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Compendium
Superior Court Cases |
 Probable Cause To Arrest/Field Sobriety Tests
- Factors Determining Probable Cause
- Field Sobriety Tests
- Post Arrest Field Sobriety Tests
- Miscellaneous
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| I. Factors Determining Probable Cause |
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Glidden v. Bailey, 219-2011-CV-00035, (Brown, 4/4/11), AFFIRMED
ALS appeal challenging reasonable grounds. Argued that based on evidence as represented on video of stop, insufficient evidence to constitute reasonable grounds to believe Petitioner impaired. Although Petitioner appeared to pass Walk and Turn and said he had an injury that excused poor performance on One Leg Stand, officer observed other signs of impairment that the video did not document. Therefore, Petitioner failed to sustain burden of proof that decision unreasonable. Within hearings examiner's discretion what weight to give evidence. |
Plante v. Beecher, 220-2010-EQ-00038, (Wageling, 10/26/10), AFFIRMED
ALS refusal challenged reasonable grounds. Evidence consisted of single motorcycle crash, admission by respondent to drinking 4 beers and that he felt "pretty good," and estimated he was a 3 or 4 on impairment scale, odor of alcoholic beverage, red, glossy eyes, cotton mouth, and signs during HGN and alphabet field sobriety tests. Argued that no one factor of impairment alone warranted reasonable grounds finding. Court concluded that Hearings Examiner properly viewed the totality of circumstances in reaching reasonable grounds finding. |
Brown v. Beecher, 09-E-0142, (Barry, 2/11/10), AFFIRMED
ALS refusal. Petitioner involved in an accident. Officer observed a damaged vehicle at the scene which had been moved. Court held the evidence was sufficient to constitute reasonable grounds that the Petitioner was the operator of the vehicle. Court further held that Petitioner properly advised of ALS rights and refused breath test. |
Komisarek v. Beecher, 09-E-0411, (Smukler, 01/07/10), AFFIRMED
ALS refusal for underage person. Argued insufficient evidence of reasonable grounds, improper admission of the HGN test, and incorrectly placing great weight on refusing field sobriety tests. Stop based on high speed. Officer smelled strong odor of cologne. Petitioner struggled to remove his license from his wallet. Officer determined Petitioner under age 21. Petitioner denied drinking. HGN administration deviated from standards for test. Before the next test, the Petitioner asked if he was required to take it and was told that he did not have to take the test. He refused further tests. The Hearings Examiner ruled that the impairment standard was lower for an underage person due to the lower BAC level for an such person and considered the evidence sufficient to constitute reasonable grounds. Hearings Examiner was free to give little weight to factors that suggested that the respondent was not impaired. Not error to consider HGN results based on evidence presented at hearing. Proper for Hearings Examiner to draw a negative inference based on refusal of FST's because free to accept or reject evidence as he saw fit. |
Ventresca v. Beecher, 09-0318, (McNamara, 12/8/09), AFFIRMED
ALS appeal alleging insufficient evidence of reasonable grounds in drug impairment case. Hearings Examiner's report contained a finding that he had found reasonable grounds that Petitioner under the influence of intoxicating liquor. Insufficient evidence in the record to support such finding. Sufficient evidence in record of drug impairment including accident, slurred speech, slow actions, eyes half closed, sleepy actions, swaying and admission to having consumed Percocet. Error on report did not influence Petitioner's rights because evidence in record sufficient for finding of reasonable grounds to believe drug impairment. |
Roberts v. Director, 09-E-0204, (Lynn, 10/19/09), AFFIRMED
ALS appeal alleging insufficient evidence of reasonable grounds in drug impairment case, and that refusal invalid due to lapse in time. Drug recognition expert conducted an exam and Petitioner refused blood test thereafter. Impairment evidence consisted of constricted eyes, lethargic, thick tongued speech, trouble eating by missing his mouth with French Fries, slow movements exiting the car, several clues during field sobriety tests, and having possession of a pill bottle containing narcotics. Such evidence sufficient. As to the refusal, there is no statutory time frame within which the officer must request a test when officer has reasonable grounds of impairment. |
