Criminal Negligence as Mens Rea for Unlawful Operation under RSA 263:64, V-a

Introduction

This commentary examines the Supreme Court of New Hampshire’s decision in State v. Warren, 2025 N.H. 21, where the Court addressed whether the felony of driving after suspension or revocation resulting in death (RSA 263:64, V-a) requires a mental state for the element of “unlawful operation.” Defendant Jessica Warren appealed her conviction, arguing that the trial court erred by not instructing the jury to apply a culpable mental state to the “unlawful operation” element. The State maintained that the statute’s omission of a mens rea precludes any requirement beyond proving the act. The Supreme Court resolved the dispute by holding that the “unlawful operation” element must be proven with a mens rea of criminal negligence, reversing and remanding for new jury instructions.

Summary of the Judgment

By a 4-0 majority, the Court concluded:

RSA 263:64, V-a does not specify a mental state for its “unlawful operation” element, but under RSA 626:2, I a felony requires proof of “purposely, knowingly, recklessly or negligently” as to each material element.
The presumption that a single mens rea applies to all elements (per RSA 626:2, I) is inapplicable when the defining statute omits any culpability requirement (as held in State v. Riendeau).
Evaluating the nature of the offense and policy considerations—especially the parallel with negligent homicide (RSA 630:3) and vehicular assault (RSA 265:79-a)—demonstrates that criminal negligence is the appropriate mental state for “unlawful operation.”
Because the trial court’s instructions omitted criminal negligence as to “unlawful operation,” the conviction must be reversed and the case remanded for an instruction that includes this mens rea element.

Analysis

Precedents Cited

RSA 626:2, I – Requires proof of a culpable mental state for each material element of a felony.
State v. Riendeau, 160 N.H. 288 (2010) – Held that when an offense‐defining statute omits a mens rea, RSA 626:2, I’s uniformity clause is inapplicable and mens rea is determined by offense nature and policy.
State v. Curran, 140 N.H. 530 (1995) – Defined elements and mens rea for misdemeanor driving-after-revocation under RSA 263:64, IV.
State v. Aldrich, 124 N.H. 43 (1983) – Confirmed that a felony conviction requires proof of some mens rea.
State v. Mandatory Poster Agency, 168 N.H. 287 (2015) – Warned against harsh statutory constructions absent clear legislative intent.
RSA 630:3 (negligent homicide) – Imposes criminal negligence for causing death.
RSA 265:79-a (vehicular assault) – Requires negligent operation for serious bodily injury or death.

Legal Reasoning

The Supreme Court applied a three‐step analysis:

Statutory Text and Scheme
Although RSA 263:64, V-a omits a mens rea for “unlawful operation,” felony offenses demand proof of a culpable mental state under RSA 626:2, I. Disregarding any mens rea here would elevate a driver’s maximum penalty sevenfold (from one year to seven years) without additional culpability beyond causing a death, a result disfavored absent clear legislative intent (Mandatory Poster Agency).
Precedent on Omitted Mens Rea
Following Riendeau, the Court rejected the notion that “knowingly” automatically applies to every element simply because it applies to license revocation. Instead, the mens rea must be tailored to the offense’s character and policy goals.
Comparison with Analogous Offenses
The Court compared RSA 263:64, V-a to:

Negligent Homicide (RSA 630:3) – A class B felony requiring criminal negligence to cause death.
Vehicular Assault (RSA 265:79-a) – A class A misdemeanor requiring negligent operation to cause serious bodily injury or death.

Because these statutes address similar harms and classes of offenses, importing criminal negligence into the “unlawful operation” element aligns RSA 263:64, V-a with the broader statutory scheme. By contrast, “knowingly” would impose a higher mens rea than negligent homicide and would conflict with the established misdemeanor threshold under vehicular assault.

Impact

This decision will have several practical and doctrinal effects:

Trial courts must instruct juries that to convict under RSA 263:64, V-a the State must prove criminal negligence as to the “unlawful operation” element.
Prosecutors will need to develop proof of negligent driving—such as failure to observe basic safety rules—beyond merely showing suspension status and a rule‐of‐the‐road violation.
Defendants will be able to challenge felony convictions where instructions omit or misstate the criminal‐negligence requirement.
The holding may guide interpretation of other offenses where the Legislature has omitted explicit mens rea language, reinforcing a functional approach that looks to comparable statutes and policy considerations.

Complex Concepts Simplified

“Unlawful Operation”: Driving in violation of a traffic rule (e.g., failing to yield to a bicycle); not merely driving on a suspended license.
Mens Rea Categories:
- Knowingly: Conscious awareness of one’s conduct and its likely consequences.
- Recklessly: Conscious disregard of a substantial and unjustifiable risk.
- Criminal Negligence: Failure to be aware of a substantial and unjustifiable risk that constitutes a deviation from the standard of care a reasonable person would observe.
Statutory “Omission” of Mens Rea: When a statute does not state a mental state, courts look to RSA 626:2, I and decide based on offense nature and policy rather than presume uniform mens rea across all elements.

Conclusion

State v. Warren establishes a new precedent that the “unlawful operation” element in the Class B felony of driving after suspension or revocation resulting in death (RSA 263:64, V-a) requires proof of criminal negligence. By aligning this element with negligent homicide and vehicular assault statutes, the Supreme Court of New Hampshire balanced legislative silence on mens rea with the policy goals of proportional punishment. Going forward, accurate jury instructions and proof of negligent driving will be essential to uphold convictions under this statute.