dissenting: I first address the defendant’s State constitutional claims using case law from the United States Supreme Court only as an aid in my analysis. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983). The defendant maintains that a prosecution in superior court for operation by an habitual offender, RSA 262:23, after a prosecution and conviction in district court for operation after revocation, RSA 263:64 (Supp. 1985), violates the State Constitution’s prohibition against double jeopardy. He asserts that proof of operation as an habitual offender necessarily includes proof of operation after revocation.
In Heald v. Perrin, 123 N.H. 468, 473, 464 A.2d 275, 278 (1983), we stated that
“it is clear that. .. inquiry in [our double jeopardy cases] has centered on what evidence will be required at trial to prove the elements of the crimes. We therefore affirm as the benchmark of the double jeopardy test in this State an inquiry focusing on whether proof of the elements of the crimes as charged will in actuality require a difference in evidence.”
See State v. Gosselin, 117 N.H. 115, 117-18, 370 A.2d 264, 267 (1977) (under State “same-evidence” test for double jeopardy, two offenses not the same when proof of different elements necessary for conviction under each); State v. Smith, 98 N.H. 149, 150, 95 A.2d 789, 791 (1953) (under State “same-in-law-and-fact” test for double jeopardy, two offenses not the same when each requires proof of an element that the other does not); see also State v. Elbert, 128 N.H. 210, 212, 512 A.2d 1114, 1116 (1986). Thus, if different evidence is required to sustain each of the two charges, as they are charged, the double jeopardy clause of the State Constitution is not violated. We have specifically rejected the same transaction test in the double jeopardy context, and I see no reason to reconsider our position at this time. See Gosselin supra.
RSA 263:64 (Supp. 1985) provides in relevant part:
“No person shall drive a motor vehicle in this state after the director or the justice of any court has suspended or revoked his license to drive or after his driving privilege *623has been so suspended or revoked .... Any person who violates the provisions of this section shall be guilty of a misdemeanor.”
RSA 262:23 contains the following pertinent language:
“It shall be unlawful for [an habitual offender] to drive any motor vehicle on the ways of this state while the order of the court prohibiting such driving remains in effect. If any person found to be an habitual offender ... is thereafter convicted of driving a motor vehicle on the ways of this state while the order of the court prohibiting such driving is in effect, he shall ... be sentenced to imprisonment for not less than a year nor more than 5 years.”
The complaint charging the defendant with operation after revocation states that “the defendant did [operate] a motor vehicle . . . upon a public highway . . . after his license to do so had been revoked by the Director of Motor Vehicles.” The operation by an habitual offender indictment charged that the defendant “[d]id . . . operate a 1973 Datsun pickup . . . upon ... a public way, after his privileges to drive had been suspended as an habitual offender in the Grafton County Superior Court on September 18, 1978, said order still being in effect.” Different evidence was required to prove the offense as charged in each case. In proving that the defendant was guilty of driving after revocation or suspension in this case, the State had to establish that the director of the division of motor vehicles had revoked his license. By contrast, on the operation by an habitual offender charge, the State had to establish that a court had issued an order adjudicating him an habitual offender. Therefore, a difference in evidence was necessary to sustain the offenses as charged.
I would therefore hold that the defendant was not placed in jeopardy twice for the same offense, as that test has been applied in this State. The Federal Constitution does not dictate a different result. See Illinois v. Vitale, 447 U.S. 410, 419 (1980) (if manslaughter by automobile does not always entail proof of the offense of “failure to reduce speed,” then the two offenses are not the “same” under Blockburger v. United States, 284 U.S. 299, 304 (1932)). In this case, the State relied on revocation by the director in one prosecution while relying on a court order in the other. Thus, the two offenses were not statutorily identical in the Vitale sense, nor did they require the same proof.
As to the defendant’s argument that the language of RSA 262:23, II indicates a legislative intent to preclude conviction of both opera*624tion after revocation and operation by an habitual offender, I do not read the legislative language so broadly as my brothers: it merely states that the district court should determine .whether a person is an habitual offender before hearing on a charge of driving after revocation or suspension. Thus, the presumption allowing cumulation when two offenses under Blockburger are not the same has not been overcome. See Albernaz v. United States, 450 U.S. 333 (1981). I therefore conclude that no violation of our State double jeopardy clause has occurred and make no extended federal analysis, as the Federal Constitution provides the defendant no greater protection.