Raineri v. Beecher, 09-E-0037 (Rockingham, Lewis), 04/22/09, AFFIRMED
ALS appeal arguing insufficient evidence of reasonable grounds to believe that the Petitioner had driven. Officer responded to accident. Petitioner's wife stated that the Petitioner had been the driver. Petitioner found walking 2 miles from the scene but he stated he had walked 7 miles from a house. Petitioner denied being the driver. Wife highly intoxicated. Hearings Examiner properly concluded reasonable grounds of driving based on statement and evidence that corroborated the statement to include the Petitioner's cell phone discovered on the driver's side of the vehicle, statements that the Petitioner and wife had left the house in the car together, and that the Petitioner showed no signs of physical exertion after walking 7 miles. |
Gomez v. Director, 08-E-0316 (Grafton, Vaughan), 04/20/09, AFFIRMED
ALS appeal arguing insufficient evidence of reasonable grounds to believe that the Petitioner was driving on a way while impaired. Evidence consisted of report of erratic driving that matched Petitioner's vehicle. A security guard observed the Petitioner drive into the Dartmouth Hitchcock Medical Center parking lot. The Petitioner admitted to driving to the hospital. Such was sufficient evidence of driving even where the officer did not observe him driving. Impairment evidence constituted a PBT test result, odor of an alcoholic beverage, and slow slurred speech. Such constituted sufficient evidence of impairment for reasonable grounds. |
Petrocelli v. Beecher, 08-E-0454, (Groff, 03/09/09), AFFIRMED
Stop based on illegal left turn. Continued to drive forward after pulling over. Officer smelled the odor of an alcoholic beverage coming from the Petitioner and noticed that her eyes were bloodshot and glassy. Unsteady on her feet and swayed while standing. Signs of impairment observed during standardized field sobriety tests. Because the first officer was on a motorcycle, another officer transported the Petitioner to the police station and read her the ALS form. Refused test. Petitioner testified at hearing and gave drastically different version of the events and refusal. She claimed ALS form not read and that she only signed it because officer told her that she would not be allowed to leave or call a lawyer if she signed the form. Petitioner made several arguments based on criminal law. Court ruled that under Lopez v. Director, criminal law does not apply. More than sufficient evidence of reasonable grounds and refusal based on record. Denied challenge to admissibility of FST's because not raised at the hearing. Also, form corroborated refusal because Petitioner signed it, and officer initialed it. Hearings Examiner reasonably discredited Petitioner's testimony that form not read. Decision that continuance proper because it was received 5 business days before hearing was reasonable. |
| Fullerton v. Beecher, 08-E-0346, (SD Hillsborough, Nicolosi, 01/22/09), AFFIRMED
ALS hearing. Stop for speed. Took longer to stop that usual. Officer smelled odor of alcohol coming from vehicle. Speech slow and mush mouthed. Denied drinking. Respondent refused field sobriety tests stating that he was not confident in his balance. Officer asked if any open container of alcohol in vehicle. Respondent stated that he was not aware of any. Officer saw can of beer between passengers leg. Can cold to touch and partially full. Respondent arrested for open container. Two more cans of beer discovered during vehicle inventory. Respondent had 2 passengers. Refused breath test. Argued no reasonable grounds. Court upheld the examiners findings based on long time to stop, odor of alcohol, 3 cans of beer and 3 occupants in vehicle, respondent's evasiveness, speech problems, and respondent stumbling while walking to the police cruiser. Decision reasonable based on the totality of the evidence. |
