. 29-A, § 2411, 

1-A(A)). Our legislature has defined a “way” as follows: 

any public highway, street, avenue, road, alley, park, parking lot or 

parkway; any private way laid out under authority of statute; ways 

provided and maintained by public institutions to which state 

funds are appropriated for public use; any privately owned and 

maintained way open for public use; and any private parking lots, 

including parking lots and other out-of-door areas of commercial 

establishments which are generally maintained for the benefit of 

the public.

RSA 259:125, II (2014). The defendant argues that, in light of the foregoing, 

Hull compels the conclusion that the two offenses are not “reasonably 

equivalent.” That is, because New Hampshire’s DUI offense requires affirmative 

proof that the offense occurred on a “way,” while Maine’s OUI offense does not, 

the evidence required to sustain a conviction for Maine’s offense would not 

“necessarily sustain a conviction” for New Hampshire’s offense. See Hull, 149 

N.H. at 710. 

Acknowledging this result under a “narrow” application of Hull, the State 

points out that this would mean prior impaired-driving convictions from thirtyfour other states — including two other New England states (Rhode Island and 

Connecticut) — and the District of Columbia would not qualify for sentence 

enhancement under RSA 265-A:18. This is because, like Maine, these 

jurisdictions do not require affirmative proof that the impaired-driving offense 
10

occurred upon a “way.” See, e.g., Conn. Gen. Stat. Ann. § 14-227a (West Supp. 

2017); 31 R.I. Gen. Laws Ann. § 31-27-2 (West Supp. 2016). The State argues 

that drastically limiting the scope of sentence enhancement under RSA 265-

A:18 solely on this basis runs counter to the statute’s purpose of deterring and 

more harshly penalizing subsequent acts of driving under the influence in New 

Hampshire regardless of whether the prior act occurred in this state or 

another. Cf. Petition of Mooney, 160 N.H. 607, 612 (2010) (recognizing the 

“purpose of the [DUI] statutes is to prevent the operation of cars by persons 

under the influence of intoxicating liquor” and upholding an administrative 

rule effectuating this purpose by permitting imposition of additional conditions 

on license restoration for individuals with prior impaired-driving arrests 

(quoting State v. Goding, 126 N.H. 50, 52 (1985))). We are persuaded by the 

State’s argument.

When establishing and applying the elements-based approach in Hull, 

we did not have occasion to consider the significance of an element, such as 

the “way” element, which has, at most, only a tangential relationship to the 

harm the statute is designed to guard against. This was so because, like New 

Hampshire’s offense, Massachusetts’s OUI offense contains a “way” element. 

See Hull, 149 N.H. at 710-11; Mass Gen. Laws Ann. ch. 90, § 24(1)(a)(1) (West 

Supp. 2017). Though historically the definition of “way” applicable to our DUI 

statutes limited the prohibition against impaired driving to New Hampshire’s 

“public” highways or ways, see, e.g, State v. Tardiff, 117 N.H. 53, 56 (1977); 

State v. Rosier, 105 N.H. 6, 7-9 (1963); State v. Gallagher, 102 N.H. 335, 336 

(1959), its definition underwent a significant expansion in 1981. As part of the 

legislature’s larger effort to close “loopholes” and “get tough” on DUI, the 

definition was expanded to include “private ways among the areas upon which 

persons may be convicted of [DUI]” in our State. State v. Lathrop, 164 N.H. 

468, 470 (2012) (quotations omitted). The breadth of this expanded definition 

led us to conclude in State v. Lathrop that a marked private road in a lakeside 

community constituted a “way” because the road was ungated and, therefore, 

the public could access it even if unauthorized to do so:

Public safety requires that [DUI] statutes apply to any property to 

which the public has access. It would be contrary to legislative 

intent to construe the statute to provide that a private road in a

lakeside community that is used by residents, guests, and select 

invitees is a [DUI]-free zone.

Id.

