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Compendium
Superior Court Cases

administrative hearings roomIssues Involving Refusal to Take Chemical Test
  1. Informing of ALS Rights
  2. Choice of Test/Discretion of Law Enforcement
  3. Recantation of Refusal
  4. Right to Counsel
  5. Deemed Refusal
  6. Miscellaneous
I. Informing of ALS Rights
Oldman v. Director, 226-2011-CV-00758, (Colburn, 4/6/12), AFFIRMED
After DWI arrest, officer read Miranda rights in cruiser. Petitioner waived rights and agreed to speak. Thereafter, at police station, ALS read and Petitioner requested an attorney. Officer informed him that he was not entitled to attorney for ALS. Petitioner stated that he was not taking or refusing the breath test. Officer deemed refusal. Argued that it was error to read Miranda before ALS and that the refusal was invalid due to confusion. Also argued that reading Miranda before ALS violated due process rights. Court declined to apply confusion doctrine as part of implied consent law as some other states have. Doctrine requires police to inform person that there is no right to counsel before deciding whether to take chemical test. Plain meaning of statute does not require refusal to be knowing or intelligent. No due process violation because officer read ALS form, and therefore, his conduct was not fundamentally unfair.
Robicheau v. Dept. of Safety, 226-2011-CV-00592, (Nicolosi, 1/6/12), AFFIRMED
ALS refusal. In cruiser after arrest, officer read Miranda and ALS form. Not told right to counsel did not apply to ALS decision. No request for lawyer or clarification of rights. Alleged due process violation and confusion by reading Miranda rights before ALS. H.E. placed weight on failure to testify that he was confused. Court held it unnecessary to apply confusion doctrine of some other states as it relates to implied consent statutes. Since most states require test subject to exhibit actual confusion, and Petitioner did not, confusion may not be presumed. No confusion alleged at time of refusal or by testimony at hearing. No due process right to be informed that he was not entitled to counsel for purposes of ALS after Miranda rights read. Therefore, refusal valid under both IC statute and due process clause.
Edwards v. DMV, 216-2011-CV-00604, (Abramson, 11/2/11), AFFIRMED
ALS refusal. Argued that refusal invalid due to Petitioner's misunderstanding of consequences of refusal. Police report ambiguous as to this assertion. Argued that due to ambiguity, Hearings Examiner should have accepted Petitioner's version of events and held misinformation given. Court held that Petitioner had not overcome presumption that all questions of fact and rulings of law reasonable and lawful.
Halberg v. Beecher, 212-2009-CV-00208, (Houran, 4/26/10), AFFIRMED
ALS refusal. Petitioner argued that she was misinformed of her ALS rights concerning the consequences of refusing where the officer read the form while she was handcuffed in the cruiser and where the form was not read a second time at the hospital or a copy provided to her before the refusal. The Court held that the officer properly advised the Petitioner of the consequences of refusing the blood test because he informed her that her license would be suspended if she refused. Reading the form once was sufficient in this case.
Praire v. Director, 09-E-0258, (Smukler, 11/3/09), AFFIRMED
ALS refusal. Petitioner challenged finding of refusal. Court upheld as consistent with the evidence and applicable law. Petitioner argued that he was deemed refusal for refusing to sign form. Officer had read entire form and referenced the back.
Budhiraja v. Beecher, 08-E-0293, (Vaughan, 03/05/09), AFFIRMED
Officer read Petitioner ALS form. A second officer gave the Petitioner incorrect information regarding the length of suspension. Appeal alleged that Hearings Examiner ignored that evidence in reaching decision. Court disagreed and held that Hearings Examiner properly found that arresting officer read the ALS form and that Petitioner never stated that he did not understand English, or understand the ALS rights. Collateral estoppel did not apply due to civil nature of ALS hearing. Subsequent dismissal of criminal charge in District Court inapplicable to ALS hearing. Evidence sufficient to constitute reasonable grounds.
Coutermarsh v. Beecher, 07-E-0083 (Grafton, Vaughan, 10/16/07) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. The Petitioner asserted that the officer's failure to properly advise about testing again at the police station was fatal to the suspension. The Court found the record supported the HE's determination that the Petitioner's decision [not to take a test] was not influenced by the officer's advisement of rights and the officer had read the entire ALS form to the Petitioner. See also Part 9 Section I (Cert/Intox Accuracy) and Part 7 Section I (Probable Cause)
Themelis v. Beecher, 07-E-0446,(N. Hills, Barry, 01/17/08) AFFIRMED
Arrested for DWI, consented to testing, and the breath test showed 0.03. A DRE was requested at which point Petitioner refused any and all testing. Petitioner alleged the record contained insufficient evidence to show that the operation, that the officer doing tests was not fully trained, and that the Hearings Examiner refused to find that he did not refuse the DRE testing. In a short opinion, the Court ruled there was sufficient evidence to support the Hearings Examiner's findings and warrant the license suspension.
Trost v. Beecher, 07-E-0216,(N.Hills, McGuire, 11/28/07) REVERSED
Arrested for DWI, consented to esting, and the breath test showed 0.00. A DRE requested further tests at which point Petitioner refused any more testing. Petitioner alleged the record contained insufficient evidence to show that he refused the DRE testing. The Court ruled there was insufficient evidence to support the Hearings Examiner's finding of refusal of the blood test, but did rule there was sufficient evidence to support reasonable grounds to believe DWI. The hearing examiner found (in his report) reasonable grounds to believe DWI alcohol, but not drugs (marijuana). Court went on to rule that even though initial grounds were reasonable, he does not have unfettered discretion to continue the detention for further testing. Court ruled that the requirement of reasonable grounds is continuous and on-going. This case was not affirmed because, even though there was testimony about marijuana at the hearing, the Hearings Examiner made no finding of DWI drugs.
Newell v. Beecher, 06-E-0570 (Rock, Lewis, 01/24/07) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged officer made a misstatement at the arrest scene about the length license would be suspended and Hearings Examiner erred by failing to make such a finding. Court noted that Petitioner did not present evidence at the hearing. Court found evidence of record supported the finding. The officer insisted that no misstatement was made on redirect and that he read the ALS form. The Hearings Examiner credited the officer's testimony. See also Part 7. Section I (Probable Cause Factors)
Kobos v. Beecher, 06-E-044,(Belknap, Smukler, 06/02/06) AFFIRMED
Arrested for DWI, consented to testing, and transported to the hospital; at which point Petitioner refused any and all testing and refused to sign the ALS form. Petitioner alleged the record contained insufficient evidence to show that the officer fully informed him of the consequences of refusing to take a test, and argued the decision to uphold his license suspension was unreasonable and unlawful. Court found that determining credibility of conflicting testimony at hearing is up to the Hearings Examiner. Court ruled there was sufficient evidence to support the Hearings Examiner's findings and warrant the license suspension.
Mros v. Beecher, 05-E-703,(Rock, McHugh, 03/30/06) AFFIRMED
Underage Petitioner arrested for DWI and took the test. He appealed alleging he was not properly informed of his ALS advice. He asked how long his license would be suspended and was informed that the DMV would decide how long his license would be suspended. He submitted to a breath test that registered 0.15. Court found that the advice was not technically correct, but reviewed and referred to statute RSA 265:91-a. The court went on to say that because of the wording of the statute, Petitioner had no cause to complain. He would have been suspended for six months whether he took the test or not. (Affirmed by NH Supreme Court).
Knapton v. Beecher, 05-E-350, (ND Hills, Abramson, 12/22/05) AFFIRMED
Underage Petitioner appealed alleging he was not properly informed of statutory advice for PBT test. He submitted to a PBT that registered 0.045 and was arrested even though he had passed field tests. Court reviewed whether statute had an exclusionary rule for non-compliance, compared it to RSA 265:87 and found it did not. Court found that he had not been informed, but found decision was neither unreasonable nor unlawful. (See Section 07 on Probable cause for underage person)
Taylor v. Beecher, 05-E-251,(Rock, Nadeau,08/29/05) AFFIRMED
Arrested for DWI, advised of ALS rights, refused test;Petitioner lost control of vehicle and involved in accident; admitted to three drinks; eyes were blood-shot, and had strong odor of alcohol, unsteady on her feet; claimed she did not knowingly and intelligently refuse and did not understand her rights. COURT held: Considering the context of the officer's conversations and interaction with her Petitioner "was adequately informed of her rights and "finds that the evidence supports amply the Examiner's findings." (See also sufficiency of evidence Section 07)
Masessa v. Beecher, 05-E-332, (Grafton, Vaughn, 02/06/06) AFFIRMED
Arrested for Driving While Intoxicated; Petitioner claimed that Respondent erred by admitting the PBT results because the statutory warning was not given; Court held that PBT results are admissible. Hearings Examiner credited the testimony of the officer that was uncontradicted. That evidence was sufficient to support the findings. On the second issue, the Court rejected Petitioner's argument that the Hamilton v. Turner case applies to PBT tests and found it distinguishable because it dealt with the Intox 5000 instrument.
Ellis v. Beecher, 05-E-168, (Belknap, Smukler, 01/09/06) VACATED
Arrested for DWI; Petitioner claims he was not properly informed of the consequences of his refusal. The officer failed to correct Petitioner's statement " that his license would be suspended for six months even though he learned of the previous conviction some time later, but before Petitioner was bailed. Even though there was no problem with the reading of the ALS form, the court concluded "…that this case was like the Just decision. Petitioner had met his burden of showing the decision was legally erroneous."
Edes v. Beecher , 05-E-261 (Merr, Fitzgerald, 10/27/05) AFFIRMED
Petitioner appealed, alleging it was error for Hearings Examiner to determine that the police officer had adequately informed him of the consequences of refusing to submit to a breath test. The officer read both sides of the ALS form to Petitioner and instructed Petitioner to read it to himself. He also told him that the law had changed and the officer was unsure whether the form had been updated or whether the administrative penalties had changed. The Court found that the test was whether the information given was accurate, not whether the officer expressed uncertainty.
Holmes v. Beecher, 05-E-0074( Belknap, Mohl, 7/29/05) AFFIRMED
Petitioner arrested for DWI, but refused test. He appealed and alleged the valid refusal finding was an error because, in spite of evidence at the hearing, the Hearings Examiner did not make a written finding on his capacity to understand the information given to him. He and his wife testified to evidence of mental problems. Court ruled that evidence was also consistent with intoxication and it was not unlawful or unreasonable for examiner to discount Petitioner's evidence.
Proulx v. Beecher, 05-E-003,(S. Hillsborough,Hicks,05/16/05) AFFIRMED
Arrested for DWI; Petitioner claims he was not properly advised of the consequences of his refusal. The officer advised Petitioner that " his license could be suspended by the state " if he refused the test; the officer read the DSMV426 Petitioner correctly and Petitioner advised him that he understood. The court concluded "…that this was sufficient even though there had been incorrect advice initially. Petitioner was appropriately informed of his ALS rights."
McCrea v. Beecher, 05-E-011, (Belknap, Smukler, 05/04/05) AFFIRMED
Arrested for Boating While Intoxicated; Petitioner claimed that Respondent erred by admitting the PBT results because the statutory warning was not given and because there was no evidence of proper PBT certification. Court held that PBT results are admissible even without proper advice because its probative value was aimed at reasonable grounds. On the second issue, contrary to Petitioner's assertions the record showed the PBT had been calibrated and certified. (See also Part 5, Jurisdictional Issues In ALS)
Morris v. Beecher, 05-E-005, (Belknap, Smukler, 03/29/05) AFFIRMED
Arrested for Boating While Intoxicated; Petitioner claimed that Respondent erred by admitting the PBT results because the statutory warning was not given; Court held that PBT results are admissible. Hearings Examiner credited the testimony of the officers over that of the Petitioner. That evidence was sufficient to support findings that were not unreasonable or unlawful. On the second issue, 23-day delay in filing the examiner's report, there was no prejudice demonstrated to Petitioner. (See also Part 10, Procedural Issues In ALS)
Thompson v. Beecher,04-E-575, (Rock, Morrill, 03/03/05) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; petitioner combative and uncooperative throughout the arrest and booking process; petitioner refused to sign the acknowledgement; DEEMED a refusal; court held that " … Officer Bentz testified that he notified the petitioner of his rights and the documents support this: This uncontradicted evidence is sufficient to support the hearing examiner's finding that the petitioner was advised of his rights ". (See also Part V, Deemed Refusal)
Stetson v. Beecher,04-E-274,(Merrimack,Fitzgerald,12/01/04) REVERSED
Arrested for DWI; advised of ALS rights; failed FST's; Petitioner submitted to PBT; .0196; and refused a second breath test; suspended for 2 years. Petitioner appeals that the officer never advised her that she could be subject to further testing after the PBT in violation RSA 265:92-a. DEEMED A REFUSAL. Court finds that Trooper…was required by RSA 265:92-a to inform the Petitioner about taking the PBT, and how it would impact any further testing, and he did not warn her." "The Petitioner failed to submit to a second test because she had been denied a statutory right and should not be punished for her lack of understanding as to the testing requirements." (See also Deemed Refusal; Section 8, Part 5)
Wright v. Beecher, 04-E-198,(Graf, Houran, 10/20/04) AFFIRMED
Arrested for DWI; Petitioner claims he was not fully informed of his length of suspension and the consequences of his refusal violating his statutory requirement that he be informed of the consequences of his refusal and constitutional requirements of due process. COURT held: "The State is not required to inform operators that they may face criminal charges based upon the results of a blood alcohol test; and, that for refusing to take a blood test the suspension would not run concurrently with any other penalty imposed under motor vehicle laws. AFFIRMED
Maville v. DMV, 04-E-105,(Graf,Burling,08/30/04) AFFIRMED
Arrested for DWI, advised of ALS rights, refused test; Petitioner involved in accident; eyes were blood-shot, speech slurred and had odor of alcohol; Petitioner was treated for small abrasions; claimed he was confused and did not understand his rights. COURT held: Petitioner "was adequately informed of his ALS rights in accordance with RSA 265:87,I,(a)-(c), and "finds that the evidence supports amply the Examiner's findings."
Flynn v. Beecher, 04-E-101, (Belknap, Perkins,08/16/04) REVERSED
Arrested for DWI; Petitioner claims he was misinformed of the consequences for a refusal and that he was deemed a refusal because the Trooper opined that he was stalling. HELD: "There was absolutely no evidence before the Hearings Examiner as to whether Mr. Flynn's refusal was based on confusion about the consequences of refusal. For the Hearings Examiner to have concluded …that the improper advice had nothing to do with Mr. Fynn's refusal and that the refusal was based solely on a decision by Mr. Flynn to stall is clearly unreasonable." Accordingly, …the decision is REVERSED.
Peterson v. Beecher, 04-E-096, (Belknap, Perkins, 07/15/04) AFFIRMED
Arrested for DWI; fld FST's; refused breath test; Petitioner claimed he was not read his ALS rights prior to FST's and that the evidence of the FST's should not have been considered during the hearing by the Hearings Examiner in making his final determination. HELD: "Whether the evidence of the physical testing was impermissibly admitted under RSA 265:87 II does not, in and of itself, make the hearing officer's decision unreasonable or unlawful … the court finds that admission of this evidence would result in a harmless error."
