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Prosecution Unit
Midemeanor Complaints

  • How Complaints are Instituted
    • Must be signed under oath in front of Justice of the Peace by the Complainant.
    • Personal knowledge is not required. It can come from other officers.
    • Can be filed by anyone. RSA 592-A:7. "Any person may initiate a complaint against any other person, provided that they have probable cause to believe the other committed an offense."
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  • Where to file the Complaint
    • Filed in the District Court.
    • File the complaint in the District Court that has jurisdiction over the town where the offense occurred.
    • However, if there is a felony charge, any misdemeanor complaints are filed or transferred to the Superior Court.
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  • Whether to charge as a class A or class B misdemeanor
    • If you charge as a class A misdemeanor, the court will appoint counsel if the defendant so qualifies, which costs the state money. Thus, ask yourself, do you want suspended jail time or jail time. If so, then charge as a class A; otherwise, as a class B.
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  • Required Sufficiency of Complaints
    • Part 1, art. 15 of the NH constitution states that, "No person shall be held to answer for any crime or offense unless and until the same is fully and plainly, substantially and formally described to him." This means that the complaint must inform the defendant of the offense with which he is charged with sufficient specificity so that he knows what he must be prepared to meet and so that he is protected from being put in jeopardy once again for the same offense.” State v. Jernigean, 133 NH 396 (1990)
    • In Practice this means that the complaint must have the following:
      • All elements of the particular offense must be included.
      • Actus Rea: The physical acts that support the elements. In the body of the complaint, combine minimal facts with the elements of the offense. Example, for a DWI 1st, (impairment), you don’t need to put the vehicle’s registration or the type of vehicle. In the body of the complaint, just put that the defendant drove a vehicle on a specified way while impaired through alcohol, drugs, or both. Why is less more? Because a court may require you to prove facts that you allege in your complaint to prove your case, although the statute does not require those facts to sustain a guilty finding.
      • Surplusage: If you have unnecessary language in the complaint, you can motion the court to strike the excess language as being surplusage.
        • When describing the vehicle, you don’t need to state the registration.
      • Mens Rea (mental state). A mens rea is not needed for DWI offenses. A Mens Rea is needed for misdemeanors and felonies. The mens rea are as follows: negligently, recklessly, knowingly and purposefully. Negligence is easiest to prove and at the other end of the spectrum, purposely is the most difficult to prove. The statute usually tells you the required mens rea. If it gives you options, choose the least difficult mens rea to prove. If the statute is silent on mens rea, select knowingly.
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  • Duplicative Complaints
    Subject to the exceptions stated immediately below, a complaint can only charge one offense. Stated another way, a complaint can only allege one crime. If you make this mistake, you can move to amend the complaint, nol pros and file a new complaint or strike the duplicative crime as surplusage.
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  • Aggregation of Offenses
    In one complaint, for the offenses of theft, bad check and fraudulent use of a credit card, that are done pursuant to a single course of conduct, you can allege acts that are separated by time. This would also aggregate the theft amount which is relevant to whether it is a felony or not. State v. Hermsdorf, 135 NH 360 (1992).
    For sexual assault charges, you can allege a pattern of conduct if the evidence supports same. See RSA 632-A:2, III.
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  • Proceeding on Alternative Charges
    The State has a right to proceed on alternative charges if same would not prejudice the defendant. If you were to get convictions on both, then the judge or state would have to elect one of the convictions and the other would be dismissed. For example, on a DWI where there is a test over, the State could file two complaints – one for DWI impairment and one for testing over the legal limit. State v. Allison, 126 NH 111, 113 (1985).
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  • Time of the Offense
    • If time of the offense is not an element of the offense, you may charge "on or about …"
    • If you allege an improper time, it is not necessarily fatal to your case. Ask to strike as surplusage or amend.
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  • Lesser Included Offenses
    The State can ask the Court to find a defendant guilty of a lesser included offense if the State has issues with proving the more serious offense. The standard is as follows: First, the lesser offense must be embraced within the legal definition of the greater offense. This requires a comparison of the statutory elements of the offenses in question without reference to the evidence adduced at trial. Second, the evidence adduced at trial must provide a rational basis for a finding of guilt on the lesser offense rather than the greater offense.
    • A good example is a DWI impairment first being a lesser included of DWI 2nd impairment. Thus, for a DWI 2nd impairment, you don’t need to file an alternative complaint for DWI 1st, as the DWI 1st is a lesser included of the DWI 2nd.
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  • Amendments to the Complaint
    • Complaints may be amended at any time prior to verdict, if no additional or different offense is charged as a result and if the defendant is not prejudiced. Dist. Ct. R. 2.1 and State v. Crockett, 116 NH 324 (1976).
    • Motions to amend can be made in writing or orally. Know your court.
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  • Practice Notes
    • Operating after suspension subsequent: mens rea is knowingly.
    • DWI: No mens rea required.
    • DWI: Don’t forget to allege way and specify the road and town in the complaint.
    • DWI per se: you don’t need to allege the exact BAC – use a .08 or .16 and above.
    • DWI per se: don’t allege in the complaint that it is a blood or breath test, just that it is over the legal limit.
    • You don’t need to write in the complaint the vehicle’s registration.
    • You don’t need to file DWI 1st as a lesser included offense to a DWI 2nd, as the first is a lesser included of the 2nd.
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  • Sample Complaints
    Sample complaints Microsoft Word Symbol have been provided in Microsoft Word format. Save documents to local computer before completing.
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Microsoft Word Symbol Microsoft Word format. Here is a list of apps that can open Word files.

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