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Superior Court Cases

Jurisdictional Issues Involving ALS Cases
Klein v. Beecher, 211-2010-CV-00397, (O'Neill, 3/11/11), REVERSED
ALS refusal. First officer gave field sobriety tests and made arrest for DWI. Second officer read the ALS form and received refusal. First officer witnessed reading of ALS and signed form in front of justice of the peace. Petitioner argued lack of jurisdiction and that same officer who read form was required to swear to form in front of JP. Court reversed and held that plain meaning of RSA 265-A:14 and RSA 265-A:30, I required the officer who read form and witnessed refusal to appear before JP. Also found that wording on form supports statutory language and that form has force of law. Sworn report must be signed by officer who read form and that DOS rules, statutes, and paragraph V of form require such.
Parrington v. Director, 09-E-0220, (Groff, 12/7/09), AFFIRMED
ALS challenging jurisdiction. Officer signed ALS form before presenting it to justice of the peace. Also challenged validity of 20 minute observation period before breath test because officer talked on phone during the period. Jurisdiction proper because officer required only to appear before JP and swear to the form, not sign the form in front of JP. Although at times officer turned back to Petitioner during wait, nothing in regulation requires officer to stare at test subject the entire time.
McAllister v. Director, 08-E-00354, (Merrimack, Nicolosi, 03/13/09), AFFIRMED
ALS as a result of a fatal motorcycle crash. Petitioner driving motorcycle and failed to yield right of way when turning onto roadway. Crash killed oncoming motorcyclist. Arrested for felony Aggravated DWI. Police read misdemeanor and felony ALS forms. Petitioner refused chemical test. Petitioner contended that the Department of Safety did not have jurisdiction because the initial request for a blood test was made in conjunction with a felony arrest where the Petitioner had no right to refuse a blood test. Held that the decision finding jurisdiction not unreasonable because State not foreclosed from pursuing the misdemeanor ALS process where the arrest is for an alcohol related felony and the Petitioner is initially informed that he has no right to refuse a blood test. No statute or case supported Petitioner's argument.
Armstrong v. Beecher, 08-E-0379, (Merrimack, Conboy, 02/18/09), AFFIRMED
Respondent stopped for erratic driving. Made an illegal u-turn. Arrested after field sobriety tests. Officer read administrative license suspension rights and Respondent refused a test. Later that night, Officer appeared in front of a lieutenant at the police department and swore to the ALS form. Officer did not give the Respondent the pink copy of the form but personally delivered a copy to the Respondent a few days later. Respondent alleged 2 issues on appeal. First, that the suspension is invalid because he did not immediately receive his copy of the ALS form. Second, that the form was not properly sworn to because the Officer could not specifically identify the lieutenant that he appeared before. On issue of service of form, Court held that because the Respondent failed to demonstrate that he was prejudiced by Officer's failure to immediately serve him the form, such did not invalidate suspension. On sworn report issue, court held that although Officer could not remember to whom he swore his oath or recognize JP's signature, DSMV 426 properly sworn to because Officer established that he appeared and swore an oath before a justice of the peace.
DONOVAN v. BEECHER, 07-E-0503 (Merrimack, Conboy 02/25/08) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged that ALS form was not timely submitted after receipt and time began when department received the blood test results. Police Department received it on 09-12-08. Officer testified he received it on 09-18-08, swore to it and hand delivered it on 09-24-08 the fifth working day after the swearing. Saf-C 2803.03 requires that ALS form be submitted within 5 working days. Court ruled that five working days began when officer was notified of results, and not when police department was.
KEROUAC v. BEECHER, 07-E-0421,(ND Hillsborough, Abramson, 02/22/08) AFFIRMED
Arrested for DWI, had an ALS hearing and appealed after suspension was sustained,. Petitioner alleged that hearings examiner erroneously found that he had jurisdiction alleging the officer's failure to sign ALS form even though properly swearing to it, was fatal. Court ruled that the hearings examiner was correct and that law and rule did not require subscription and that the decision would not be overturned. Motion for reconsideration denied on 05-21-2008. Case currently on appeal to NH Supreme Court.
Duncan v. Beecher, 01-E-505, (Rockingham, Hollman, 12/12/01) AFFIRMED
Petitioner was not given a sworn copy of the notice of suspension" he received a copy of the form, which had not yet been sworn to" and argues that the officer was required to give him a sworn copy of DSMV 426" the court disagrees. RSA 265:91-a only requires that the officer provide a sworn copy of the notice of suspension to the DMV, not to the petitioner.