Gellatly v. Beecher, 04-E-037, (Merrimack, Fitzgerald, 07/06/04) AFFIRMED
Arrested for DWI, failed FST's, refused to submit to breath test. Petitioner claimed the officer misinformed him of the consequences of refusing to take the test and that he refused … as a result of this misinformation. HELD: "The language of the statute is clear in that it only requires that the law enforcement officer inform Petitioner of his rights. There is no requirement that the Petitioner must understand them. Petitioner has not sustained his burden of demonstrating that the decision of the Hearings Examiner was unlawful or unreasonable. (NOTE: cross-reference to Section 4, Anonymous Information.)
Davidovich v. Beecher, 04-E-93, (Rockingham, Coffey, 05/27/04) AFFIRMED
Arrested for DWI; Petitioner challenged the fact that he refused testing and that he was notified of his ALS rights; Petitioner signed the ALS form. "The form requires 2 signatures, .indicating that he had been informed of his rights and that he refused the requesting testing. HELD: … the evidence was sufficient to allow the Hearings Examiner to lawfully and reasonably conclude that (1) Petitioner refused a chemical test and (2) Petitioner was notified of his right to have a person of his choosing administer a similar test … Petitioner has failed to meet his burden on appeal. AFFIRMED
Hohen v. Beecher, 03-E-179, (Belknap, Smukler, 4/23/04) AFFIRMED
Arrested for DWI; Petitioner claims she was confused by the failure to provide oral notice before a preliminary breath test as required by RSA 265:92-a. Hearings Examiner found that the Petitioner's confusion was not credible under the circumstances of this case. Court held: "Here, the record contains sufficient evidence to support the examiner's findings."
Poudrier v. Beecher, 03-E-454, (Merrimack, Lynn, 04/12/04) AFFIRMED
Arrested for DWI; Petitioner claims he was not properly informed of his ALS rights and that he did not understand the consequences of a refusal. Court held: Petitioner failed to sustain his burden of proving that the decision of the Hearings Examiner was clearly unreasonable or unlawful.
Prue v. Beecher, 03-E-419, (Rockingham, Abramson, 09/30/03) AFFIRMED
Involved in a motorcycle accident; transported to the hospital; Petitioner refused to submit to a blood test; arrested for DWI; informed of ALS rights; Petitioner challenged the fact that he did not understand his rights; Emergency Room personnel told the Officer Petitioner was aware of his rights and could follow instructions; officer stated Petitioner did not appear disoriented. Court held: the evidence was sufficient; Petitioner failed to show the Hearings examiner's finding was unfair or unreasonable.
Gregorio v. Beecher, 03-E-95, (Merrimack, Smukler, 08/01/03) REVERSED
Arrested for DWI;Petitioner claims incorrect information was provided by law enforcement; the police officer advised Petitioner that there was a "potential" that his license would be suspended if he refused the test. Granted, when the officer read from the DSMV426 he advised Petitioner correctly but the officer never advised him to disregard the incorrect information. Thus the court concluded that "… it was unreasonable for the division to find that the Petitioner was appropriately informed of his ALS rights."
Guertin v. Beecher, 03-E-77, (Belknap, Smukler, 07/10/03)AFFIRMED
Arrested for DWI; Petitioner claimed he was misinformed of the consequences of submitting versus not submitting to the test; the police officer read directly from the ALS form. Court held: "Item number 4 … states the consequences of submitting to testing, items 5 & 6 clearly state the consequences of refusing …the Hearings Examiner's findings that … was properly advised of his rights from the ALS form was reasonable and consistent with the law. " (Note cross-reference to Section 9, III Miscellaneous)
Vittum v. Beecher, 02-E-119, (Carroll, O'Neill, 03/05/03) AFFIRMED
Arrested for DWI; Petitioner claims she was misinformed of the length of her license suspension for a refusal; the police officer denies telling her the length of suspension. Court held: "Although there were differences between the officer's testimony and Petitioner's, the Hearings Officer … credited the police officer's testimony … Petitioner has failed to demonstrate, by a preponderance of the evidence, that the … determination was either unreasonable or unlawful."
Jordan v. Beecher, 02-E-356, (Merrimack, McGuire, 2/12/03) AFFIRMED
Arrested for DWI; informed of ALS rights; Petitioner challenged the fact that he did not understand his rights; and not being informed of the length of suspension resulting from his refusal.Court held: "The language of the statute is clear in that it only requires that … inform Petitioner of his rights. There is no requirement that Petitioner understand them."… as to the length of suspension … "the failure of [the] officer to advise … of the length of any license suspension did not violate … statutory rights of due process" … "Further, [the] officer is not required to review the reverse side of the form with … arrested for DWI.
Austin v. Beecher, 01-E-97, (Sull., Morrill, 4/10/02) AFFIRMED
Arrested for DWI; advised of ALS rights; plaintiff "… asked the officer if he thought she would be over the statutory limits. The officer replied that he thought she would be, an opinion to which she agreed. She then declined to take the test." On appeal, Plaintiff alleged officer discouraged her from taking test; court finds that officer properly informed her of ALS rights; Plaintiff "… asking for the officer's opinion, which only confirmed her own does not change this standard."
Sanders v. Beecher, 02-E-24, (Merrimack, McGuire, 4/1/02) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff contends that he was not offered a chemical test; court held that "while he challenges Officer Wright's recollection of events, he does not assert any evidence that shows that he was not offered a breath test. (NOTE: cross-reference to Section 7 probable cause; Section 10, procedural issues)
Schaldenko v. Beecher, 01-E-321, (SD Hillsborough, Hicks, 1/4/02) AFFIRMED
Plaintiff driving erratically; advised of ALS rights; arrested for DWI; plaintiff refused to submit to a breath test and refused to sign the form; at the hearing, petitioner's attorney submitted 2 documents from doctors indicating petitioner has naturally occurring nystagmus, vertigo and an inner ear problem; Hearings Examiner noted petitioner did not inform police officer of these impairments and this evidence contradicted the information given the officer by the petitioner on the evening of his arrest. (Note: cross-reference Section 7, I, probable cause and Section 10, I, A sworn report)
Stapleford v. Beecher, 01-E-482, (Rockingham, Abramson, 1/2/02) AFFIRMED
Plaintiff was arrested for DWI; advised of ALS rights; agreed to a BAC test, but refused to sign the ALS form twice; later refused to take any of BAC test and still refused to sign the ALS form; court finds "the Hearings Examiner's finding that petitioner voluntarily refused to be eminently reasonable.
Jacobson v. Beecher, 01-E-025, (Sull., Morrill, 12/17/01) AFFIRMED
Plaintiff contends that his refusal to take a blood alcohol test was not informed because the officer did not advise him which type of test he would be required to take; the court held that this contention is neither supported by statute or case law. RSA 265:48;see Hallett v. Johnson, 111 NH 152 (1971) (decided under prior law) (NOTE: cross-reference Section 1, III issues involving "way" and Section 7, I probable cause)
Varney v. Beecher, 01-E-384, (SD Hillsborough, Hampsey, 12/13/01) AFFIRMED
Petitioner argues that he was not properly advised of his implied consent rights as required by RSA 265:87 I (a)-(c); officer testified at the hearing that he read each line of the ALS form to the petitioner; and that petitioner signed the form, albeit on the wrong line, indicating that he had been informed of his rights and refused to take the requested breath test; court finds "the petitioner was sufficiently apprised of his rights"; petitioner further argues that implied rights are analogous to Miranda rights under the New Hampshire Constitution; RSA, supra, requires only that the arrested person be informed of his rights.
Lynde v. Beecher, 01-E-038, (Sull., Morrill, 8/23/01) VACATED
Arrested for DWI; plaintiff asked the trooper "what the penalties were if she refused to submit to the test. Mistakenly, the trooper stated that her "license would go under for refusing for a period of 90 days"; in fact, the penalty for refusing the test is 180 days. RSA 265:92,I(a)(1). Court held: "a failure to reasonably accurately describe a direct consequence of a driver's refusal to submit to a test strikes me as "fundamentally unfair" and consequently a violation of due process.
King v. Beecher, 01-E-21, (Rock. Hollman, 6/27/01) AFFIRMED
Arrested for DWI and operating after suspension; petitioner refused to submit to breath test; petitioner claims he was not properly informed of his ALS rights; court held that: the officer had informed him of the consequences of refusing the test; that petitioner signed the ALS form indicating that he understood each of these consequences; and that the Chief was entitled to rely on the Officer's representation that petitioner was informed of his rights; "… law enforcement officers are always entitled to rely on the knowledge and representations of their fellow officers." "… there was no obligation on the part of Chief … to read the form to the petitioner again." (NOTE: cross-reference Section 7, Probable cause)
Smith v. Beecher, 01-E-76, (ND Hillsborough, Conboy, 5/3/01) AFFIRMED
Vehicle involved in an accident; petitioner injured; officer read ALS rights verbatim at hospital; "The petitioner claims that she does not remember reviewing her administrative license suspension rights with officer … or refusing to take a breath test or a blood test. The petitioner does not claim that officer … failed to review her rights with her; rather, she argues that her physical injuries precluded her from properly understanding or waiving her rights." Court held: "… when officer … reviewed her rights with her, she appeared to understand and weighed her options verbally." (NOTE: cross-reference Section 7, I probable cause)
Moran v. Beecher, 00-E-268, (Merrimack, McGuire, 2/20/01) AFFIRMED
MA. driver; informed of implied consent rights when officer read Section I of ALS form; questioned the officer, officer informed that for a refusal, license would be immediately suspended for 180 days; petitioner alleged he was misled by misinformation; denial of due process. Court held: the officer's statement that petitioner would lose his license … if he refused to take the test was accurate, (operating privilege in New Hampshire);the officer's statement that he would be immediately suspended if he refused the test, is inaccurate … RSA 265:91-a does not require immediate surrender of out-of-state license; and the operating privilege suspension takes effect in 30 days. There is no indication that the officer intended to mislead … (NOTE: cross-reference Section 9, II issues involving chemical tests; Section 9, V Independent Tests/second samples;Section 10, IA Sworn report)
Ward v. Beecher, 00-E-361, (Merrimack, Fitzgerald, 2/13/01) AFFIRMED
Petitioner claims that advice via the ALS form that he would lose his license if the breath test shows an alcohol concentration of 0.08 or more" is erroneous, citing Hamilton v. Turner. "Court finds no error in the advisement … as contained in the ALS form because it was merely a statement of the alcohol concentration necessary to suspend … operating license under RSA 265:91-a." "… Hamilton does not control the issues concerning advisement of ALS rights pursuant to RSA 265:87 (Supp. 2000)" (NOTE: cross-reference to Section I, III issues involving "way"; Section 5, jurisdictional issue involving ALS cases; Section 9, III Delay in obtaining breath test results)
Gregg v. Beecher, 00-E-120, (SD Hillsborough, Brennan, 9/5/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he was not properly informed of his ALS rights; court held that "… Officer MacDonald read the ALS form aloud to Plaintiff, section by section, and also allowed Plaintiff to read the form himself. The officer also answered Plaintiff's numerous questions regarding the form. There was some evidence that Officer MacDonald felt Plaintiff understood the form and was simply stalling the booking process. Eventually, Plaintiff signed the form, refusing the breathalyzer and indicating that he understood the consequences of his refusal". (NOTE: cross-reference to Section III of grounds for stop; actual physical control, Section I of probable cause and Section V of procedural issues involving ALS cases)
Hill v. Beecher, 00-E-44, (Belknap, Smukler, 7/7/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he did not understand his ALS rights; court held that "… the petitioner was 'faking' an inability to sign and that his failure to respond to the officer's request to take a blood alcohol test was a 'repeated refusal to answer'. Additionally, there was sufficient evidence to support a finding the petitioner understood his rights. This evidence includes: (1) the facts already cited; (2) the officer's notice to the petitioner of his rights by reading the form to him; (3) the petitioner's failure to do anything to manifest a lack of understanding of what was being read to him; and (4) the petitioner's ability to respond to all other inquiries in a manner that reflected understanding of what he was being told". (NOTE: cross-reference to Section I of probable cause)
Farrell v. Beecher, 00-E-72, (SD Hillsborough, Hollman, 6/27/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he refused to take the test because the officer told him that Percocet could affect the test results; officer denied making any such statement; court held that "… while petitioner experienced some confusion as to whether a BAC test result of .05 or .08 would determine his release, this confusion was not sufficient to render his refusal of a BAC test voluntary. The examiner reasoned that petitioner had read and signed the ALS form, which clearly stated that .08 or higher was the illegal level. The court also notes that petitioner was read his ALS rights, which included the information as to the illegal BAC level, not once but twice. The court thus finds that the examiner's determination that petitioner voluntarily refused the BAC test was not unreasonable". (NOTE: cross-reference to Section I of grounds for stop and illegal detention)
Mertzig v. Beecher, 99-E-283, (ND Hillsborough, Sullivan, 3/24/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he was not properly informed of ALS rights and that the officer provided inaccurate information; court held that "Officer Knox read the petitioner his ALS rights in compliance with RSA 265:87, which is the only prerequisite to administering the BAC test, and answered the petitioner's questions completely and accurately. Aside from giving complete answers to the petitioner's questions, Officer Knox was not required to inform the petitioner of the possible penalties for testing over the .03 BAC level", citing State v. Denney, State v. Jenkins and Sylvester v. Dir., Div. Of Motor Vehicles. (NOTE: cross-reference to Section I of grounds for stop and Section II of probable cause)
Douglas v. Beecher, 99-E-256, (Belknap, Perkins, 3/23/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that she was not properly informed of ALS rights; "Plaintiff's alleged deficits subsequently claimed at the hearing at the Division of Motor Vehicles is not a sufficient basis for the Court to conclude that at the time of the arrest and subsequent refusal to submit to the test that the refusal was not voluntary". (NOTE: cross-reference to Section II of grounds for stop and Section I of probable cause)
Huoppi v. Beecher, 99-E-411, (ND Hillsborough, Groff, 3/2/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to blood test; court held that "Trooper Fogerty testified that appellant was combative and rude. However, he testified that he advised her clearly as to each right. He asked her whether she understood each right, but she would not respond. Trooper Fogerty also testified that she refused to sign the form indicating that she had been informed of her rights. Appellant was asked if she wanted to take the test twice and she indicated both times that she did not wish to do so … the hearing officer could reasonably find that the appellant was advised of her rights, understood them and refused to submit to the blood test". (NOTE: cross-reference to accident, Section I of probable cause and Section V of procedural issues involving ALS cases)
Howe v. Beecher, 99-E-329, (Merrimack, Manias, 12/7/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff initially agreed to submit to breath test in the cruiser; advised plaintiff of ALS rights again at HOC; plaintiff claimed that she was not advised of ALS rights at HOC and that her refusal to sign form did not constitute refusal to take a test; court held that "… the undisputed factual record plainly shows that Ms. Howe initially agreed to take a BAC test while in the back seat of the cruiser, and subsequently changed her mind. Her statement to Officer Sweeney that she would not take the BAC test constitutes a valid refusal under RSA 265:92. Therefore, the Court need not reach the disputed events at the HOC".
