Criminal Negligence in New Hampshire

In 2009, the New Hampshire Supreme Court issued a major opinion in State of New Hampshire v. Shepard, reversing a a negligent homicide conviction. The Court in Shepard made clear that "not every act of carelessness that results in a death or serious bodily injury entails #criminal #negligence, however a person charged with criminal negligence may not be convicted on evidence that establishes only ordinary negligence."

In order to establish criminal negligence, the State must prove beyond a reasonable doubt that the defendant "failed to become aware of a substantial and unjustifiable risk that the material element [of the crime] exists or will result from his conduct" and "the risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable [law abiding] person would observe in the situation," In Shepard, the court found that because the evidence only established a two-second failure to keep his car in its lane prior to the deadly accident, and there was no evidence of speeding or impairment to any degree, the State, at best, only established civil negligence.

This was a big deal for the #criminaldefense bar in #NH. The door to argue ordinary negligence in criminal negligence cases seemed to be kicked wide open! But alas, in #criminallaw, any door opened by the Court is, usually, slowly pushed back close.

In 2013, four years after the Shepard opinion, the Court in State of New Hampshire v. Dion, held that the State established #criminalnegligence where the defendant was talking on their cell phone prior to striking the victim in a well-lit, newly painted crosswalk. While not illegal at the time, the Court reasoned that based on the evidence that the defendant had 13.5 seconds to observe the victim in the crosswalk, had an unobstructed view, it would have only taken 1.5 seconds to react upon seeing the victim, and there was no evidence of slowing down, braking, or swerving, criminal negligence was established. In other words, simply because talking on one's cell phone was not prohibited by law, the defendant's actions could still be criminally negligent.

Fast forward to September 2022, the Court addressed whether a father's failure to realize that his son left the family dog in a hot car, causing it to go into shock and be hospitalized, constituted criminal negligence. Here, the defendant's neighbor reported to the police that she saw that the defendant's dog had been in a car on a 90 degree day for 45-60 minutes and appeared to be in distress. After law enforcement rescued the animal from the hot car, they call the defendant and asked where his dog was, to which he replied "oh sh*t" and called to his son, who replied "I don't know." The defendant advised that the dog may still be in the car.

The defendant, concerned about his dog, told the officer that he was running errands, had his arms full, and asked his 8-year-old son to bring the dog in. At the trial, the defendant explained that they often take the dog with them on errands and his oldest son usually is responsible for taking the dog in and out of the car. After running errands, he put the groceries away, got distracted by his younger son, and then received an important phone call. He heard his older son come into the house during the call and assumed he brought the dog in. The defendant also explained that prior to running errands, he cooled down the car with the air conditioning because of the heat.

The defendant was charged with and convicted of negligent animal cruelty. On appeal, relying on Shepard, he argued there was insufficient evidence of criminal negligence. The Court, inexplicably to this criminal defense attorney, upheld the conviction and found that the evidence was sufficient to established criminal negligence. Namely, the Court found that even if the older son had reliably let the dog out of the car for a period of 8 months, his failure to supervise the child on this day constituted a gross deviation from reasonable care.

As if being a busy parent wasn't hard enough....

Practice Note: In Shepard, Dion, and now Butler, the Court places a major emphasis on time. The Court consistently reminds us that the negligent act in Shepard was a few seconds, whereas in Dion it was 13.5 second and in Butler an hour.