concurring in part and dissenting in part: I concur with the result reached by the majority in Part II with regard to the admissibility of the defendant’s four prior DWI convictions under Rule 404(b) and in Part III regarding expert testimony. In my opinion, however, the trial court’s substitution of an alternate juror after the deliberations had begun does not warrant reversal. Therefore, I respectfully dissent from Part I of the majority opinion.
In this case, twelve people, each of whom heard all of the testimony, arguments, and jury instructions, returned a unanimous verdict of guilty. Despite this fact, the majority reverses an otherwise valid verdict on the sole ground that one of those twelve jurors participated in the deliberations in violation of RSA 500-A:13, IV.
I do not disagree with the majority’s conclusion that RSA 500-A:13, IV requires the trial court to dismiss alternate jurors after the case is submitted to the jury, or that the post-deliberation substitution of an alternate for an original juror should be construed to *321violate the statute. In my opinion, however, the majority errs by assuming that the legislature intended that the violation of RSA 500-A:13, IV requires the per se reversal of the jury verdict because a juror was substituted after deliberations had begun. As the majority concedes, RSA 500-A:13, IV is silent as to the remedy that should be imposed for the trial court’s failure to dismiss the alternates at the appropriate time. We should not assume by this silence that the legislature intended the automatic reversal of a criminal defendant’s conviction.
To merely assume that the remedy must result in per se reversal of the conviction is contrary to our own case law and to the treatment of this precise issue in other jurisdictions. In State v. Reynolds, 131 N.H. 291, 556 A.2d 298 (1988), we considered the legal effect of the violation of a statute that, like RSA 500-A:13, IV itself provided no remedy for its violation. In Reynolds, the State violated RSA 595-A:6 (current version at RSA 595-A-.6 (Supp. 1991)) by returning drugs that the defendant had stolen to the pharmacy owner before trial. On appeal, the defendant argued that by returning the evidence in violation of the statute, the State violated the due process clause of the New Hampshire Constitution and that because of those violations, the evidence should have been suppressed. After determining that there was no due process violation, Chief Justice Brock, writing for the court, concluded: “The defendant is not due any relief under RSA 595-A:6, either, because there has been no showing of prejudice that would warrant this court’s fashioning a remedy for violation of the statute.” Id. at 295, 556 A.2d at 300. By not providing a sanction for violation of RSA 500-A:13, IV the legislature intended either that none should apply or that, in accordance with Reynolds, the remedy should be fashioned by the courts on a case-by-case basis taking into consideration whatever prejudice the statutory violation caused the defendant. Applying the analysis in Reynolds, I would hold that the remedy in this case involves a showing of prejudice; the defendant’s conviction should not be reversed without a showing that the post-deliberation substitution was prejudicial.
Our requirement of prejudice in Reynolds is not unusual, even where important constitutional rights are at stake. In State v. Pond, 132 N.H. 472, 567 A.2d 992 (1989), we considered whether an indictment that incorrectly alleged more than one mens rea was constitutionally invalid. We unanimously declined to adopt a per se rule entitling the defendant to an automatic new trial. Id. at 477, 567 A.2d at 995-96. Instead, we required a showing of prejudice. Because the defendant did not allege or argue any prejudice resulting from the *322incorrect indictment, we denied his request for a new trial. Id. In State v. Nadeau, 126 N.H. 120, 124, 489 A.2d 623, 625 (1985), the defendant argued on appeal that his confession should not have been used at his trial because the prosecution did not comply with Superior Court Rule 98. Rule 98 requires that the prosecution furnish the defendant with a copy of his confession within five days after a plea of not guilty if the prosecution plans to use it against him. Although the violation of this rule involved important constitutional rights relating to confessions and the defendant’s ability to prepare his defense, we discouraged the technical application of court rules, noting that Rule 98 “provides no sanction for failure to comply with its terms.” Id. Thus, we unanimously held that the trial court has the discretion to waive the requirement of the rule if it determines that the defendant’s rights were properly protected. Id. at 124-25, 489 A.2d at 625-26.
Other courts have also required a showing of prejudice. In a case closely on point, the Supreme Court of Colorado construed a provision of their rules of criminal procedure that, like RSA 500-A:13, I\( mandated the discharge of alternate jurors when the jury retires to deliberate, as prohibiting the substitution of an alternate for a regular juror during deliberations. People v. Burnette, 775 P.2d 583, 587 (Colo. 1989). The Burnette court then determined the legal effect of such a substitution on the jury’s verdict. The court held that the recall of an alternate to replace a regular juror did not require a per se rule of mistrial, but instead raised a presumption of prejudice that could be overcome by a showing that the trial court used adequate procedural precautions to obviate the danger of prejudice. Id. at 587-88. The Burnette court cautioned that they did not intend to sanction a “clear deviation” from their rules of criminal procedure, but rather to acknowledge that many factual circumstances exist in which an unauthorized substitution may occur and that the presumption of prejudice may be rebutted. Id. at 591. The court, in fact, relied upon a harmless error analysis.
