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State v. Hull7/21/2003
Argued: May 8, 2003
The defendant, Gregg Hull, appeals his convictions for driving under the influence of liquor (DUI), third offense, see RSA 265:82 (Supp. 2002); RSA 265:82-b, II(b) (Supp. 2002), and felony reckless conduct, see RSA 631:3 (1996), following a jury trial in the Superior Court (Hicks, J.). On appeal, he argues that the trial court erred by: (1) denying his motion in limine to exclude his prior Massachusetts conviction for operating under the influence of intoxicating liquor (OUI); (2) denying his motion to dismiss the charges for insufficient evidence; (3) denying his motion to set aside the reckless conduct verdict because his car was not a deadly weapon; and (4) denying his motion to set aside the reckless conduct verdict on double jeopardy grounds. We affirm.
The jury could have found the following facts. While driving on the Charles Bancroft Highway on April 22, 2001, the defendant struck Litchfield Police Officer Paul Paquette, from behind, with the mirror of his Ford pickup truck. The contact occurred while the officer was issuing a speeding ticket to another driver. The other driver heard the defendant's truck hit the officer, saw the officer holding his shoulder as the truck tail lights passed, and heard the officer say he had been hit by the truck. The officer then called another unit to report he had been struck by a Ford pickup truck and pursued the truck to issue a citation.
Officer Paquette pulled the truck over approximately one mile from the spot where he had stopped the first driver for speeding. The officer told the defendant he had struck him with his truck and asked the defendant for his license and registration. The officer smelled a distinct odor of alcohol on the defendant's breath and noticed that he slurred his speech. When the officer asked the defendant how much he had to drink he replied that he had not been drinking. The officer then asked the defendant to perform field sobriety tests (FST), to which the defendant agreed.
By the time the defendant got out of the truck, Officer Dwyer had arrived. Both officers smelled alcohol on the defendant and observed that his eyes were red and bloodshot, his speech was slurred, he was unsteady on his feet, and he swayed as he tried to stand still. The defendant performed poorly on the walk-and-turn and the one-legged stand FSTs. Officer Paquette then read the defendant his administrative license suspension rights (ALS) and requested that he take a breathalyzer test. The defendant refused and Officer Paquette arrested him for drunk driving .
While Officer Paquette took the defendant to the station, Officer Dwyer stayed with the defendant's truck until the tow truck came. While he was waiting, he examined the passenger side mirror and found that it was pushed in toward the vehicle, had fresh scuff-marks and was missing the dirt that covered the rest of the truck.
The defendant had a 1999 DUI conviction in New Hampshire and a 1995 OUI conviction in Massachusetts. Prior to trial, the defendant moved in limine to exclude evidence of his OUI conviction in Massachusetts, arguing it was not a "reasonably equivalent offense" to the New Hampshire DUI offense. See RSA 265:82-b, II. The trial court denied the defendant's motion. At trial, the defendant moved to dismiss both indictments at the close of the State's case. The trial court denied this motion too, finding that the evidence on each charge was sufficient to be submitted to the jury. After trial, the jury returned a guilty verdict on each indictment, which the defendant moved to set aside for violating double jeopardy and for being based upon insufficient evidence. Once again, the trial court denied these motions
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