Raymond v. Beecher, 99-E-252, (Merrimack, McGuire, 11/29/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff claimed he was incapacitated and therefore, he was incapable of refusing the test; court held that "… the evidence in this case indicates that Petitioner possessed sufficient mental capacity to understand the situation. Petitioner was coherent enough to explain that his hepatitis C medication along with numerous other drugs might affect his performance on the field sobriety test. He was also coherent enough to consent to a search of his vehicle. Moreover, … as the seriousness of Petitioner's situation increased, the level of his erratic behavior increased to the point during the reading of his informed consent rights he repeatedly hit his head against the wall, prompting the officers to call the paramedics". (NOTE: cross-reference to Section I of probable cause)
Carey v. Beecher, 99-E-400, (Rockingham, Murphy, 10/12/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that ALS form was confusing and that she misunderstood rights because she believed that going to the hospital for her own test would comply with the officer's instructions; court held that "… when paragraph 2 and 3 are read together they conclusively explain that submitting to an independent sample is not a substitute to the tests performed by the officer. Rather, paragraph 3 affords an individual the right to seek independent 'additional tests' to those given by the officer. Therefore, the Court finds and rules that the plaintiff was adequately advised of her rights and responsibilities as required by RSA 265:87. The court notes that RSA 265:87 requires that a person be informed of the consequences of refusal. However, there is no requirement, as the plaintiff incorrectly argues, that the decision be intelligent". (NOTE: cross-reference to Sections III and VI, below)
Peno v. Beecher, 99-E-89, (Merrimack, Perkins, 8/2/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he had been initially advised of his ALS rights in cruiser; cruiser was too small for plaintiff's large frame, causing him great pain; plaintiff was advised at police station that if he wanted to submit to breath test, he would have to be transported to another department; plaintiff claimed that he "… did not wish to subject himself to physical torture" and therefore, he refused to submit to test, resulting in violation of due process; court held that "… (1) he gave the petitioner a chance to take a breath test both at the scene of the arrest and later at the Chichester Police Department but refused; (2) he reviewed the ALS form, lines one through six, with the petitioner and the petitioner refused to sign the form ; (3) he did not recall the petitioner stating that his refusal to take the test was due to the cruiser ride to Epsom; and (4) he did not recall telling the petitioner he would need to be transported to Epsom". (NOTE: cross-reference to Section I of probable cause and Section V of procedural issues involving ALS cases)
Kaboub v. Beecher, 99-E-116, (Rockingham, Galway, 6/8/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he was not properly informed of ALS rights; court held that "the record indicates that the officers began reading the plaintiff his ALS rights from an ALS form. The plaintiff then asked the officer who was reading the rights if he would put them in 'plain english'. Realizing that English is the plaintiff's second language, the officer asked the plaintiff if he could read and understand English. The plaintiff answered in the affirmative. The officer then handed the ALS form to the plaintiff and asked him to read the rights listed on the form. The plaintiff read his rights and handed the form back to the officer. Based upon these facts, the Court finds that the hearings examiner's finding that the plaintiff was properly informed of his ALS rights was not clearly unreasonable or unlawful". (NOTE: cross-reference to Section V, below, and Section II of procedural issues involving ALS cases)
Larock v. Beecher, 99-E-94, (ND Hillsborough, Conboy, 5/27/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that officer never requested that he submit to a specific type of test and therefore he was not properly informed of ALS rights; "Petitioner cites no authority for this argument. Mr. Larock was informed that at the discretion of the officer the test would be a breath, blood, urine or physical test, or any combination of such tests. Such information was sufficient to support an informed decision to submit or decline to submit to testing". (NOTE: cross-reference to Section III, below)
Just v. Beecher, 98-E-186, (Carroll, O'Neill, 5/11/99) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff asked trooper how long he would lose license; trooper indicated it would be a six-month loss of license, unaware of a previous out-of-state conviction for DWI; plaintiff also stated that he was afraid he would fail the breath test because he had consumed two beers; trooper advised him that it would not necessarily mean a failure; plaintiff refused to submit to breath test; approximately ten minutes later, trooper found out that there was a previous conviction for DWI but did not inform plaintiff that it would be a two-year revocation; "The Court finds that the Hearing Examiner's finding that the Petitioner gave absolutely no weight to the length of license loss in making his decision was clearly unreasonable … During the reading of his ALS rights, the Petitioner asked Trooper Duffy the consequences of refusal, and Trooper Duffy informed him that he would lose his license for six months. Although Trooper Duffy did not know at that time that the information was incorrect, he learned 'within minutes' that refusal would actually result in a two-year loss of license. Trooper Duffy discussed the prior conviction with the Petitioner, yet he failed to correct the information which he had provided in addition to the standard ALS rights. Although an officer has no duty to inform an arrestee of the length of license loss, an officer may not unfairly mislead an arrestee by providing erroneous advice which might induce the individual to refuse the test".
Couture v. Beecher, 98-E-446, (SD Hillsborough, Fitzgerald, 4/27/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .12; plaintiff alleged that he could not understand his rights because he could not read English; "Although the hearings examiner did not expressly find that the petitioner understood English such that he could understand and waive his rights, such a conclusion is implied and supported by the record. The officer's testimony indicates that he and the petitioner communicated effectively with one another throughout their contact … the petitioner responded to the officer's questions and requests, both on the street and at the police station. Further, at the ALS hearing, the petitioner answered several questions on cross-examination without the benefit of translation. Finally, Officer Costa testified that he read the ALS form to the petitioner and that the petitioner signed the ALS form".
May v. Beecher, 98-E-163, (ND Hillsborough, Sullivan, 8/27/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff initially agreed to submit to breath test; discussion ensued between police officers and plaintiff as to consequences of a BAC level in the .04 or .05 range; police officers indicated that conviction might result with such a BAC level; readvised plaintiff of ALS rights and plaintiff refused to submit to breath test; "the hearing officer did not find that the officers told the defendant that he would be convicted if his BAC level was 0.04 or 0.05, as alleged by the petitioner, only that he was informed that such a BAC could result in a conviction. The hearings officer's finding is supported by the evidence and a correct statement of the law".
Kelly v. Beecher, 98-E-84, (Strafford, Mohl, 8/7/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff initially agreed to submit to breath test but two Intoxilizers were inoperable; plaintiff then requested to submit to blood test which he refused; plaintiff alleged that police officer never made a clear request for a blood test and did not properly advise him of the consequences of a refusal; court held that "the petitioner signed the form indicating that he understood the consequences of a failure to submit to the tests. That the petitioner did not believe that Trooper Hanson was asking him to submit to a blood test is simply not believable"; plaintiff also indicated that the trooper did not advise him properly as to the consequences for his out-of-state license; "Trooper Hanson was careful in his choice of words to represent that he was only offering the law to the best of his knowledge. The petitioner relied on Trooper Hanson's belief at his own risk".
Tallent v. Beecher, 97-E-261, (SD Hillsborough, Dalianis, 9/9/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to blood test; plaintiff alleged that she could not understand ALS rights because she suffered head injury in accident; court held that "the record indicates: (1) that Officer Martyny read the plaintiff her rights from an ALS form; (2) that the plaintiff read her rights from the ALS form; (3) that the plaintiff stated to Officer Martyny that she understood her rights; and (4) that the plaintiff signed the ALS form, indicating that she was refusing to submit to a chemical test. Based on the above mentioned facts, the Court declines to find that any violation of plaintiff's RSA 265:87, I-a legal right occurred". (NOTE: cross-reference to illegal detention and probable cause sections)
Lord v. Beecher, 97-E-264, (Rockingham, Gray, 9/4/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to blood test; plaintiff alleged that he could not understand his ALS rights because he suffered head injury in accident; court held that "while the injury was serious, the petitioner was conscious and responsive to the officer and appeared to the officer to be stalling when requested to submit to the giving of a blood sample … the self-serving explanation of the petitioner regarding his memory is insufficient to overcome the statutory directive".
LaPlume v. Beecher, 97-E-143, (Rockingham, Murphy, 7/24/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he could not understand his ALS rights because of medication he had taken; court held that "RSA 265:91-b, II(f) requires the arresting officer to inform the arrested person that his license will be suspended if he refuses to take a test at the officer's request. The statute does not require the officer to ensure that the arrested person clearly understands his rights. The plaintiff has presented no tenable argument to show that due process requires the officer to confirm that the arrested person has an understanding of his rights or the consequences of his refusal to take a requested test".
Alto v. Beecher, 97-E-23, (Sull., Morrill, 6/30/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he had not been properly advised of his rights; court held that "Sergeant O'Sullivan testified that he read Mr. Alto his ALS rights and that Mr. Alto said he understood those rights … Sergeant O'Sullivan explained that he does not inform arrestees of the specific terms of the suspension because he does not always have full criminal records by which he can determine the suspension period … with this background, Sergeant O'Sullivan gave sufficient testimony for the hearings examiner to find that Mr. Alto was adequately informed of his rights according to RSA 265:87". (NOTE: cross-reference to Section I of procedural issues involving ALS cases)
Champagne v. Beecher, 96-E-322, (Merrimack, Nadeau, 4/21/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he was suffering such pain from his injuries that he could not voluntarily refuse to submit to a test; court held that the record "… demonstrates that the appellant was conscious and aware at the time he was read his rights, even though he appeared confused, agitated, and in great pain at the scene of the crash and at the hospital"; court also stated "since the appellant was capable of refusing, and since his injuries did not prevent him from asking questions about his rights, the officer acted properly here". (NOTE: this is a very detailed opinion, citing cases from other jurisdictions; cross-reference to accident section)
Forrester v. Beecher, 96-E-148, (Grafton, Smith, 3/17/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that comments made by the police officer pertaining to alcohol consumption and breath test results adversely affected his decision not to submit to breath test; court held that "the record indicates both that petitioner initiated the discussion and that he received accurate information from the arresting officer".
Love v. Beecher, 96-E-335, (Merrimack, Manias, 1/24/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he did not understand ALS rights as a result of confusion caused by hypothermia; court held that "the implied consent law does not require a knowing refusal or an understanding of the consequences … it merely requires that the arrested person be informed of the consequences of refusal … and that a refusal is made freely and voluntarily"; court concluded that "despite his mental or physical condition, there is nothing to suggest that he was forced or coerced into refusing the test". (NOTE: cross-reference to Section V of procedural issues involving ALS cases)
Koyianis v. Beecher, 96-E-38, (ND Hillsborough, Conboy, 5/15/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he was never advised of ALS rights; court held that "… the hearing officer is required to weigh the testimony of the witnesses … the Court finds that the hearing officer, as the fact finder, was free to weight the conflicting testimony and chose to credit the testimony of one witness instead of another". (NOTE: cross-reference to Section I of grounds for stop and Section I of probable cause)
Pare v. Beecher, 96-E-47, (Rockingham, Gray, 3/18/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he did not give knowing, voluntary and intelligent waiver of ALS rights, which is required by statute; court stated that one of the reasons that the officer must only advise of consequences as opposed to a full waiver of rights is "… the fact that the person consenting may be highly impaired"; court further held that refusal is not a constitutional right but one provided by legislature with "strings" attached to include loss of license, citing State v. Cormier and Zyla v. Turner. (NOTE: cross-reference to Section III of probable cause)
Howe v. Turner, 95-E-374, (Rockingham, McHugh, 11/3/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he was confused and misinformed by the officer, who elected to use the terms "alcohol" or "drugs" interchangeably when discussing the breath test, when, in fact, such a test cannot be used to determine if there are any controlled drugs in the body; court held "… the plaintiff's argument that the arresting officer misled him about the implied consent law has no merit". (NOTE: cross-reference to Section II of grounds for stop; Section II of probable cause and Section I of procedural issues involving ALS cases)
Martin v. Turner, 95-E-29, (ND Hillsborough, Arnold, 3/3/95) AFFIRMED
arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test and signed form; "while the plaintiff now contends that due to his dyslectic condition he did not understand his rights as set forth on the ALS form, the Court concludes otherwise and finds that the plaintiff understood his rights and that he knowingly and voluntarily submitted to the breath test requested by Officer Remillard". (NOTE: cross-reference to Section II of grounds for stop; Section I of probable cause and Section II of issues involving chemical tests)
Magnan v. Turner, 94-E-343-B, (SD Hillsborough, Hampsey, 1/4/95) AFFIRMED
Arrested for DWI; extremely uncooperative; assaulted several police officers in booking area; had to be put into a cell; officer gave plaintiff time to "calm down"; advised plaintiff of ALS rights and Implied Consent form (which is an extra form Nashua PD uses); plaintiff refused to submit to breath test and refused to sign forms; plaintiff denied ever being advised of ALS rights and indicated that she was suffering anxiety attack that evening due to Prozac, which caused her aggressive behavior; court determined that the officers "properly performed their duties with respect to reviewing the ALS and implied consent form with the petitioner. The petitioner understood both forms and respectfully declined to take the chemical breath test".
Valley v. Turner, 94-E-27, (Merrimack, McGuire, 6/20/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to test and refused to sign form; plaintiff indicated that he was incapacitated by a combination of prescription medication and alcohol so that he did not understand the ALS rights when read to him; court stated that "based on the officer's testimony regarding the conversation he had with plaintiff in the cruiser on the way to the police station and the procedure he used to advise plaintiff of his ALS rights and plaintiff's behavior when the officer advised him of his rights, the Court finds that plaintiff adequately understood that he was waiving his ALS rights and the consequences of that waiver". (NOTE: this is not a detailed or helpful written opinion!)