Like the Burnette court, I hesitate to sanction a deviation from procedural rules set forth by the legislature. When the legislature does not provide for a sanction, however, and instead relies on the courts to do so, the remedy we fashion should involve a consideration of prejudice suffered by the defendant. In some circumstances, of course, a defendant may be able to establish sufficient prejudice to require a new trial after a post-deliberation substitution, but the defendant here does not even allege that he suffered any prejudice. Moreover, under the facts of this case, even if we were to apply the *323standard in Burnette and presume that the post-deliberation substitution resulted in prejudice, the record shows that the extraordinary measures Judge Dalianis used to protect the defendant’s right to a jury of twelve individuals were more than sufficient to rebut such a presumption. See State v. Fennell, 128 N.H. 383, 384, 513 A.2d 363, 364 (1986) (trial court has broad discretion to resolve issues of possible juror prejudice at any time during course of trial); see also State v. Brodowski, 135 N.H. 197, 201-02, 600 A.2d 925, 927-28 (1991) (applying harmless error analysis to issue involving whether disqualified jurors sat on jury).
Before trial, the court impaneled fifteen jurors. The alternates were not chosen until after the court charged the jury, and thus all fifteen listened to the same evidence, arguments, and jury instructions. After the court randomly chose three alternates, the judge instructed the alternates to remain available throughout the deliberations and, at the request of the defendant, additionally instructed them to continue adhering to the court’s instructions regarding the media. After approximately three hours of deliberations, when the court learned that the forewoman had inadvertently discovered that the defendant was incarcerated, the court immediately removed the forewoman from the jury to protect the others from any taint and sent the rest of the jurors home for that day. The next day the judge conducted an extensive voir dire of the discharged juror to confirm that the forewoman had not shared any information with the other jurors. The court then conducted a voir dire of one of the alternates in the presence of both counsel, and only after determining that the alternate had not been exposed to media coverage or any outside influence did the court substitute the alternate for the disabled juror.
After recalling the remaining eleven jurors, the court informed the reconstituted jury that the forewoman had become disabled and could not continue the deliberations. The court told them that “[h]er reasons have nothing whatever to do with the deliberations or any person in the jury. They are completely personal to her, and have no bearing at all upon what you folks have yet to do or have already done.” The court then gave the following instruction:
“The important thing here, though, to ensure the integrity of this process, is that you are able to follow a very specific instruction. You are to disregard any of the missing juror’s opinions or observations or views as she may have expressed them. You are equally to disregard the tenor and direction of your conversations yesterday. You are to disre*324gard any preliminary opinions you may have reached, and you are ordered to proceed with this deliberation as though yesterday never existed. Of course, it’s a little hard to erase your minds, but in essence what you have to do with your new foreperson is go right to square one. Start from the beginning, include [the alternate] in your deliberations as you proceed.. . .
[W]e’re going to rely on your integrity in terms of going back and starting from scratch. If any one of you feels that you cannot do that, in other words that you have already formed an opinion that you can’t change, that you don’t feel you can realistically go back to the beginning, I’d like you to approach me about that through the Bailiff privately.”
This instruction to begin deliberations anew is the essential element necessary to ensure that all twelve jurors fully participate in arriving at a unanimous verdict, thereby satisfying the defendant’s constitutional right to a fair and impartial jury. See, e.g., People v. Collins, 17 Cal. 3d 687, 694, 552 P.2d 742, 746-47, 131 Cal. Rptr. 782, 786-87 (1976) (construing statute allowing juror substitution after commencement of jury deliberations); Commonwealth v. Haywood, 377 Mass. 755, 768-69, 388 N.E.2d 648, 656 (1979) (same). As a final precaution, the judge ordered the bailiff to collect any notes that the jurors had made during the previous morning’s three hours of deliberations. The reconstituted jury then deliberated for approximately six hours over the course of two days before returning a unanimous verdict of guilty.
To set aside a unanimous verdict of twelve jurors because a statute, that itself does not require such draconian measures, was violated absent any hint of prejudice to the defendant has in my opinion no basis in our case law, see Reynolds, 131 N.H. 291, 556 A.2d 298; Pond, 132 N.H. 472, 567 A.2d 992; Nadeau, 126 N.H. 120, 489 A.2d 623, or in the concept of efficient administration of justice. For these reasons, I respectfully dissent.