Drew v. Flynn, 01-E-114, (Merrimack, McGuire, 3/21/01) AFFIRMED
Arrested for DWI" petitioner refused breath test" did not request ALS hearing" appealed ALS suspension to Superior Court alleging ALS statute unconstitutional and that ALS hearing would not satisfy constitutional due process requirements. Court held: "Based upon the holding of Bragg, the Court cannot declare that the ALS hearing process would not have afforded Mr. Drew with due process. Moreover, because … has refused to avail himself of this statutory review and appeal process, this Court, unlike the Supreme Court in Bragg, cannot determine whether the conduct of a particular ALS hearing did or did not comport with the requirements of due process … Finally, the Court agrees with the respondent's argument, to which Mr. Drew did not respond, that utilization of the statutory ALS review process, through the Department of Safety, is a jurisdictional prerequisite for appealing to the Superior Court."
Ward v. Beecher, 00-E-361, (Merrimack, Fitzgerald, 2/13/01) AFFIRMED
Arrested for DWI "breath test 0.14" alleged arrest was wrongful because arresting officer from another town and there was no written compact between towns pursuant to RSA 105:13" also, alleges no reasonable basis for stop. See Lopez v. Director. Court held: Because both of petitioner's contentions are based on criminal law, the constitutionality of the stop and arrest have no bearing on the decision to sustain a valid license suspension under RSA 265:91-a. (Note: cross-reference to Section I, III issues involving "way" " Section 9, III Delay in obtaining breath test results" Section 8, I Informing of ALS rights)
Lievens v. Beecher, 00-E-185, (Rockingham, Abramson, 6/21/00) AFFIRMED
Vehicle involved in accident in the town of Derry "driver last seen walking toward the town of Londonderry" Derry officer observed female driver laying in a drainage ditch, roughly 50 feet over the Londonderry town line "officer approached her for safety reasons" arrested for DWI" "The Court finds that Officer Breen arrested the petitioner in Londonderry, without statutory authority to do so. The issue, however, is whether this extraterritorial arrest is fatal to the petitioner's license suspension. A mere technical violation of a statute by the police does not require exclusion of the evidence recovered or dismissal of the charges unless the statute in question specifically provides for such a sanction… The technical violation here, the extraterritorial arrest, was reasonable, occurred in good faith, under exigent circumstances, based on Officer Breen's concern for the petitioner's safety. The Court notes that Officer Breen did not rush over the town line and immediately effect an arrest, but rather spoke with the petitioner to assess her medical condition and called for help… Given that no question would have arisen if the petitioner had been discovered a few steps closer to her vehicle, in Derry, or if Officer Breen had simply followed the ambulance to Elliott Hospital and arrested the petitioner on hospital property (RSA 265:83), the Court is unwilling to elevate form over substance and say she was in some 'safe haven' from arrest by virtue of fleeing the scene of the accident. Furthermore, the petitioner has presented no authority for the propositions that a technically valid arrest is even required for purposes of the ALS law", citing State v. Brown. (NOTE: cross-reference to accident section)
Wright v. Beecher, 99-E-16, (Merrimack, McGuire, 6/14/99) AFFIRMED
Trooper observed vehicle in Concord with flat tire "followed into parking lot to provide assistance" arrested for DWI "plaintiff argued that trooper had no authority to approach him or administer field sobriety tests, pursuant to RSA 106-B:15" court held that "Efforts to assist a disabled motorist 'do not pose any substantial prospect of competitive friction with local police authorities, and police efficiency is obviously served by rendering highway aid in the first opportunity'. Therefore, "whatever the precise scope of RSA 106-B:1, it has no application to the rendering of assistance by a disinterested officer to a disabled motorist", citing State v. Slayton. (NOTE: cross-reference to Section V of procedural issues involving ALS cases)
Morrison v. Beecher, 97-E-201, (Merrimack, Manias, 1/21/98) AFFIRMED
Salisbury officer arrested plaintiff for DWI "plaintiff argued that arrest was illegal because accident occurred in Webster" Salisbury officer was working at a canoe and kayak race in Webster but had not been paid by the sponsor of the race "court held that "under a plain reading of RSA 105:9-a, the source of payment to the officer is not jurisdictional such that the event sponsor's failure to pay the officer would invalidate the officer's authority … Moreover, Sergeant Nason could properly have been employed pursuant to the Mutual Aid agreement between the two towns". (NOTE: cross-reference to accident section and section involving back of ALS form)
Lang v. Turner, 94-E-428, (ND Hillsborough, Conboy, 12/23/94) AFFIRMED
Merrimack officer observed passenger vehicle with commercial plates" concerned that vehicle may be stolen" followed vehicle into Hollis and Amherst" once in Amherst, Merrimack officer observed six separate yellow line violations" contacted Amherst officer pursuant to mutual aid agreement and was told to stop vehicle if he felt it necessary and he would be on his way" Amherst officer arrested plaintiff for DWI" court held that there was a proper request for assistance pursuant to the mutual aid agreement and that said agreement was not a broader grant of authority than RSA 105:13 authorized.