Brewer v. Turner, 94-E-88-B, (SD Hillsborough, Dalianis, 6/9/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to test without being allowed to talk with an attorney; was given the opportunity to use the telephone but made no phone calls; refused to sign form; plaintiff stated that she was too upset to understand the ALS rights; court determined that there was a proper refusal. (NOTE: cross-reference to Section II of grounds for stop and Section I of probable cause)
Stevens v. Turner, 94-E-9, (Belknap, O'Neil, W., 6/3/94) AFFIRMED
arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to test and signed form; plaintiff stated that he lacked the mental capacity to intelligently refuse the test as he had sustained a head injury (was involved in an accident); court determined that plaintiff's injuries were not serious enough to warrant the conclusion that he did not know what he was doing by refusing the test. (NOTE: cross-reference to section involving back of ALS form)
Chadwick v. Turner, 93-E-709, (Merrimack, McGuire, 4/11/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to test and refused to sign form; plaintiff stated that he was incapacitated and therefore, blood should have been taken; court stated that plaintiff was not in a condition rendering him incapable of refusing; "although he was highly intoxicated, after arousal he had sufficient awareness of his surroundings to understand what was going on. Indeed, his response to Trooper Nolet's request to take a blood alcohol test demonstrated he understood what she was asking of him". (NOTE: cross-reference to actual physical control section)
Sexton v. Turner, 94-E-28-B, (SD Hillsborough, Hampsey, 3/21/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to test and signed form; plaintiff indicated that he was confused about the opportunity he had for a second test; court stated that plaintiff knowingly refused the test and stated "it is important to note that the plaintiff never requested an additional test as provided in Paragraph 3 of the Implied Consent Form". (NOTE: cross-reference to Section II of grounds for stop)
Coburn v. Turner, 93-E-620, (Merrimack, McGuire, 2/18/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test and signed form; plaintiff stated that he thought he could choose test and that he informed officer he would take blood or urine test but that he did not trust the breathalyzer; court did not find plaintiff's testimony credible; "it is not reasonable that plaintiff would have left the police station without having a BAC as he requested, knowing his license would be suspended for failing to take such a test". (NOTE: cross-reference to Section III of probable cause)
Burnham v. Turner, 93-E-314, (Merrimack, Arnold, 12/14/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights at hospital (as plaintiff had sustained an injury to his nose because of a scuffle); plaintiff refused to submit to blood test and refused to sign form; plaintiff indicated that he could not understand ALS rights due to injuries and that being handcuffed the entire time compounded the problem; court credited the officer's testimony and found proper refusal. (NOTE: cross-reference to Section II of grounds for stop and Section I of probable cause)
Kashkooli v. Turner, 93-E-472, (Merrimack, Arnold, 10/26/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights at least three times and gave plaintiff opportunity to consult an attorney and/or use the telephone; twenty minutes or so later, plaintiff refused to submit to test and signed form; plaintiff stated that he did not understand rights and was coerced into signing form by officer; plaintiff is Iranian but has lived in country for 17 years; court stated "from observation of the Petitioner and from his testimony the Court finds that Petitioner had the capacity and understanding of the English language to adequately understand the license suspension rights as contained on Form 426 and reviewed with him by Officer LeVierge". (NOTE: cross-reference to Section I of procedural issues involving ALS cases and section involving back of ALS form)
Cutler v. Turner, 93-E-24-B, (SD Hillsborough, Perkins, 3/10/93) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; officer testified that he advised plaintiff of implied consent rights; plaintiff denied ever being advised of rights by officer; would not take test based on a form which he could not read as he did not have his glasses with him; plaintiff refused to submit to test and refused to sign form; court did not find plaintiff credible and found that "plaintiff was read his full implied consent rights …".
Kneeland v. Turner, 92-E-635, (ND Hillsborough, Sullivan, 9/18/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff belligerent and uncooperative; gave form to plaintiff to read to himself; plaintiff indicated that he was unable to understand form as he had only completed 8th grade; officer attempted to read plaintiff form a second time; plaintiff covered his ears and screamed at the top of his lungs; finished reading form and plaintiff refused to submit to test; plaintiff argued that he was not properly advised of rights because of inconsistent language on form from statute; "the Court is not required to answer this question because the Court finds that the defendant did not allow the trooper to explain the Implied Consent Rights. The defendant completely refused to cooperate and to allow the trooper to explain the Implied Consent Rights to him and cannot now complain that he was not explained his rights".
Werkelin v. Turner, 92-E-251, (Rockingham, Brennan, 7/10/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff refused to submit to breath test and insisted upon a blood test, which was not offered; plaintiff indicated that the form was read to him too quickly and that he did not understand it as he found it confusing; court credited officer's testimony and found there was a proper refusal. (NOTE: cross-reference to Section II of grounds for stop)
Gillis v. Turner, 92-E-320, (ND Hillsborough, Fauver, 6/26/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff refused to submit to test; plaintiff argued that form was read to him by officer but would not let plaintiff read form himself; "the Court finds that the mere fact that the plaintiff was not given the opportunity to read the implied consent form does not negate the finding that the rights contained on the form were given to him by the officer".
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II. Choice of Test/Discretion of Law Enforcement

Murray v. Beecher, 07-E-0038, (Grafton, Burling, 07/27/07) AFFIRMED
Petitioner claimed that decision was unreasonable and unlawful because the PBT testing unfairly and improperly influenced his decision to refuse the blood test. He also claimed that the officer giving PBT after refusing the blood test was unlawful. Court ruled that PBT test was given after Petitioner refused the blood test and after Petitioner was clearly informed that the PBT was not a substitute for the blood test. Court found that Petitioner requested to take PBT the notification and Hearings Examiner's decision was reasonable and lawful …
Klosieski v. Beecher, 02-E-35, (Sull., Morrill, 8/14/02) AFFIRMED
Arrested for DWI; informed of ALS rights; no specific test requested; petitioner asserts that the officer … "did not specify which blood alcohol concentration test he intended to administer. As a result the petitioner could not make an informed decision to submit or refuse to the test." Court held "officer can request any or all; refusal of any test is refusal under implied consent law. (NOTE: very brief order; little precedential value)
Boynton v. Beecher, 02-E-151, (SD Hillsborough, Galway, 7/29/02) AFFIRMED
Arrested for DWI; advised of ALS rights; petitioner refused to submit to breath test; wanted to go to Brigham and Women's Hospital to take test; The tests are clearly to be administered at the direction of the … officer and while petitioner was free to choose any additional tests she desired at her own expense, that is separate and distinct from any tests requested by the police under RSA 265:84; Court held: petitioner has not sustained the burden of showing an error of law … petitioner's conduct was an intentional interference with the administration of the test to allow a finding of refusal."
Kennedy v. Beecher, 01-E-325, (Rockingham, Hollman, 8/21/01) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; "petitioner claims that he was not properly advised of his ALS rights because the arresting officer did not re-read the ALS rights after administering a breath test, prior to asking petitioner to submit to a blood test"; RSA 265:87 states "You are being asked to submit to a test or tests, at the discretion of a law enforcement officer … you may be asked to perform a breath, blood or … test, or any combination of these. AFFIRMED
Satish v. Beecher, 01-E-34, (Rockingham, Abramson, 5/31/01) AFFIRMED
Arrested for DWI; advised plaintiff of both his Miranda and ALS rights; blood test was also requested; plaintiff agreed, then refused; plaintiff advised his license would be suspended for a refusal; plaintiff requested an ALS hearing to challenge the suspension and asserted that it should not be imposed based upon the doctrine of confusion; because he was informed of both Miranda and ALS rights he assumed that he was allowed to consult with counsel prior to taking any tests; Examiner found there was no effect on his test choices and suspended plaintiff pursuant to RSA 265:91-a (Supp. 2000). Court held "that this finding is legally correct". (NOTE: cross-reference to Section 10, VII Miscellaneous)
Maciejewski v. Beecher, 98-E-15, (Strafford, Mohl, 4/22/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff repeatedly and without explanation requested blood test; officer advised plaintiff that he was requesting a breath test; plaintiff eventually DEEMED a refusal when he would not blow properly to obtain a breath sample; "plaintiff argues that his expressed willingness to submit to a blood alcohol test shows that he was, or would have been, cooperative in providing a test sample. Plaintiff had no right, however, to select the testing method. Officer Barresi was charged with that responsibility … Furthermore, plaintiff's repeated requests for a blood test suggest that he was, for some reason, reluctant to submit to a breath test", citing Hallet v. Johnson. (NOTE: cross-reference to Section V, below)
Walsh v. Beecher, 95-E-327, (ND Hillsborough, Sullivan, 2/9/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; Intoxilyzer malfunctioned; officer then asked plaintiff to accompany him to another police department (five or six miles away) to use that Intoxilyzer; plaintiff refused to do so and signed a second ALS form indicating that he refused; plaintiff claimed that because of recent prostate surgery, he had wet his pants and was extremely uncomfortable therefore, he wanted to end his contact with police as soon as possible thus his refusal was not voluntary; court held that "… petitioner's physical condition does not excuse refusal to take the test. He elected to drive despite his condition … the distance to the Bedford police station was only five or six miles … the fact that the petitioner had wet his pants, was uncomfortable and tired did not excuse his refusal or make it involuntary". (NOTE: cross-reference to Section II of probable cause)
Soldi v. Turner, 94-E-164, (Belknap, Galway, 3/10/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to blood test as he stated he was afraid of needles and of contracting AIDS; plaintiff indicated that he would submit to breath test but it was not offered; "although the court finds that Soldi's unsubstantiated and uncorroborated testimony regarding his fear of needles and of contracting AIDS to lack credence, even a genuine fear does not negate his refusal because his choice was still made freely and voluntarily, with knowledge of the consequences of refusal". (NOTE: cross-reference to Section I of grounds for stop)
LaLiberte v. Turner, 94-E-250, (Merrimack, Arnold, 12/12/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test and refused to sign form; plaintiff stated that he was physically unable to perform breath test due to recent bypass surgery and informed officer of that; plaintiff indicated that he would have agreed to a blood test but was never offered that; trooper stated that he knew plaintiff had undergone surgery but that he never indicated that he was unable to perform breath test and that had he done so, trooper would have offered him a blood test; in addition, trooper stated that plaintiff was very uncooperative during the booking process; court determined that "the issue is solely one of credibility. The Court finds Trooper Forey to be credible. Had the petitioner advised Trooper Forey of his inability to take the test - not merely refusing to do so - State police policy would have resulted in petitioner being transported to a local hospital for alternative testing".
DiLorenzo v. Turner, 94-E-404, (Rockingham, McHugh, 10/13/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; officer could not find an available Intoxilyzer machine (checked with three surrounding departments); officer then requested blood test which plaintiff refused because he faints when giving blood; plaintiff stated that he should have been advised of his ALS rights a second time because he did not think he would lose his license for refusing blood test as he had already agreed to take breath test; plaintiff also stated that officer should have made greater effort to provide breath test under the circumstances; court determined that RSA 265:84 gives an officer wide discretion as to which tests to request; court held that there was no abuse of that discretion; "the determination to change the mode from breath to blood is a determination to be made exclusively by the arresting officer, not by the accused, in the absence of a medical condition, which was not present here"; court also not persuaded that ALS rights had to be read a second time; "he admits hearing those rights the first time …".
Birk v. Turner, 94-E-199, (ND Hillsborough, Groff, 8/23/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test and signed form; plaintiff claimed that officer should have offered him blood test because such a request had been made to others in the past; court determined that the circumstances in the other cases were not present in this case and it was a proper refusal. (NOTE: cross-reference to section involving back of ALS form)
Kelley v. Turner, 93-E-257, (Merrimack, Manias, 8/20/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; because drugs were suspected, as well as alcohol, officer requested both a breath test and a blood test; plaintiff agreed to submit to blood test but refused to take breath test (officer ended up not taking blood once plaintiff refused to submit to breath test); court determined that "the implied consent law authorizes police to designate two tests, and that a driver's refusal to submit to both tests amounts to refusal within the meaning of RSA 265:92. (NOTE: there is a detailed analysis of RSA 265:92, as well as case law from many jurisdictions, cited in this opinion!)
Lawson v. Turner, 93-E-129, (Merrimack, O'Neill, J., 6/4/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; attempted to blow several times into machine but could not get a reading; plaintiff then asked to submit to blood test which he refused; plaintiff stated that he should not have been considered a refusal as he suffers from a heart condition and tried to blow enough air into the machine; officer felt that plaintiff was being uncooperative; court held that "subsequent to the petitioner being unable or unwilling to submit to the breath test, the officer testified that he indicated to the petitioner that he wished same would submit to a blood test to which the defendant refused".
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III. Recantation of Refusal

Armstrong v. Bailey, 217-2011-CV-00185, (McNamara, 11/18/11), AFFIRMED
ALS refusal. Appealed on reasonable grounds and that he did not refuse. Refused PBT at scene after stating would take test. Read ALS and Petitioner refused. Officer reminded him that he had asked for breath test at scene. After pondering decision for 10 minutes, agreed to breath test. Before start of observation period, Petitioner refused. After 40 minutes, requested test. Officer did not allow test. Held sufficient evidence of reasonable grounds and valid refusal. Officer reasonably denied test due to passage of time under Harlan case.
Kover v. Director, 215-2010-00391, (Vaughan, 2/4/10), AFFIRMED
ALS refusal. Petitioner refused field sobriety tests and breath test. After refusal, officer told Petitioner he would seek search warrant to compel blood test. Petitioner then submitted to blood test. Petitioner argued that subsequent blood test negated prior refusal. Subsequent search warrant and blood test irrelevant and did not constitute recantation. Petitioner did not clearly recant, but submitted after being confronted with search warrant for blood. Did not request breath test. Law provides for test or tests. Court reviewed out of state case authority that stands for the proposition that subsequent agreement to take a test does not invalidate prior refusal.
Ruby v. Beecher, 09-E-0225, (Barry, 2/08/10), AFFIRMED
ALS refusal appeal. Call received by police that Petitioner was possibly intoxicated. Stopped by police and arrested after field sobriety tests. He refused to sign the ALS form until he spoke with his attorney. Asked again to take a breath test and requested to speak with an attorney. Court held the evidence more than sufficient for reasonable grounds and valid refusal.
Bergeron v. Beecher, 05-E-086, (Cheshire, Arnold, 12/02/05) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; changed his mind after fifteen minutes; officer refused to give plaintiff a breath test; court held that "The petitioner retracted her initial refusal within a reasonable time period. The trooper should have given her the test citing Harlan v. State.
Elliott v. Beecher, 00-E-268, (Rockingham, Galway, 7/20/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; changed his mind after one hour; officer refused to give plaintiff a breath test; court held that "Whether the petitioner's change of heart concerning the BAC test occurred thirty minutes after signing the ALS form refusing the test or sixty minutes after arriving at the station, under Harlan, the petitioner's signed refusal was binding, and Officer Yeaton was not required to administer a BAC test", citing Harlan v. State.
Blake v. Beecher, 00-E-7, (Sullivan, Morrill, 4/12/00) AFFIRMED
arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; changed his mind after thirty minutes; officer refused to give plaintiff a breath test; court held that "Even if I were to find that the plaintiff did recant his earlier refusal to take a breath alcohol test within thirty minutes, New Hampshire adheres to the rule that a refusal is final and cannot be rescinded", citing Harlan v. State. (NOTE: this is NOT a detailed opinion)
Carey v. Beecher, 99-E-400, (Rockingham, Murphy, 10/12/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff went to hospital after being released from custody and was unable to get independent test; plaintiff returned to police department and requested a breath test; officer refused to give plaintiff a breath test; court held that "After the plaintiff refused the test she was released from custody, traveled to the Exeter Hospital where she spoke with a hospital employee and then traveled back to the Hampton Police station. Based on this sequence of events, the Court finds and rules that the Hearings Examiner's determination that a substantial period of time had elapsed was not unreasonable". (NOTE: cross-reference to Section I, above and Section VI, below)
Larock v. Beecher, 99-E-94, (ND Hillsborough, Conboy, 5/27/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that he changed his mind and requested a breath test; officer stated that he did not believe plaintiff requested test; court held that "Harlan does not stand for the proposition that once a refusal is made, it can never be retracted. Assuming, without deciding, that the hearing officer was incorrect in his statement that there cannot be a retraction, such error does not require reversal in this case. Upon review of the hearing transcript, the court finds that Mr. Larock did not retract or recant his refusal", citing Harlan v. State. (NOTE: cross-reference to Section I, above)
Daly v. Beecher, 98-E-598, (Rockingham, Galway, 1/26/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test but approximately 10-15 minutes after Intoxilyzer operator left the station, plaintiff changed his mind and requested a breath test; officer informed plaintiff that it was too late; court held that "… the plaintiff contends that the police should have located and called in another intoxilyzer operator. There was no evidence that another operator could have been located within a reasonable time and no compelling evidence that Mr. Daly would not have changed his mind again considering that he requested a subsequent blood test, at the hospital, and when available did not have this performed. Moreover, there is no evidence that the plaintiff misunderstood his rights and responsibilities under the law. Therefore, the finding of the Hearings Examiner that the plaintiff's refusal to take the breath test was not vitiated by his later having requested the test was both lawful and reasonable". (NOTE: cross-reference to Section I of probable cause)
Ford v. Beecher, 97-E-87, (Strafford, Nadeau, 9/14/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff could not decide whether or not to submit to blood test and eventually DEEMED a refusal; later, she requested a test, after booking process completed; court stated that "the petitioner in this case cooperated during the reading of her rights, but would not make up her mind whether or not she wanted to have a BAC test done. Although she later requested a test, that request was made long after she had been told that her failure to cooperate would be deemed a refusal"; court concluded that "… the petitioner in this case waited until she had been taken to the Strafford County Jail, performed a series of six field sobriety tests, and completed booking and bail processes before she requested a test. This could be deemed a stall tactic …", citing Harlan v. State and Wensley v. Director, DMV.
