Scenario One: The essential elements of OUI conviction are 1) operating a vehicle, 2) on a public highway, 3) under the influence of drugs or alcohol). For Joe to be convicted under this statute, he must have been intoxicated and was “operat[ing] a vehicle.” There is no question that NH102 was a public highway for purposes of the statute. The vehicle portion of the statute is a key element to the OUI offense. The statute clearly states that a person must be operating a vehicle while intoxicated to be convicted of this crime. For purposes of the Motor Vehicle Laws, bicycles have the same rights and duties that apply to drivers of vehicles (N.H. Rev. Stat. § 265:143, 2015). Therefore, a bicycle is treated the same as a regular motor vehicle and Joe was driving a vehicle while intoxicated under the statute.
There was also sufficient probable cause for the police to suspect that Joe was intoxicated and to arrest Joe. Police have probably cause to make an arrest when the suspect displays evident signs of intoxication. New Hampshire courts have upheld probable cause when police noticed the defendant’s eyes were reed or glassy, or smelled an odor of alcohol (State v. Maga, 96 A.3d 934, p. 941). While Joe did not exhibit obvious of intoxication, it was the Fourth of July and police were on heightened alert for drunk drivers. The officer could have been suspicious because Joe was riding on the road late at night on the 4th, a holiday known for drinking and intoxication. In this situation, it is most likely that Joe’s conviction for OUI will be sustained.
Scenario Two: Jim’s case differs from Joe in that Jim was asleep in the back of a horse-drawn wagon. There are two issues to grapple with. The first is whether a horse-wagon is a vehicle subject to the Motor Vehicle Laws of the state. The second is whether Jim was operating a vehicle by sheer fact of being inside the vehicle while it was moving. Since a bicycle is considered a vehicle, it would seem that a horse-drawn wagon driving on public roads would also fall under the Motor Vehicle Laws of the state. The definition of vehicle provides that a vehicle is “every mechanical device in, upon or by which any person or property is or may be transported or drawn upon a way” (N.H. Rev. Stat § 259:122, 2015). A horse-drawn wagon fits into this definition because it acts to transport the individual.
The second question is whether a person can be deemed to “operate a vehicle” if the person is asleep, but intoxicated. In State v. Willard, the Court addressed this question. In Willard, the driver was intoxicated and had fallen asleep in the driver’s seat while the engine was idling (State v. Willard, 1995, p. 1087). The Court found that the word “operate” denotes physical control over the vehicle (State v. Willard, 1995, p. 1087). But unlike the Willard case which sustained a DUI conviction of the sleeping driver, Jim was not in the driver’s seat, but was in the back of the wagon. It is therefore unlikely that he will be found to have operated a vehicle within the statutory definition.
Scenario Three: The question raised in this case is whether Jane can be arrested on private property. The statute requires that the person be “on a state or local public right of way, or has open access to such right of way.” While McDonald’s drive-through is not a “state or local public right of way” like NH 102, Jane clearly had “open access to such a right of way.” Jane was arrested for intoxication as she was leaving the drive-through. The drive-through is right next to the public street, as customers exit the restaurant and get back on the main state or public highway. Because Jane had open access to the main road while she was in the McDonald’s drive-through, it is most likely that her arrest for OUI will be upheld.
References
Revised Statutes Annotated of the State of New Hampshire, N.H. Rev. Stat § 259:122
(2015). Retrieved from
http://www.gencourt.state.nh.us/rsa/html/XXI/259/259-122.htm
Revised Statutes Annotated of the State of New Hampshire, N.H. Rev. Stat. § 265:143
(2015). Retrieved from
http://www.gencourt.state.nh.us/rsa/html/xxi/265/265-143-a.htm
https://casetext.com/case/state-v-maga-3
http://www.leagle.com/decision/1995707139NH568_1611/STATE%20v.%20WI
LLARD