Burbank v. Turner, 94-E-304, (ND Hillsborough, Sullivan, 9/19/94) AFFIRMED
Goffstown officer observed several yellow line violations in his town" activated blue lights in Goffstown but vehicle did not stop until it had crossed into the city of Manchester" Goffstown officer arrested plaintiff for DWI" no question that officer was in "fresh pursuit" but issue whether or not "criminal offense" had occurred in officer's presence pursuant to RSA 614:7" plaintiff argued that yellow line violations were not "crimes" pursuant to RSA 625:9" court held that officer had authority to stop and arrest plaintiff in Manchester, after giving a detailed analysis of all cases which have dealt with the issue. (NOTE: DWI case was lost in Goffstown District Court on same issue" also cross-reference to Section I of issues involving chemical tests)
Facella v. Turner, 94-E-251, (Rockingham, Coffey, 9/22/94) AFFIRMED
Seabrook officer observed several yellow line violations in his town along with drifting within the lane" activated blue lights in Seabrook but vehicle did not stop until it had crossed into the town of Hampton Falls" Seabrook officer arrested plaintiff for DWI" plaintiff argued that stop was not justified pursuant to RSA 614:7, the "fresh pursuit" statute, since no "criminal offense" had occurred in the officer's presence" court held that officer had authority to stop and arrest plaintiff in Hampton Falls, citing State v. Miller.
Welch v. Turner, 93-E-621, (Merrimack, Arnold, 1/20/94) REVERSED
Trooper on-duty in city of Manchester" approached by employee of Dunkin' Donuts advising that vehicle leaving the parking lot was being driven by a person who appeared to be intoxicated" trooper followed vehicle onto roadway and stopped it, approximately 120 yards from Dunkin' Donuts" arrested for DWI" plaintiff stated that trooper had no authority to stop vehicle pursuant to RSA 106-B:15" court held that trooper had no authority to stop plaintiff since "the trooper was not within an area of his jurisdiction at the time he acted" the credibility of the information which he received from the Dunkin' Donuts employee was unsubstantiated, the trooper having no past experience with the informant" no attempt was made by the trooper to obtain authority of or assistance from the Manchester Police Department"" court distinguished facts of this case from Caron v. Turner, cited below. (NOTE: New Hampshire Supreme Court overruled and upheld the State!)
Despres v. Turner, 93-E-264, (Merrimack, Arnold, 10/01/93) AFFIRMED
Rindge officer observed two yellow line violations in his town "activated blue lights in Rindge but vehicle did not stop until it had crossed into the town of Jaffrey" Rindge officer arrested plaintiff for DWI" court held that "the fact that the petitioner failed to stop for approximately six to seven tenths of a mile and only after crossing the town line into Jaffrey does not invalidate the arrest", citing RSA 614:7 and State v. Miller. (NOTE: cross-reference to Section I of probable cause)
Caron v. Turner, 92-E-654, (Merrimack, Manias, 2/12/93) AFFIRMED
New London officer received information from citizen he knows that vehicle in front of him was operating erratically and without taillights" New London officer started in pursuit but did not catch up to the vehicle until it had crossed into the town of Andover, two towns over" New London officer remained in contact with citizen by radio the whole time and when he caught up to the vehicle, he observed that it had no taillights" requested assistance from State Police after attempting to reach officers in both Wilmot and Andover" trooper arrested plaintiff for DWI" plaintiff argued that officer had no authority to stop plaintiff outside of his jurisdiction" court held that there was no mutual aid agreement, there was no "fresh pursuit", no "citizen's arrest", so "having determined that Officer White lacked statutory or common law authority to arrest plaintiff, the question remains whether it is necessary to exclude evidence obtained as a result of an extraterritorial investigatory stop"" court stated that there was a mere technical violation of a statute by an officer acting in good faith under exigent circumstances "therefore, evidence derived from Officer White's extraterritorial stop is not barred by the exclusionary rule". (NOTE: New Hampshire Supreme Court upheld without written opinion.)
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