McCann v. Beecher, 95-E-359, (Merrimack, Manias, 2/9/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test because he wanted assistance of counsel and recanted 10-15 minutes after initial refusal; court concluded that it did not agree that "… the hearing officer's conclusion that McCann's recantation did not require the police officer administer the breath test is an error of law"; court further stated "because assistance of counsel is not required prior to submission to the breath test, delaying the test and compromising the reliability of the test results for that reason is not then 'reasonable'", citing Harlan v. State. (NOTE: cross-reference to Section VI of procedural issues involving ALS cases)
Moser v. Beecher, 95-E-153, (ND Hillsborough, Groff, 8/24/95) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test, after consulting with her husband by telephone and signed form; after processing was completed, plaintiff was informed by husband that she would have to take breath test as he could not arrange for her to have blood test at home (he was a doctor); officer advised husband that it was too late and that he would not give breath test; court determined that "… under the facts of the present case, petitioner's decision to take the test after all was communicated within a reasonable time after her initial refusal. The facts indicate that the delay involved was at best 15 minutes and that the delay could have had only a nominal affect on the test results", citing Harlan v. State. (NOTE: this was a de novo hearing!)
Curran v. Turner, 94-E-278-B, (SD Hillsborough, Hampsey, 10/18/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test and signed form; after 20 or 30 minutes, plaintiff indicated that he wanted to take the breath test; officer checked with supervisor and told plaintiff he would not be offered a second opportunity as he had given a knowing refusal; court determined that it was reasonable for officer not to accept the recantation after a delay of 20 or 30 minutes; "to allow Mr. Curran to change his mind after voluntarily and knowingly signing the administrative license suspension form and refusing the test would result in a lack of finality in the process".
Aloupis v. Turner, 94-E-171, (Merrimack, Mangones, 10/18/94) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test and signed form; plaintiff left the police department after being processed and returned a few minutes later, indicating that he wanted to take the breath test; officer checked with supervisor and told plaintiff he would not be offered a second opportunity as he had left police custody; plaintiff was advised that he could get an independent test done at the hospital; plaintiff went to hospital but not allowed to get one; court determined that "one or two minutes passed between the plaintiff's refusal and the subsequent request of plaintiff to take a test … it would appear that little had occurred, however, other than the passage of some one or two minutes, that would have impacted upon any results"; court concluded that no significant delay had taken place and retraction was not untimely, citing Harlan v. State and State v. Schneider. (NOTE: the court completely ignored the fact that there was a lot more than a two or three minute delay since processing continued for over twenty minutes after he refused and before he was released; also cross-reference to Section I of grounds for stop)
Cavanaugh v. Turner, 94-E-86-B, (SD Hillsborough, Arnold, 6/2/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test and signed form; approximately 5 or 10 minutes later, plaintiff indicated that he was thinking about taking test; officer stated that it was too late as he had already knowingly refused; court determined that plaintiff made an informed refusal; "if an individual were allowed to change his/her mind after voluntarily and knowingly signing the administrative license suspension form, refusing to take the test, finality in the process would be lacking". (NOTE: cross-reference to section involving back of ALS form)
Wilson v. Turner, 92-E-642, (ND Hillsborough, Groff, 9/29/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff agreed to submit to test; after the 20-minute observation period, plaintiff changed mind and said he did not want to take test; refused at that time; approximately 5-10 minutes later, plaintiff indicated he wanted to take test and officer would not allow him to do so; court determined that plaintiff made an informed refusal; "in this case, while the defendant changed his mind within ten minutes, it would be disingenuous to suggest that the test could immediately be given. Proper procedure and cautious police work would dictate that a second twenty-minute waiting period would be required. Had not an additional waiting period been imposed, such an absence would undoubtedly spawn an objection by the defendant … under the circumstances, the Court finds this delay to be substantial", citing Harlan v. State.
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IV. Right to Counsel

Fitzgerald v. Beecher, 05-E-035, (Rockingham, McHugh, 05/11/05) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff claimed he was led to believe that he had a right to an attorney before deciding whether to take or refuse the test; Hearings Examiner sustained the suspension. Court held that based on findings and the fact that Petitioner did not testify, it could not find that the hearing examiner was in error.
Matthews v. Beecher, 04-E-156, (Grafton., Houran, 10/04/04) AFFIRMED arrested for DWI; advised plaintiff of ALS rights; plaintiff requested a phone call and was granted one; she called her sister and then wanted to call her attorney; officer said no because she was not entitled to attorney; Court held allowing telephone call did not create entitlement to call attorney. (NOTE: cross-reference to accident and Sections I and II of probable cause)
Bobek v. Beecher, 99-E-184, (ND Hillsborough, Conboy, 10/13/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff requested an attorney; trooper advised plaintiff that he was not entitled to have attorney present and reread ALS rights; plaintiff claimed that he understood rights but would not submit to test without attorney present; "… the petitioner specifically refused to take the breathalyzer test without the presence of an attorney, which he was told he was not entitled to", citing Harlan v. State. (NOTE: cross-reference to accident and Sections I and II of probable cause)
Wolters v. Beecher, 96-E-143, (Strafford, Abramson, 11/14/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff alleged that she was confused because officer informed her that she had no right to talk to an attorney but afforded her some time to attempt to contact one; court stated "the trooper made it clear that the petitioner had no legal right to contact an attorney before deciding whether to submit to a blood test. The trooper later gave the petitioner the option of contacting an attorney if she had easy access to the phone number and if the hour was not too late. In other words, Trooper Rayeski would let the petitioner speak with an attorney if it did not take too long. When the petitioner did not know the number, the trooper decided that an attempt to find one would be an unreasonable delay. Since there is no legal right to an attorney, the Hearings Examiner was reasonable in finding that the petitioner's rights were not abridged", citing State v. Greene and State v. Schneider. (NOTE: cross-reference to anonymous complaints and Section II of probable cause)
Skaubitis v. Beecher, 96-E-45, (Rockingham, Gray, 3/18/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff requested opportunity to talk to attorney and was given that opportunity; officer remained in room while plaintiff talked to attorney; plaintiff refused to submit to breath test; plaintiff alleged that he was prevented from having meaningful discussion with attorney because of officer's presence, constituting violation of attorney-client privilege; court stated that there is no right to counsel on making decision to take test, citing State v. Greene; "consequently, when the police allowed Petitioner to call an attorney, they did not create any greater rights for Petitioner than the mere act of calling a lawyer. Just because Petitioner was allowed to call a lawyer does not mean that he therefore gained any such rights as attorney-client privilege in order to speak to his lawyer privately … there is nothing in the record to indicate that the police were blatantly trying to interfere with Petitioner's consultation with his lawyer". (NOTE: cross-reference to Section V of procedural issues involving ALS cases)
Cullinan v. Beecher, 95-E-57, (Carroll, Abramson, 11/1/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff asked numerous questions pertaining to the consequences of failing a breath test; made repeated requests for counsel and refused to sign anything without counsel present; plaintiff, although "not afraid of the BAC test", refused to submit to a test; plaintiff alleged that he did not refuse to take a test; court stated that advice of counsel is not required when making a decision to take a breath test, citing State v. Delisle and State v. Greene; court further held "… the petitioner attempted to delay or frustrate the proceedings. He would, in one breath, claim that he understood his rights … and, in the next, assert that he was confused. The Court agrees with the conclusion that the petitioner was intoxicated, intentionally stalling for time, and attempting to make things difficult". (NOTE: cross-reference to Section I of grounds for stop and Section I of probable cause)
Marston v. Beecher, 95-E-182, (ND Hillsborough, Conboy, 10/18/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff asked to speak to counsel; officer gave him ten minutes to speak with counsel; plaintiff unable to reach an attorney; plaintiff advised by officer, fifteen minutes later, that he needed an answer and that it was plaintiff's decision, not counsel's; plaintiff refused to submit to test without talking to counsel first; court stated that advice of counsel is not required when making a decision to take a breath test, citing State v. Delisle and State v. Greene; court further held, "… the plaintiff has not proven that the Chief Hearing Examiner acted unreasonably when, in his role as fact finder, he accepted Officer Howe's assertions that the officer asked for a decision and [Mr. Marston] stated that he would not take the test without consulting his attorney'. Moreover, the Chief Hearing Examiner correctly applied the legal standard when he determined that, through his conduct, Mr. Marston refused …". (NOTE: cross-reference to Section II of grounds for stop)
Ladd v. Turner, 94-E-86, (Merrimack, McGuire, 6/1/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test and signed form; plaintiff indicated that he was not allowed to consult with his attorney before deciding to take a breath test, violating RSA 594:16; court determined as a factual matter that plaintiff did not request to talk to an attorney until after he had refused; "moreover, even if petitioner had made a timely request for a lawyer, RSA 594:16 is not implicated under these circumstances", citing State v. Greene. (NOTE: cross-reference to section involving back of ALS form)
Marmorstein v. Turner, 94-E-84, (ND Hillsborough, Conboy, 5/4/94) AFFIRMED
Arrested for DWI and criminal charge of Possession of a Controlled Drug; advised plaintiff of ALS rights; plaintiff would not indicate if he would take a test without consulting with an attorney; officer told plaintiff that decision was his and that he needed an answer; told plaintiff that non-response would be deemed refusal; court determined "there is no right to consultation with counsel on the issue of whether to submit to testing", citing State v. Greene; court went on to say that "such a right was not 'created' because petitioner had been advised that he would also be arrested for possession of a controlled drug. Neither was his knowing refusal vitiated by the threat of a drug possession charge".
Leavy v. Turner, 92-E-93, (Strafford, Nadeau, 9/1/92) REVERSED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised of Miranda rights as accident was involved and then advised of implied consent rights; plaintiff requested an attorney on several occasions before making decision whether or not to take test; was informed he "did not need a lawyer" but at no time did officer inform him that he was not entitled to counsel for the specific decision of whether or not to take a test; "it is especially important in this case that the police officer take extra steps to be sure the plaintiff was not confused about his right to counsel since he was informed he had such a right before being informed of the implied consent law. Telling someone under arrest he does not 'need' an attorney to make a decision whether or not to take the test is vastly different from advising him he has no such right".
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V. Deemed Refusal

 
Higgins v. Beecher, 09-E-0141, (Barry, 2/8/10), AFFIRMED
ALS refusal appeal based on refusal by conduct during a breath test. Petitioner did not follow 20 minute wait instructions by putting his hands to his mouth and taking a deep breath but failing to blow properly. This occurred 3 times and intoxilyzer operator could not obtain a valid reading and deemed refusal. Court held the decision clearly lawful and reasonable.
Wreck v. Beecher, 09-E-0227, (Smukler, 07/16/09), AFFIRMED
ALS refusal. Respondent refused PBT and stated that he would take no further tests. He repeatedly stated that he would not agree to any further tests. Behaved belligerently. Officer read ALS form to respondent but did not request a specific test. Respondent refused to sign form. Deemed refusal. Court held that the Hearings Examiner reasonably concluded that respondent refused by conduct. Due to respondent's repeated refusals, the officer was not required to request again that he submit to the test. Also, the ALS form notified the respondent that he was being asked to submit to a chemical test. Respondent never requested a test which distinguished this case from Wensley
LANGRIDGE v. BEECHER, 08-E-0256 (Rock, Lewis, 08/08/08) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. The Petitioner argued that was unlawful because refusal evidence was improperly elicited during the hearing. He asserted that the Hearings Examiner erred by reopening the hearing, and erred by allowing argument to be turned into evidence. The Court noted that the Hearings Examiner had various authorities under Saf-C 203.11 including "to determine the order of proof" and "to make a complete record of the proceeding including all relevant matters ". The Court also noted that under Saf-C 203.20 that "no party is required to rest its case at a given time except when a Hearings Examiner has heard all relevant evidence and rebuttals." The Court ruled that no real reopening had taken place and there had been no objection by Petitioner to the colloquy during summations that resulted in additional evidence about the deemed refusal. (See also Part 8 Section V Deemed Refusals)
JOHNSON v BEECHER, 08-E-0082 (Belknap, McHugh, 07/18/08) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. The Petitioner argued that it was improper to be found to have refused. He asserted that he did not refuse the test because he agreed to it and then asked for the hospital blood drawn before ALS advisement and arrest to be used. The officer did not agree and deemed him a refusal when he would not provide another sample. The Court found the record supported the HE's determination that the Petitioner's decision was a refusal and it was correct for the officer to deem him a refusal.
COLLINS v BEECHER, 08-E-0271, (Rock, Lewis, 07/14/08) AFFIRMED
Arrested for DWI; deemed a refusal on breath test based on arresting officer's testimony. Certified breath test operator was not at hearing. Petitioner argued that deemed refusal was improper because evidence was not sufficient and because breath operator was not present. Court found no requirement for breath operator on refusal allegation and that evidence was sufficient. Petitioner provided no transcript. Hearings Examiner credited officer's testimony regarding deemed refusal.
HOLDEN v. BEECHER, 06-E-0220, (N D Hills, Abramson, 07/27/06) AFFIRMED
Arrested for DWI, Petitioner was advised of his ALS rights, refused to sign the form but agreed to testing; he was deemed a refusal after multiple failed attempts. Petitioner argued insufficient evidence to find reasonable grounds, and asserts that he was not properly informed of his ALS rights. The H.E. excluded the results of the sobriety tests; but not the officer's observations regarding Petitioner's physical behavior. The Court determined that the H.E. used his discretion to evaluate the differences in testimony given at hearing, and found that the H.E's decision "…was reasonable and consistent with the evidence presented."(See also Part 7 Section 1)
Drolet v. Beecher, 06-E-011, (Strafford, Fauver,03/24/06) AFFIRMED
Petitioner appealed alleging error of law by the Hearings Examiner for upholding the deemed refusal for two reasons, denial of due process and misconstruing the term evaluation. Petitioner had agreed to breath test and tested at 0.00 but would not consent to another officer evaluating him further. The Court ruled that having another officer perform a further examination (evaluation) falls within the scope of " physical tests and examinations " under RSA 265:92 and RSA 265:84. The Hearings Examiner's determination on the evidence was not clearly unlawful or unreasonable.
