State of New Hampshire v. Liakos4/3/1998
ly be included in the greater offense." State v. Hall, 133 N.H. 446, 448-49, 577 A.2d 1225, 1226 (1990) (quotation omitted); see State v. Constant, 135 N.H. 254, 256, 605 A.2d 206, 207 (1992). This occurs when "the proof necessary to establish the greater offense will of necessity establish every element of the lesser offense." Hall, 133 N.H. at 449, 577 A.2d at 1226 (quotation omitted). In determining whether an offense is a lesser-included one, we traditionally have looked to the statutory elements of the crimes charged. Constant, 135 N.H. at 256, 605 A.2d at 207. An offense is lesser-included if the elements of the lesser offense form a subset of the elements of the greater offense. Hall, 133 N.H. at 449, 577 A.2d at 1226.
As noted above, the negligent homicide (yellow line) offense requires proof of the element of negligence while the negligent homicide (valium) offense does not, and the latter requires proof of the element of "intoxication" while the former does not. Compare RSA 630:3, I with RSA 630:3, II. Therefore, based upon a comparison of the statutory elements, negligent homicide (yellow line) is not a lesser-included offense of negligent homicide (valium). Cf. Hall, 133 N.H. at 450, 577 A.2d at 1227. Even if we were to compare the elements of the crimes as charged, we would reach the same Conclusion. Cf. Constant, 135 N.H. at 256-57, 605 A.2d at 207-08. Accordingly, dismissal of the valium indictment does not bar retrial on the yellow line indictment.
III. Double Jeopardy -- Prior Administrative Proceeding
Finally, the defendant challenges retrial of the yellow line indictment on the grounds that his license was previously suspended in an administrative hearing, pursuant to RSA 263:56, I(g). The defendant contends that an administrative license suspension is punishment for purposes of double jeopardy, and that he may not be punished twice for the same offense. The defendant does not dispute that the legislature intended the license suspension process to be civil, not criminal , in nature. He argues, however, that because the license suspension is based upon criminal conduct, and the negligent homicide statute permits license revocation, see RSA 630:3, III (1996), the administrative suspension should be considered punitive.
We recently held in State v. Drewry, 141 N.H. 514, 687 A.2d 991 (1996), however, that a three-year license suspension, also imposed pursuant to RSA 263:56, I(g), is not "so punitive as to be considered punishment for double jeopardy purposes." Id. at 517, 687 A.2d at 994. The defendant's argument here is similar to the defendant's argument in Drewry. See id. at 516-17, 687 A.2d at 993-94. We remain unpersuaded that an administrative license suspension, pursuant to RSA 263:56, I(g), is so punitive as to be considered punishment, and therefore conclude that the suspension in this case does not implicate double jeopardy.
Affirmed and remanded.
All concurred.
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