What the State Must Prove to Convict You of OUI / DWI in New Hampshire
If you've been charged with Driving While Intoxicated (DWI), Operating Under the Influence (OUI), or aggravated DWI in New Hampshire, you're not alone. Although the statutes use the term “DWI,” many people (and even some officers) still refer to these charges as OUI or DUI. Regardless of the label, the law is found in RSA 265-A.In every criminal case, the State (prosecution) carries the burden of proving every single element of the offense beyond a reasonable doubt. If they fail to prove even one element, you cannot be convicted. Here's exactly what the State must prove in court for a conviction.
1. Standard DWI – RSA 265-A:2Under RSA 265-A:2, I, no person shall drive or attempt to drive a vehicle upon any way (or operate or attempt to operate an OHRV or boat) if they:(a) Are under the influence of:Intoxicating liquor, or
Any controlled drug, prescription drug, over-the-counter drug, or
Any other chemical substance (natural or synthetic) that impairs a person's ability to drive, or
Any combination of the above; OR
(b) Have an alcohol concentration of 0.08 or more (or 0.02 or more if under age 21).
The three core elements the State must prove beyond a reasonable doubt are:
You drove, attempted to drive, or were in actual physical control of a vehicle (or OHRV or boat) upon any way in New Hampshire;
On a “way” (essentially any public road, street, highway, or other place open to the public); and
You were either: Under the influence of intoxicating liquor/drugs/substances (impairment to any degree — even slight impairment is enough), or
Your blood/breath alcohol concentration met or exceeded the legal limit (the “per se” violation).
Important note on the first element: New Hampshire law requires the State to prove you were the one operating or in actual physical control of the vehicle. This is broader than just “driving while the car is moving.” It can include situations where the vehicle is parked or stationary (for example, keys in the ignition, engine running or off, music playing, etc.). However, the State must still prove you were the person who drove the vehicle to that location or were in actual physical control at the time officers observed you.In real-world cases, this element can be a strong defense. For instance, if police respond to a parked car with music playing and find someone in the driver's seat, the prosecution must prove that person was actually operating or in control of the vehicle — not just sitting there. If they cannot connect the defendant to the actual operation, the entire case can collapse.
2. Aggravated DWI – RSA 265-A:3
The State must prove all the elements of a standard DWI plus one of the following aggravating factors that existed at the time of driving/operation:
You were driving more than 30 mph over the posted speed limit;
You caused a collision resulting in serious bodily injury;
You attempted to elude a law enforcement officer;
You had a passenger under the age of 16; or
Your alcohol concentration was 0.16 or higher (double the legal limit).
Aggravated DWI carries much harsher mandatory penalties, including jail time.
The Burden of Proof: “Beyond a Reasonable Doubt"
This is the highest standard in the American legal system. The judge or jury must be firmly convinced of your guilt on every element. Any reasonable doubt on even one element requires a “not guilty” verdict. Why These Elements Matter for Your Defense
Every successful DWI defense focuses on attacking one or more of these required elements:
Was there lawful reasonable suspicion for the stop?
Did the State actually prove you were the operator or in actual physical control of the vehicle?
Was the field sobriety testing properly administered?
Was the breath or blood test result reliable and admissible?
Did the officer follow every procedural requirement under the implied consent law?
Key Authority & Official Sources (always cite these in court): NH RSA 265-A:2 – Driving or Operating Under the Influence
Ready to Fight Your New Hampshire DWI / OUI Charge?
At the Law Office of Joseph Kelly Levasseur PLLC we scrutinize every element of the State's case — from the traffic stop through the chemical test, with special attention to the “actual physical control” requirement. If you've been charged, don't wait. Contact us today for a confidential case evaluation.
Call (603) 622-7575 or visit josephkellylevasseur.com to schedule your free consultation.