Perez v. Beecher, 05-E-584,(Rockingham, Morrill, 02/16/06) REVERSED
Petitioner arrested for DWI; stated he wanted a breath test;; Petitioner deemed a refusal because he said words to the effect that he was " going to go off on the officer when they got back to the police station; Court ruled: Petitioner's entire conduct not merely words expressing refusal was NOT sufficient for deemed refusal under Wensley and Jordan and that finding was unreasonable.
BEYOR V. BEECHER, 05-E-116, (Belknap, Smukler, 12/13/05) AFFIRMED
Arrested for DWI; deemed a refusal on breath test based on arresting officer's testimony. Certified breath test operator was not at hearing. Petitioner attacked sufficiency of evidence because officer gave insufficient weight to his injuries. Petitioner argued that deemed refusal was improper because breath operator was not present. Court found evidence sufficient based on other indicia of impairment. Court also found no requirement for breath operator on refusal allegation and that evidence was sufficient
Poitras v. Beecher, 05-E-046,(Cheshire,Sullivan,07/13/05) AFFIRMED
Petitioner appealed alleging error of law by the Hearings Examiner for upholding the deemed refusal. Petitioner had agreed to blood test but would not sign hospital form agreeing to be tested and to pay despite assurances from nurse and officer that Keene Police would pay: Court agreed with Hearings Examiner citing State v. Jordan, 132 NH 34 (1989).
Proulx v. Beecher, 05-E-003,(S. Hillsborough, Hicks, 05/26/05) AFFIRMED
Petitioner arrested for DWI; agreed to take a blood test; Petitioner refused because test kit had no proper blood tubes, and claimed that a valid test under the admin rules could not be done even with substituted hospital tubes. Court ruled: Petitioner's conduct was sufficient for deemed refusal and finding was not unreasonable. Petitioner should have taken test to raise issue. (See also Section 7 Part I, PC to Arrest)
Golino v. Beecher, 05-E-029,Belknap., Smukler,05/06/05) AFFIRMED
Arrested for DWI; Petitioner claims he was not afforded sufficient time to decide whether to take the test when officer demanded a decision within two minutes after there had been some delay and an initial warning that he must make a decision. Court held: "The record supports the hearings examiner's finding that Petitioner was afforded sufficient time to decide. Petitioner failed to demonstrate that the determination was either unreasonable or unlawful."
Thompson v. Beecher, 04-E-575, (Rock, Morrill, 03/03/05) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; petitioner combative and uncooperative throughout the arrest and booking process; petitioner refused to sign the acknowledgement; DEEMED a refusal; court held that " …Officer Bentz testified that he notified the petitioner of his rights and the documents support this: This uncontradicted evidence is sufficient to support the hearing examiner's finding that the petitioner refused to submit to the breath test". (See also Part I, Informing of ALS Rights)
Harbeck v. Beecher, 04-E-484 (S.D.Hillsborough, Lynn, 04/27/05) AFFIRMED
Petitioner asserted that he did not specifically refuse and recanted. Court held: . . .that the evidence was sufficient to establish that he refused. He repeatedly stated he did not understand and would not sign anything until he spoke with his lawyer. In the absence of any indication that the trooper had misinterpreted Petitioner's statements, Hearings Examiner's finding was reasonable. (Cross-reference Section 1; Issues involving way)
Stetson v. Beecher,04-E-274,(Merrimack,Fitzgerald,12/01/04) REVERSED
Arrested for DWI; advised of ALS rights; failed FST's; Petitioner submitted to PBT; .0196; and refused a second breath test; suspended for 2 years. Petitioner appeals that the officer never advised her that she could be subject to further testing after the PBT in violation RSA 265:92-a. DEEMED A REFUSAL. Court finds that Trooper…was required by RSA 265:92-a to inform the Petitioner about taking the PBT, and how it would impact any further testing, and he did not warn her." "The Petitioner failed to submit to a second test because she had been denied a statutory right and should not be punished for her lack of understanding as to the testing requirements." (See also Part I, Informing of ALS Rights)
Mabie v. Beecher, 04-E-154,(Merr,Fitzgerald,10/04/04)AFFIRMED
Arrested for DWI; advised of ALS rights, Petitioner asked to sign the form and submit to testing; did not respond to the request; DEEMED A REFUSAL. Police received information through dispatch that Petitioner had been driving erratically; when stopped Petitioner was found to have glassy and bloodshot eyes, and in acting erratically slapped the officer. COURT finds: "that this was sufficient evidence for the HE to determine that the officer had a reasonable belief the Petitioner was operating while DWI.
Leclerc v. Beecher, 03-E-391, (Merrimack, McGuire, 02/11/04) AFFIRMED
Arrested for DWI;advised of ALS rights, Petitioner was asked to sign the form and to take a breath test but stated that he could not answer;DEEMED A REFUSAL; Police officer's initial investigation was based on an eyewitness report; the testimony provided at the hearing supported this statement. Court held: "the Hearings Examiner had sufficient evidence … to believe that … had been operating under the influence. AFFIRMED
Marston v. Beecher, 03-E-528, (Rockingham, Nadeau, 01/20/04) AFFIRMED
Petitioner arrested for DWI;agreed to take a blood test; Trooper testified that Petitioner intentionally moved her arm when needle was inserted;failed to cooperate; her actions were inconsistent with her words.Court ruled: Petitioner's conduct was sufficient for DEEMED REFUSAL.
Lavin v. Beecher, 03-E-385, (ND Hillsborough, Mangones, 12/30/03) AFFIRMED
Petitioner afforded five attempts to provide breath sample;Officer testified that Petitioner intentionally frustrated these attempts; failing to give consistent blow. Court ruled: Under Jordan, Petitioner's conduct as a whole was sufficient for deemed refusal.
Douglas v. Beecher, 03-E-442, (Merrimack, Sullivan, 12/15/03) AFFIRMED
Petitioner was arrested for DWI;afforded the opportunity to provide a breath sample; instructed not to touch his lips during twenty-minute waiting period; Officer testified that Petitioner touched his lips three times in spite of warnings. Court ruled that a police officer may ask an individual to comply with reasonable instructions …, even though the instructions are not proscribed by the rules. Petitioner's conduct was sufficient to be DEEMED A REFUSAL
Chouinard v. Beecher, 02-E-150, (Rockingham, Hollman, 12/5/02) REVERSED
Constructive refusal. Petitioner makes 13 attempts to provide breath sample;. Officer testified that Petitioner purposefully frustrated attempts. Hearings Examiner ruled Intoxiflyzer Certification (preventive maintenance form) not required because it was a refusal. Court held: "In reaching their conclusions, … had to assume that the machine was operating properly … if the machine was not operating properly it is questionable whether petitioner was intentionally refusing to provide an adequate breath sample … there was no proof at all in the record establishing that the machine was operating properly."
Gordon v. Beecher, 02-E-0140, (Merrimack, Fitzgerald, 9/9/02) AFFIRMED
Arrested for DWI; informed of implied consent rights; asked to sign ALS form indicating his election to take or refuse a test; petitioner did not respond; merely stared at police officers; Court held: "… the officers made every attempt to ask … what about the ALS form that he did not understand and were more than willing to explain it to him. Instead of responding with questions about the form … just sat there and stared at the two officers. Thus it was neither illegal nor unreasonable for the Hearings Examiner to conclude that … refused to submit to the test."
Matiz v. Beecher, 02-E-146, (SD Hillsborough, Hampsey, 7/29/02) AFFIRMED
Trooper read implied consent rights verbatim from Section I of the ALS form; Petitioner alleges that the Trooper must specifically ask for a test, in addition to reading rights. Court held: "I find and rule that the petitioner was asked to take a test by virtue of the reading of the ALS form to him by the state trooper."
Boynton v. Beecher, 02-E-151 (SD Hillsborough, Galway, 7/29/02) AFFIRMED
Arrested for DWI; informed of implied consent rights; offered breath test; Petitioner stated she would submit to test performed at Brigham & Women's Hospital in Boston. Officer asked for breath test 3 times and got the same answer; DEEMED a refusal. Court held: under implied consent law, "the tests are clearly to be administered at the direction of the law enforcement officer and while she was free to choose any additional tests she desired at her own expense, that is separate and distinct from any tests requested by the police under RSA 265:84." "Upon a detailed review of the evidence submitted,the court finds that the decision that she refused the lawfully requested breath test is supported by the examiner's findings of fact.
Depoutot v. Beecher, 02-E-43, (Merrimack, McGuire, 7/3/02) REVERSED
Plaintiff agreed to breath test; third attempt resulted in BAC of .04; 3 more attempts resulted in inadequate samples; plaintiff DEEMED a refusal, plaintiff requested a blood test; told he could get one at his own expense; hospital BAC results .0076. Medical expert testified plaintiff's illness made it improbable that plaintiff could blow adequate sample. Held: "The Hearings Examiner did not take into account the total circumstances of this case but limited his findings of fact to Mr. Depoutot's failed attempts to blow into the machine and concluded on that basis that he was intentionally preventing accurate testing. The Hearings Examiner's findings of fact do not credit any evidence inconsistent with a refusal."; "the Hearings Examiner's Order is "unjust and unreasonable". (NOTE: cross-reference Section 14, IX fatal accidents)
Serrechia v. Beecher, 01-E-0017, (Rockingham, Coffey, 6/11/01) AFFIRMED
Arrested for DWI; advised of ALS rights; petitioner agreed to submit to breath test; petitioner blew insufficient air into Intoxilyzer on seven attempts, causing insufficient samples; officer blew into machine himself and it worked properly; DEEMED a refusal; court held that "the record indicates that the officer gave the petitioner ample opportunity to comply with the test, and, although the petitioner claims the machine was malfunctioning …", the evidence supports that the machine was functioning properly.
Robinson v. Beecher, 00-E-543, (Rockingham, McHugh, 6/8/01) AFFIRMED
Plaintiff refused to submit to breath test; Court remanded the case to the DMV for further proceedings to another hearing or simply file a more detailed report; DMV filed a supplemental report; Court, upon review, said report did not sufficiently address the concerns of the court; new court order "directed the DMV to hold a supplemental hearing focusing on the opinion of the police officer that the plaintiff's failure to produce a sufficient breath sample was due to his intentional conduct, not due to any medical condition"; hearing held, supplemental report determined that plaintiff's failed breath test was not due to any medical condition, but rather to intentional conduct; Court held: "the mere fact that the plaintiff has been diagnosed with "shortness of breath" in and of itself does not suggest … that he could not give a breath sample".
Dusseault v. Beecher, 00-E-235, (ND Hillsborough, Barry, 9/27/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff blew insufficient air into Intoxilyzer on three occasions, causing insufficient sample; officer blew into machine himself and it was working properly; DEEMED a refusal; court held that "Mr. Dessault attempted to blow into the intoxilyzer at least three times. At least three times, the intoxilyzer registered that the sample was either insufficient or invalid. Although Mr. Dessault's version of the facts differs markedly from the officers' version as to whether his attempts were feigned, nonetheless, the court finds that the hearings examiner could reasonably reach the conclusions he did".
Poisson v. Beecher, 00-E-108, (Belknap, Smukler, 9/19/00) AFFIRMED
Arrested for DWI; after an altercation, plaintiff was transported to Belknap County House of Corrections; advised plaintiff of ALS rights; plaintiff was yelling and screaming; plaintiff indicated that he did not care what he was being read, insisting only that he be able to speak to the police prosecutor; DEEMED a refusal; court held that "… Officer Wholley testified that he notified the petitioner of his rights while the petitioner was engaging in conduct that could reasonably be construed as an intentional frustration of such notification. He further testified that after the notification he offered the petitioner an opportunity to take a test and that the petitioner declined to respond directly to that request. This evidence is sufficient to support the hearing examiner's finding that the petitioner refused to submit to the breath test", citing Jordan v. State.
Stephen v. Beecher, 00-E-47, (Merrimack, Manias, 7/12/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff asked three times if he would submit to a breath test; plaintiff only stared and would not respond; DEEMED a refusal; plaintiff alleged that he was interrupted and harassed by officer during the reading of the ALS form; court held that "… the Hearings Examiner made no finding that any officer harassed, interfered with, or otherwise, impeded the petitioner's response to the request to submit to a chemical test. The Court finds that the petitioner's failure to either confirm or deny his willingness to submit to a breath test after having been read the ALS form and reading it himself, his request for an attorney, and his willful stare, manifests conduct that constitutes refusal to submit", citing Jordan v. State. (NOTE: cross-reference to Sections III and IV of grounds for stop and Section I of probable cause)
Somero v. Beecher, 00-E-51, (SD Hillsborough, Hampsey, 6/12/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; after 30 attempts to blow into machine, DEEMED a refusal; plaintiff indicated that he was trying to take the test but was nervous; no medical condition was present which may have prevented plaintiff from blowing properly into machine; court held that "The examiner heard the petitioner's testimony on this issue, as well as the officer's testimony regarding his prior experience with persons who failed to give adequate breath samples. It is apparent that he gave more weight to the officer's testimony … Thus, the examiner, based on the evidence before him, determined that the petitioner's actions constituted a constructive refusal of the breath test. This finding is amply supported by the record and was not unreasonable". (NOTE: cross-reference to Section II of issues involving chemical tests)
Ehrbar v. Beecher, 99-E-369, (Merrimack, Manias, 4/7/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff became highly agitated, yelled obscenities, threatened to call her attorney and repeatedly requested to call her husband; DEEMED a refusal; "The evidence clearly establishes that the petitioner refused to submit to a breath test by her words and her actions. While it is undisputed that the petitioner suffered extreme mood swings during the period in question, the Court credits Officer Fiorello's testimony that the petitioner understood her rights as he explained them … the petitioner became most clearly agitated following Officer Fiorello's explanation of the field tests, and the petitioner's informed consent rights on the ALS form. The Court therefore finds by a preponderance of the evidence that the petitioner made a conscious decision not to submit to the requested breath test".
Talbott v. Beecher, 99-E-680, (Rockingham, Galway, 3/3/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff claimed that he did not understand rights and would not sign anything without talking to his attorney; trooper allowed plaintiff to speak with his attorney, who advised trooper that plaintiff would not take test, "but I'll let him tell you that"; plaintiff continued to refuse to sign form; DEEMED a refusal; although failure to sign form is not "in and of itself" a refusal to submit to a test, court held that plaintiff's entire conduct amounted to a refusal; "… the petitioner repeatedly refused to sign the acknowledgement, even after Trooper Vetter informed him that such refusal would be considered a refusal to take the test. In further support, Mr. Talbott informed the Trooper that he would not sign anything without talking to an attorney, being informed that his refusal to sign would be considered a refusal to take the test. He spoke to the lawyer, and after speaking to the lawyer privately, he refused to sign the form. For the purposes of this review, the communication between the lawyer and Trooper Vetter is not considered", citing Jordan v. State.