Similarly, the breadth of the definition of “way” under our DUI statutes 

leads us to conclude that the element’s absence from an out-of-state 

jurisdiction’s impaired-driving offense does not, alone, render that offense 

nonequivalent to our own. Though there remain private driveways, paths, and 

roads in New Hampshire upon which an individual may drive while impaired 
11

with impunity, this State’s expansive definition of a “way” renders them few 

and far between. It therefore follows that there are also likely to be few, if any, 

instances in which an out-of-state impaired-driving conviction will stem from 

operation upon some type of “way” that does not fall within the scope of our 

definition. To permit these rare instances to prohibit sentence enhancement 

for prior impaired-driving convictions from the majority of out-of-state 

jurisdictions would be, in our opinion, to construe RSA 265-A:18 to require 

out-of-state jurisdictions’ offenses to be “identical,” and not simply “reasonably 

equivalent,” to our own. Consequently, we hold that, although it remains an 

essential element of proof for a conviction under our DUI offense, the “way” 

element is immaterial to the “reasonably equivalent offenses” determination 

under Hull. We do not agree with the dissent’s view that, in reaching this 

result, we are violating the principles of stare decisis. We remain committed to 

the elements-based approach to equivalency that we adopted in Hull. We 

merely recognize today a narrow exception to this approach for cases, such as 

this one, where the non-equivalent element has little, if any, bearing on the 

harmfulness of the conduct proscribed. 

Accordingly, turning to a comparison of the pertinent elements of the two 

offenses, it is apparent that the offenses of New Hampshire and Maine are 

“reasonably equivalent.” Compare RSA 265-A:2, I, with Me. Rev. Stat. Ann. tit. 

29-A, § 2411, 1-A(A). Specifically, because both offenses require proof that a 

defendant (1) drove/operated or attempted to drive/operate a motor vehicle (2) 

while under the influence of intoxicating alcohol and/or drugs or while having 

a blood alcohol level of 0.08%, the evidence required to sustain a conviction for 

Maine’s OUI offense would necessarily prove all elements of New Hampshire’s 

DUI offense other than the “upon a way” requirement. Cf. Hull, 149 N.H. at 

710-11. 

Thus, we conclude that the trial court did not err in sentencing the 

defendant as a subsequent offender pursuant to RSA 265-A:18, IV. In light of 

our holding in this case, we need not determine whether the trial court erred by 

considering the conduct underlying the defendant’s Maine OUI conviction when 

applying the Hull elements-based approach. But cf. Descamps v. U.S., 133 S. 

Ct. 2276, 2287-89 (2013) (discussing the rationale behind the establishment of 

an elements-centric, formal categorical approach — as opposed to a factspecific approach — to whether a prior conviction qualifies as one of the 

enumerated predicate offenses under the Armed Career Criminal Statute, 18 

U.S.C. § 924(e)).

Affirmed.

DALIANIS, C.J., and BASSETT and HANTZ MARCONI, JJ., concurred; 

HICKS, J., concurred in part and dissented in part.
12

HICKS, J., concurring in part and dissenting in part. Although I concur 

fully in Sections II and III of the majority’s opinion, I respectfully dissent from 

Section IV because I believe that principles of stare decisis require us to adhere 

to the elements-based approach adopted and applied in State v. Hull, 149 N.H. 

706, 708-11 (2003). I can appreciate the State’s concern that straightforward 

application of this approach, both presently and prospectively, would leave it 

incapable of seeking sentence enhancement penalties against DUI offenders 

with prior impaired-driving convictions from several out-of-state jurisdictions. 

I can also appreciate why the majority shares this concern and, therefore, 

elects to modify Hull to allay it.

The doctrine of stare decisis, however, “demands respect in a society 

governed by the rule of law, for when governing legal standards are open to 

revision in every case, deciding cases becomes a mere exercise of judicial will 

with arbitrary and unpredictable results.” State v. Quintero, 162 N.H. 526, 

532 (2011) (quotation omitted). “Indeed, principled application of stare decisis

requires a court to adhere even to poorly reasoned precedent in the absence of 

some special reason over and above the belief that a prior case was wrongly 

decided.” Id. at 539 (quotation omitted). We have identified four factors that 

this court must consider in determining whether precedent should be overruled 

or modified. See id. at 532-33. Neither the State in its brief, nor the majority 

in its well-reasoned analysis and conclusion in Section IV, addresses any of 

them. See State v. Blackmer, 149 N.H. 47, 49 (2003) (noting that we confine 

our review to issues that are fully briefed). 

Consequently, I would adhere to the elements-based approach delineated 

in Hull, vacate the defendant’s sentence because the evidence required to 

sustain a conviction under Maine’s OUI statute would not “necessarily sustain 

a conviction,” Hull, 149 N.H. at 710, under New Hampshire’s DUI statute, and 

remand to the trial court for resentencing.