Tyler v. Beecher, 99-E-41, (Cheshire, Arnold, 11/29/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; advised of requirements of 20-minute waiting period; after being advised, plaintiff put hands and glasses in mouth; 20-minute waiting period started over again; plaintiff coughed several times; DEEMED a refusal; court held that refusal was proper under the totality of the circumstances, citing Jordan v. State and Wensley v. Director, DMV. (NOTE: cross-reference to anonymous complaints section)
Law v. Beecher, 99-E-202, (SD Hillsborough, Hollman, 10/22/99 AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; advised of requirements of 20-minute waiting period; plaintiff brought fingers towards corner of mouth and partially in mouth on two occasions; officer warned plaintiff not to do that again; plaintiff then put fingers in mouth a third time; DEEMED a refusal; plaintiff denied placing fingers in mouth and stated that she only touched the outside of her lips with her fingers; court held that the Hearings Examiner could accept the testimony as he found appropriate and that therefore, plaintiff refused to submit to breath test. (NOTE: cross-reference to Section VI, below)
Flewelling v. Beecher, 98-E-433, (SD Hillsborough, Brennan, 7/30/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; despite several warnings from officers that failure to decide whether to submit to a breath test would constitute a refusal, the petitioner never made a decision; DEEMED a refusal; court held that the Hearings Examiner's decision that "By his delay and refusing to tell the officer he would take the breath test after being warned that his actions would be considered a refusal, the Respondent refused to submit to the BAC test when requested by the officer", was not unreasonable or unlawful. (NOTE: cross-reference to Section II of grounds for stop, Section I of probable cause and Section IV of procedural issues involving ALS cases)
Kaboub v. Beecher, 99-E-116, (Rockingham, Galway, 6/8/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; officers repeatedly asked plaintiff to submit to a breath test; plaintiff remained silent; DEEMED a refusal; court held that "the plaintiff met these inquiries with a demand to use the bathroom. Subsequently, the plaintiff chose to remain silent because the officers would not allow him to use the bathroom. The officers then informed the plaintiff that his silence would be interpreted as a refusal if he did not give a verbal response. The plaintiff chose to remain silent". (NOTE: cross-reference to Section I, above, and Section II of procedural issues involving ALS cases)
Purvis v. Beecher, 98-E-115, (Strafford, Nadeau, 2/25/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff requested to submit to breath test; plaintiff appeared confused and kept asking officer what she would do; could not decide; after 45 minutes, DEEMED a refusal; court held that "… the petitioner did not manifest a decision not to cooperate; rather he appeared to be genuinely confused and unable to make a decision. Officer Tutt testified that the petitioner was polite and courteous throughout the encounter, asked to call his attorney to help him decide, and asked Officer Tutt numerous times what she would do. Although the facts do not support a finding that petitioner intentionally made a 'mockery of the implied consent laws' by refusing to decide, the court nevertheless finds that his actions amount to a refusal", citing Jordan v. State, Wensley v. Director, DMV and Harlan v. State.(NOTE: cross-reference to illegal detention and section involving back of ALS form)
Finan v. Beecher, 98-E-437, (Rockingham, Galway, 1/26/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; on first test sequence, plaintiff blew a .09; plaintiff ran to sink which was located 8-9 feet away; officer warned plaintiff not to drink any water from sink; plaintiff ignored him and drank some water; DEEMED a refusal; court held that "the plaintiff's actions were a deliberate disregard of the officers instructions not to place anything in his mouth, and not to spit. The plaintiff's actions were also a deliberate disregard of the testing procedure, and a deliberate interference with accurate testing and completion of the test sequence. These activities intentionally prevent compliance with the regulations and administration of the test and constitute a refusal", citing Jordan v. State.
Woody v. Beecher, 98-E-312, (Merrimack, Smukler, 12/14/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff given several opportunities to provide a sample but did not blow into machine with enough air; officer believed the attempts made by plaintiff were "feigned"; DEEMED a refusal; court held that "Even if the petitioner did not explicitly refuse, Officer Baker's testimony was sufficient to support a determination that the petitioner intentionally prevented accurate testing by not attempting to blow into the machine … It is true that the evidence does not specify that the machine was accurately reading the amount of pressure that the petitioner was blowing. However, Officer Baker's testimony that the petitioner was not blowing into the machine at all is a sufficient evidentiary basis to support the respondent's finding in the absence of such specificity".
Flood v. Beecher, 98-E-185, (Merrimack, McGuire, 8/19/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff given at least 10 opportunities to provide a sample but was not blowing into the machine properly; DEEMED a refusal; plaintiff alleged that Intoxilyzer 5000 was not functioning properly so he could not be considered to have refused to submit to breath test; court held that "the hearings examiner found that the petitioner's conduct effectively prevented the completion of a breath test, constituting a constructive refusal. This is legally consistent with the holding in Jordan v. State …".
Enright v. Beecher, 98-E-24, (Cheshire, Arnold, 7/8/98) AFFIRMED
arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to blood test but wanted that agreement in writing, which the police officer refused to do; DEEMED a refusal; court held that "the plaintiff's refusal, however, to sign the ALS form, particularly when the police had indicated a willingness to concede to plaintiff's preference to a blood test, cannot be construed as anything other than a refusal. By the plaintiff's own admission, he was unwilling to do anything unless there was a written agreement for a blood test. The Court finds the plaintiff's behavior to be consistent with a refusal to submit to testing rather than a failure to cooperate in the completion of the ALS form. In the case before the Court, the plaintiff clearly manifested a decision not to cooperate".
Maciejewski v. Beecher, 98-E-15, (Strafford, Mohl, 4/22/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff given 50 to 60 opportunities to render a sample in a 45 minute period; DEEMED a refusal; court stated that "the Intoxilyzer 5000 was certified and in proper working order. In fact, it functioned several days before and after plaintiff's test date. Plaintiff was physically able to provide a sample yet failed to do so in an extraordinary fifty to sixty attempts. Moreover, plaintiff banged his face on the Intoxilyzer's mouthpiece, engulfed it with his mouth on another try, and bent a tube on the machine in yet another attempt. Not once did plaintiff provide a reason for his inability to provide a breath sample. He was at one point warned that continued failure would be deemed a refusal", citing Jordan v. State. (NOTE: cross-reference to Section II, above)
Young v. Beecher, 98-E-2, (Merrimack, Manias, 4/22/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; 20-minute waiting period had to be started again after plaintiff placed pen in mouth; plaintiff gave one sample and then was given eight more opportunities to give the required sample before being DEEMED a refusal; court stated that "petitioner testified that he performed the test as well as he could but that he was suffering a panic attack. He admits that he did not inform the police officers of the panic attack at the time of his arrest and breath test. Based on all the evidence, including evidence regarding petitioner's alleged panic attack, the hearings examiner concluded that petitioner's conduct amounted to a refusal", citing Wensley v. Director, DMV and Jordan v. State. (NOTE: cross-reference to Section V of procedural issues involving ALS cases)
Dame v. Beecher, 97-E-189, (Belknap, Perkins, 1/2/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff asked to submit to breath test and then blood test when it was determined that Intoxilyzer was not running properly; plaintiff agreed to submit to a test on at least four occasions and refused to submit to a test on at least five occasions; process lasted for over an hour before DEEMED a refusal; court stated that "there is substantial support for the hearing officer's factual conclusion the plaintiff was uncooperative throughout the procedure and his implied conclusion that she was manipulating the process to intentionally frustrate the request to take the test", citing Wensley v. Director, DMV.
Ardita v. Beecher, 97-E-58, (Grafton, Smith, 10/20/97) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff mulled over the request for several minutes but did not expressly refuse; plaintiff asked again to submit to breath test, fifteen minutes later; plaintiff failed to respond; DEEMED a refusal; court held that "… petitioner did not manifest, through her conduct or words, any intention to refuse consent to undergo blood alcohol testing. In light of the serious consequences attendant to refusing a blood alcohol test … refusal should not be inferred absent clearly uncooperative behavior", citing Wensley v. Director, DMV.
Davis v. Beecher, 97-e-232, (Merrimack, Manias, 10/17/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff initially agreed to submit to breath test but became uncooperative; DEEMED a refusal; court held "the examiner found that there was a struggle to arrest the petitioner, the petitioner was initially unresponsive to the police officers' requests to sign the form, and the petitioner soon became agitated with the police officers. The petitioner then put the form behind his back, thus forcing the police officers to retrieve it from him. Finally, the examiner found that there was no indication that the petitioner requested the test"; court concluded that "… the petitioner's entire conduct, and not merely his consent to the test, showed that he refused to submit to the test", citing Jordan v. State, Harlan v. State and Wensley v. Director, DMV.
Fournier v. Beecher, 96-E-111, (ND Hillsborough, Sullivan, 7/31/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; during 20-minute observation period, coughed; observation period started over and plaintiff was warned about not doing that again; plaintiff smiled at officer during second observation period, looked at her and burped loudly, then coughed; DEEMED a refusal; plaintiff claimed that observation period should not have been started again as health regulations do not prohibit coughing; court stated "… the regulation does not indicate that the listed items are the only actions that will warrant restarting the observation period. Based upon Flynn's training, she learned that coughing can contaminate a breath sample"; court further stated that "he blatantly squandered his second chance when he smiled while he belched and coughed right at the end of his second observation period", citing Jordan v. State.(NOTE: cross-reference to Section I of procedural issues involving ALS cases)
Cheney v. Beecher, 96-E-28 (Merrimack, Manias, 4/18/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to sign form and was DEEMED a refusal; plaintiff alleged that merely refusing to sign form was not sufficient to show refusal, citing Wensley v. Director, DMV; court held that "Petitioner's reliance on this case is misplaced, however, where the circumstances indicate he did much more than only refuse to sign the ALS form. Moreover, the record shows that the petitioner did not retract a refusal to take the test, but instead began yelling that he wanted a blood test. The hearings examiner found entirely reasonable the officer's interpretation of these demands as manifesting a continued refusal by the petitioner to take the BAC test".
Spears v. Beecher, 95-E-430-B, (SD Hillsborough, Murphy, 2/1/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; during 20-minute observation period, plaintiff placed hand to mouth; observation period started over and plaintiff was warned about not doing that again; plaintiff placed hands to mouth and was DEEMED a refusal; plaintiff claimed that his actions were involuntary not intentional but police officer claimed it was intentional in his opinion; court held that there was sufficient evidence to show that plaintiff's actions were intentional; "the fact that the plaintiff gave conflicting testimony to the effect that his actions in placing his fingers to his lip the second time were involuntary only raises a factual issue, one which was resolved against him by the hearing officer".
Copley-Foss v. Beecher, 95-E-48, (Merrimack, Arnold, 4/4/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; during 20-minute observation period, plaintiff lost control and assaulted officer, bending his thumb back; DEEMED a refusal; plaintiff claimed that she never verbally refused to take test and that she was unaware of her actions; court determined that officer was justified in deeming plaintiff a refusal; "a review of the petitioner's entire conduct the evening in question supports the officer's determination. To hold otherwise would allow any individual suspected of driving while intoxicated to consent to a test to show alcohol or drug concentration and then to act out prior to the test claiming it was due to emotional instability and thwart the purpose of the implied consent law".
House v. Turner, 95-E-25, (Merrimack, Arnold, 3/6/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test and signed form; plaintiff then began to waiver and indicated that she had taken prescription drugs and was concerned as to the effect on a breath test; officer informed plaintiff that drugs would have no impact on results; plaintiff wanted officer to put that in writing; he refused and she would not take test; DEEMED a refusal; "while the petitioner might have submitted had the officers provided her with a written confirmation that prescription drugs would not impact the test results, the officers were under no duty or obligation to provide the petitioner with a written statement". (NOTE: cross-reference to Section II of grounds for stop and Section I of probable cause)
Leone v. Turner, 94-E-111, (Carroll, O'Neill, J., 12/29/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; once determined that Officer Manchester was only Intoxilyzer operator available, plaintiff advised that he would take a breath test but not by Officer Manchester; was DEEMED a refusal at that point; plaintiff indicated that he did not understand ALS rights; court found plaintiff's testimony not credible and stated there was a proper refusal. (NOTE: cross-reference to Section II of grounds for stop)
Davis v. Turner, 94-E-59-B, (SD Hillsborough, Hampsey, 5/19/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to sign form; plaintiff was extremely uncooperative and would not answer any questions; DEEMED a refusal; court stated that "the overall behavior by Mr. Davis was interpreted as a refusal" and stated that it was a proper refusal. (NOTE: cross-reference to accident section)
Cole v. Turner, 93-E-662, (Merrimack, McGuire, 1/3/94) AFFIRMED
Arrested for DWI; plaintiff advised of ALS rights; plaintiff agreed to submit to breath test; plaintiff instructed on how to blow into the machine; stopped blowing before machine could get reading; this happened eight times before plaintiff was DEEMED a refusal; court held that "petitioner refused to submit to the breathalyzer test by repeatedly and intentionally failing to blow into the Intoxilyzer machine for a sufficient period of time to register his blood alcohol content", citing Jordan v. State. (NOTE: not a detailed or particularly helpful written opinion!)
Kolinsky v. Turner, 93-E-587, (Merrimack, Arnold, 12/20/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff kept stating that she did not understand, could not read, and did not speak English; officer explained form to plaintiff twice and told her to review the form herself as well; plaintiff continually stated that she did not understand; DEEMED a refusal; officer believed plaintiff was "playing the system" and intentionally did not cooperate; plaintiff indicated that she did not understand as she was quite stressed and that officer did not take the time to make sure she understood; court credited officer's testimony and that "he reasonably concluded that petitioner's conduct constituted a refusal".
Letares v. Turner, 93-E-251, (Merrimack, Manias, 8/19/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test and signed form; plaintiff did not blow enough air into machine on four separate occasions and DEEMED a refusal; plaintiff indicated that he tried to cooperate and that mouthpiece was defective; court did not find plaintiff's testimony credible; "the plaintiff's conduct in stopping blowing before the machine had enough air was intentional and tantamount to a refusal, citing Jordan v. State.
Bergeron v. Turner, 93-E-156, (Merrimack, McGuire, 5/28/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test and signed form; plaintiff did not blow enough air into machine on three separate occasions and after fourth attempt, DEEMED a refusal; court held that "after hearing … the plaintiff, Brian Bergeron, refused to submit to the breathalyzer test in that he intentionally failed to perform the test". (NOTE: this is not a detailed or helpful written opinion!)
Gibbons v. Turner, 92-E-179, (Grafton, Smith, 3/24/93) AFFIRMED
IMPLIED CONSENT NOT ALS:
arrested for DWI; advised plaintiff of implied consent rights; did not reply to any of the rights read and stated "I am not refusing the test. I am not saying anything"; DEEMED a refusal; plaintiff argued that he did not refuse to take a test; "the Court finds that while Gibbons was well within his rights in refusing to make statements to the officer, his failure to cooperate in giving a sample constituted refusal to submit to the procedure".
Newman v. Turner, 93-E-16, (Strafford, Fitzgerald, 3/15/93) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff agreed to submit to breath test; was advised of 20-minute observation period; coughed three separate times and was warned that if he kept doing it, would be DEEMED a refusal; coughed again and DEEMED refusal; officer testified that plaintiff did not cough at any other time and it appeared he was deliberately delaying test; Court held that "… the State has proven, not only by probability, but by clear and convincing evidence, that Petitioner's tactics were designed to obstruct the conduct of the test".
Smart v. Turner, 92-E-137, (Strafford, Barry, 11/13/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff agreed to submit to breath test; advised of 20-minute observation period; plaintiff continually put hands to his mouth and looked straight at officer and burped; officer felt this was intentional and DEEMED a refusal; plaintiff stated that he was cooperative and burped accidentally; "in this instance, the choice of the plaintiff to engage in uncooperative conduct and conduct designed to frustrate the procedure was his to make and he must suffer its consequences".
Lefebvre v. Turner, 92-E-405-B, (SD Hillsborough, Dalianis, 10/8/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff agreed to submit to breath test; officer gave plaintiff eight opportunities to blow a complete sample into the machine but she did not do so; officer felt she was deliberately not blowing properly but transported her to another department and the same thing happened four times; DEEMED a refusal; "given that she was able to give a sufficient sample to yield a .16 for the first half of one test, she was clearly capable of blowing into the machine. This Court can only find that her failure to blow was intentional. Officer Masella went much farther than he had to before citing her for refusal".
Yee v. Turner, 92-E-583, (ND Hillsborough, Murphy, 8/24/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff agreed to submit to breath test; officer gave plaintiff five opportunities to blow into the machine but every time just spat into it; DEEMED a refusal; plaintiff brought in medical records indicating that he had a breathing problem as a result of lung surgery; "his contention that his physical condition was such as to prevent compliance with the officer's instruction to blow 'steadily and strongly' into the machine is disingenuous at best as he was given every opportunity to raise the issue of his physical condition and failed to do so".
Roberg v. Turner, 92-E-329, (Rockingham, McHugh, 8/20/92) AFFIRMED
IMPLIED CONSENT NOT ALS: Arrested for DWI; advised plaintiff of implied consent rights; plaintiff agreed to submit to breath test; 20-minute observation period explained to plaintiff; burped three times; DEEMED a refusal; court held that "… the arresting officer did, in fact, give the plaintiff three separate opportunities to take the breathalyzer test offered, but each time the plaintiff successfully foiled those attempts by belching or burping in direct violation of the commands to him by the officer not to engage in such conduct", citing Jordan v. State. (NOTE: there was a detailed discussion of wording on old Implied Consent form which has no further value!)
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VI. Miscellaneous

Kasynak v. State of N.H., 10-E-0118, (Lynn, 7/8/10), AFFIRMED
ALS refusal. Petitioner argued that she was not properly advised of ALS rights because officer did not inform her that if she refused, she would suffer a 2 year license suspension. No inaccurate information provided. Argued she should have been directed to back of form. Also requested reduced suspension term due to treatment and sobriety since incident. No statutory authority to support that driver must be told length of suspension before refusal. Petitioner provided with form and could have read it before refusing. Court had no authority to reduce suspension term as such is mandatory.
Marique v. Beecher, 04-E-366 (Rock, Morrill, 10/28/04) AFFIRMED
Police officer checking for suspicious activity; observed a pick-up truck parked on the side of the road with 2 occupants inside; Petitioner, the driver, had a strong odor of alcohol, eyes were red & glassy & face was red & flushed; failed FST's & a preliminary breath test (PBT) with a .133 BAC; arrested for DWI, advised of ALS rights; refused to take a blood test APPEAL: Hearings Examiner failed to identify Petitioner at the hearing; State did not prove "way"; police officer failed to outline accurately the ALS rights; Petitioner was arrested in Derry by a Londonderry officer. COURT held: "The State met its burden for identification; and proving of "way"; that the ALS form spelled out the rights; containing Petitioner's signature proving satisfactorily that he was adequately informed of his rights; on the jurisdictional issue the Court refers to Lopez AFFIRMED
Hurley v. Beecher, 04-E-242, (Merrimack,Fitzgerald,11/10/04) AFFIRMED
Petitioner performed FST's and a PBT resulting in a BAC of .15; arrested for DWI; advised of ALS rights; refused to take a breath test; Petitioner argued "the evidence . . .does not support the findings that he had driven or was is actual physical control of his vehicle." COURT held: "In light of all the testimony given at the hearing and in light of the "reasonable inferences therefrom." ". . . Hearings Examiner's conclusion was just and reasonable.
Lucey v. Beecher, 04-E-215, (Rock, Morrill, 09/03/04) AFFIRMED
Police officer received communication from dispatch to be on alert for Petitioner, who had been drinking, and, had HO status; Petitioner was stopped by police; his eyes were bloodshot, movements slow, odor of alcohol; refused tests. Arrested for DWI and Operating while an HO; advised of rights. COURT held: "as in Jacobs the Hearings Examiner concluded that the police officer had reasonable grounds to believe Petitioner was operating under the influence.
Barton v. Beecher, 04-E-0050,(ND HILLS,Abramson,09/17/04)AFFIRMED
A detective on patrol observed a vehicle illegally low to the ground; with an extremely loud muffler; he approached the vehicle and detected a strong odor of alcohol coming directly from the driver. Petitioner had glassy, bloodshot eyes, slurred speech, admitted to having had 4 drinks; failed FST's; arrested for DWI; advised of ALS rights; refused the breath test. Argued that the HE erred in failing to make a finding of fact that he'd had a previous DWI …which resulted in a penalty enhancement; COURT held: "The length of … suspension is … based on Mr. Barton's driver record and in accordance with the statutes and rules.
Chace v. Beecher, 04-E-003, (Rockingham, McHugh, 05/27/04) AFFIRMED
Arrested for DWI; Petitioner pled to the underlying DWI offense in order that the ALS violation not be filed with the DMV. COURT held: "While the practice raises certain questions, it does not constitute a due process violation … an exercise of discretion … does not equate to a violation of due process." "The Court also affirms … that based upon the criteria of the appeals statute, the State has met its burden." AFFIRMED
Graham v. Beecher, 03-E-196, (Straf., Mohl, 03-01-04) AFFIRMED
Arrested for DWI, informed of ALS rights; refused testing; Petitioner claimed she was not informed of her Miranda rights and had several issues concerning the DMV's abuse of its discretion; COURT held: absent a transcript "there is no indication of any bias … in favor of … police department." "Without the certified record available for the court's review, the Petitioner fails to produce any support for her arguments … Court also finds the Examiner's findings of fact were consistent with the evidence presented.
O'Connell v. Beecher, 3-E-219, (ND Hillsborough, Mangones, 09/22/03) AFFIRMED
Arrested for DWI; Petitioner claimed that the case should be a refusal not a test over because she initially refused when the officer treated it as a serious injury felony ALS under RSA 265:93; and was "coerced into taking the test much later". Court held: The felony ALS refusal under RSA 265:93 was not a recognized refusal under RSA 265:92. When the injuries were recognized as not being serious, the officer properly applied the RSA 265:87 and RSA 265:92 procedures. (See cross-reference Section 9, II Certification/accuracy of Intoxilyzer 5000;Section 9, III delay in obtaining breath test results)
Small v. Beecher, 02-E-438, (ND Hillsborough, Lynn, 12/16/02) AFFIRMED
Arrested for DWI;informed of implied consent rights; breath test requested; petitioner responded that he would take the test "because he had to " … officer informed him that he did not have to take the test and that it was his choice whether to take it or not. Petitioner … "didn't want to take the test." … deemed a refusal; petitioner contends that saying he "didn't want to take the test" was not the same as saying he would not take the test. Court held: "The problem with this thesis … is belied by petitioner's conduct …; the officer correctly interpreted petitioner's statement as a refusal to take the test.
Chouinard v. Beecher, 02-E-150, (Rockingham, Hollman, 8/5/02) AFFIRMED
Arrested for dwi; advised of ALS rights, petitioner initially agreed to submit to a breath test; but would not blow enough air into machine to get sample; after 15 attempts, DEEMED A REFUSAL; petitioner claimed "the State was required to provide the intoxilyzer machine's certification … to show that the intoxilyzer machine failed to provide any test results"; Court held: "Since this was a case of refusal, the intoxilyzer machine's test record and certification were irrelevant and not necessary for the Examiner to make a reasonable and lawful decision." See Jordan v. State.
Millar v. Beecher, 01-E-167, (Carroll, Nadeau, 11/6/01) AFFIRMED
Certified as an Habitual Offender; petitioner had a previous REFUSAL and questioned the implied consent law mandating a 2-year additional suspension after decertification; court held it "has no discretion to review the decision of the Division in this case since a license suspension for a refusal to submit to a breath test must run consecutively to any other license suspension";"petitioner failed to appeal the finding that she had refused the breath test at the time that decision was rendered and cannot do so now." (NOTE: Section 13, III HABITUAL OFFENDER DECERTIFICATION)
Healey v. Beecher, 01-E-110, (Carroll, Nadeau, 9/11/01) AFFIRMED
Arrested for DWI; plaintiff refused to submit to a breath test; plaintiff argues that his status as an habitual offender did not toll the running of his 2-year ALS license suspension and that his mere status as an habitual offender, cannot constitute a penalty for the purposes of RSA 265:92;Court disagrees "applying the broad definitions of the word "penalty" as described above, it is clear that the petitioner's status as an habitual offender constitutes a penalty under RSA 265:92 II." ALS suspension for a refusal can not run concurrently with Habitual Offender status.
Martel v. Beecher, 01-E-131, (SDHillsborough, Galway, 9/18/01) AFFIRMED
arrested for DWI, plaintiff argued that there was not a refusal to take the test but a refusal to sign the form; Court held: "The findings of the hearings examiner of a refusal are supported by the record" and "the findings of fact are consistent with the evidence and determination and therefore the hearings examiner's decision is AFFIRMED." (NOTE: cross-reference to Section 7, I probable cause)
Spero v. Beecher, 01-E-411, (Rockingham, Hollman, 10/25/01) AFFIRMED
Arrested for DWI; petitioner advised of his ALS rights; "petitioner … contend(s) the Examiner's decision was unreasonable because the State did not prove petitioner was arrested for DWI at the time he was first asked to submit to a BAC test" ;the Examiner's findings clearly indicate "that Petitioner's license was not suspended until after he refused BAC testing subsequent to his DWI arrest." Court held "This evidence is sufficient for the Examiner to have concluded as he did."
Law v. Beecher, 99-E-202, (SD Hillsborough, 10/22/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff DEEMED a refusal; plaintiff argued that police officer who signed ALS form was not a certified breath test operator, thus making her refusal invalid; court held that "Officer DiNapoli, a certified operator, deemed petitioner a refusal and indicated this conclusion to Officer Julian. Officer Julian then recorded the refusal and attested that it took place … The Court agrees with the examiner's conclusion that the officers' conduct in deeming and recording petitioner's refusal was in accordance with the methods prescribed in He-P 2207.03(b).(NOTE: cross-reference to Section V, above)
Carey v. Beecher, 99-E-400, (Rockingham, Murphy, 10/12/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff claimed that she was denied due process because police officer refused to accompany her to hospital for an independent test; court held that "Under RSA 265:86 and RSA 265:87, I(a) and (b) a plaintiff's 'right to have a similar's or 'additional test' only arises when a test has been taken at the direction of the law enforcement officer. In this case, the record indicates that the plaintiff refused to take a breath test … Therefore, she did not have a statutory right to an additional test. As such, Officer Cronin did not violate her due process rights by refusing to accompany her to Exeter Hospital". (NOTE: cross-reference to Sections I and III, above)
Guimond v. Beecher, 99-E-279, (ND Hillsborough, Sullivan, 8/27/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test; plaintiff claimed that he was denied due process because the police officer failed to produce the certification papers for the breath test instrument to show it was working properly; "Since the petitioner in this case refused to take the test, the court finds that the certification papers for the breath alcohol machine are irrelevant". (NOTE: cross-reference to Section II of grounds for stop; Section I of probable cause and Section V of procedural issues involving ALS cases)
Tousley v. Beecher, 96-E-11, (Cheshire, Mangones, 4/26/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff initially requested to take breath test but machine not working; plaintiff requested to take blood test; once at hospital, plaintiff declined to take blood test, asserting a fear of needles; plaintiff alleged that he was not advised of release of liability form utilized by hospital therefore not properly advised of ALS rights and consequences; court stated that such a form may be a collateral consequence but did not vitiate implied consent procedure; court also noted that "… defendant has neither alleged nor established that he had been discouraged from taking the blood test because of the hospital's release form. Apparently, defendant was not aware of its provisions at the time he declined to take the blood test". (NOTE: cross-reference to Section I of procedural issues involving ALS cases)
Fraser v. Turner, 94-E-329, (Rockingham, Coffey, 8/30/94) AFFIRMED
Arrested for DWI; officer asked plaintiff to read aloud the first paragraph of the ALS form and once having ascertained that plaintiff could read, instructed plaintiff to read the rest of the form to himself, giving him "all the time he needed"; plaintiff refused to submit to test and signed form; court stated there was a proper refusal. (NOTE: the issue was primarily focused on the length of the revocation NOT the way the rights were given; also cross-reference to section involving back of ALS form)
Cerretani v. Turner, 93-E-397, (Merrimack, McGuire, 9/16/93) REVERSED
arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to test and signed form; plaintiff indicated that he overheard officer joking about the Intoxilyzer and saying it was not functioning properly, etc.; court found that refusal was NOT valid; "the Court finds that Officer Paul Lussier implied in the presence of Peter Cerretani that the breathalyzer might be unreliable. This was the reason for Cerretaniz's refusal". Under these circumstances, … refusal was not valid …".
Moriarty v. Turner, 93-E-347, (Merrimack, Manias, 8/17/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff refused to submit to breath test and signed form; plaintiff observed another person blow into the machine and heard the operator indicate that the machine might be broken; plaintiff claimed that is why he refused and refusal should not be valid; court held that plaintiff should have taken the test and that refusal was valid; "there is no serious issue as to whether the machine was actually broken that night. The only issue is whether the plaintiff believed it was malfunctioning and, if he did, was that belief sufficient to justify his refusal. Furthermore, the comments of the other officer were not sufficient to justify the plaintiff's conclusion that the machine was broken. Even if the plaintiff had doubts about the condition of the machine his proper recourse was to submit to the test and then challenge whether the test was 'properly administered' pursuant to RSA 265:91-b II(d)". (NOTE: cross-reference to Section I of probable cause)
Zorzy v. Turner, 93-E-116, (Merrimack, Manias, 6/4/93) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to submit to blood test and was transported to hospital; nurse informed plaintiff that he needed to sign waiver form before blood could be drawn; plaintiff refused to sign form and hospital declined to draw blood; treated as refusal; court held that "plaintiff's 'refusal' was based on his belief and concern that he had to waive certain rights in order to submit to the test. Even if the form contained a waiver legally equivalent to the immunity granted in RSA 265:85-I, the plaintiff could not be expected to know this or to make such a determination at the time he was confronted with the waiver form"; no free and voluntary refusal.
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