| Mughmaw v. Director, 08-E-0476, (Rockingham, Lewis, 01/27/09), AFFIRMED ALS refusal. Petitioner argued insufficient evidence of reasonable grounds to believe that he had driven while under the influence and that Hearings Examiner violated his right to due process by admitting hearsay evidence and thereby depriving him of his right to cross examination. Also argued that officer inadequately informed him about the consequences of refusing to do field sobriety tests. Court affirmed and found that there was sufficient evidence in the record to support the Hearings Examiner's findings. The Hearings Examiner was not bound by the rules of evidence. Also, no confusion or unfairness regarding officer's advisement on refusal. |
| Leavitt v. Beecher, 08-E-0546, (Rockingham, Nadeau, 01/22/09), AFFIRMED ALS refusal. Petitioner argued insufficient evidence for reasonable grounds to believe that she had driven while under the influence of liquor. Petitioner involved in single car accident. Her eyes were bloodshot and she appeared unsteady on her feet. She denied having consumed alcohol. A paramedic told the officer that he smelled alcohol on the respondent and she then admitted to having consumed 1 beer. The respondent demonstrated signs of impairment during field sobriety tests, although she complained of ankle pain during the tests. Hearings Examiner gave limited weight to FSTs. Court affirmed citing to Jacobs v. Director and reasoned that evidence need not be overwhelming to be sufficient. |
DeCarolis v. Beecher, 08-E-0125,(Rockingham, McHugh, 06/24/08) AFFIRMED
Petitioner was arrested for DWI, and refused to consent to testing. Petitioner argued insufficient evidence of way and insufficient evidence of reasonable grounds. The hearings examiner found Petitioner stumbled out of vehicle, had a strong odor of alcoholic beverages. The Court ruled there was sufficient evidence to support the Hearings Examiner's findings and warrant the license suspension. |
Yulling v. Beecher, 07-E-0201 (Carroll, Houran, 5/22/08) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged evidence was not sufficient The trooper received a report of erratic operation and confirmed before making the stop. The vehicle did not stop for about two minutes. The respondent had a blank look and had difficulty following instructions. There was a strong odor of alcoholic beverages. The respondent's speech was slurred. The respondent failed all field sobriety tests. The court confirmed that this constituted sufficient grounds for the DWI arrest. The trooper read each paragraph of the ALS form to the respondent and checked each line after reading it. He then asked the respondent if she would submit to a breath test and she verbally refused but did not sign the form. The respondent's testimony was contrary to that of the trooper but the court concluded that the hearings examiner made assessments of credibility that were neither unlawful nor unreasonable and the suspension was upheld. |
Silva v. Beecher, 08-E-07 (Cheshire, Tucker, 5/27/08) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged evidence was not sufficient to sustain. The petitioner rolled through a stop sign. The officer noted odor of alcoholic beverages with bloodshot and glassy eyes. Respondent gave evasive answers when asked about consumption of alcohol and where he had been. He refused questions, field sobriety testing and the breath test. Counsel argued various there was more evidence of sobriety and there were not reasonable grounds. The judge disagreed and said the officer's basis for the arrest was sufficient to uphold the administrative suspension, apparently relying heavily on the negative inferences at the scene and at the hearing. |
Toellner v. Beecher,07-E-0507 (Merrimack, Conboy, 03/04/08) AFFIRMED
Petitioner was arrested for DWI, and refused to consent to testing. Petitioner argued insufficient evidence of reasonable grounds because there was no problem with fine motor skills, no odor of alcoholic beverages and a marginal PBT reading. The hearings examiner found Petitioner had been in a car accident, had a flushed face, bloodshot eyes, showed some clues of impairment on two FST tests and the PBT was 0.08. The Court ruled there was sufficient evidence to support the Hearings Examiner's findings and warrant the license suspension. |
Bailey v. Beecher, 07-E-0161, (ND Hillsborough, O'Neill, 10/18/07) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged evidence was not sufficient, hearings examiner unreasonably and unlawfully relied on police reports and record was devoid of evidence that Petitioner consumed alcohol before driving. Hearings Examiner is entitled to accept the police report along with the testimony. Even though the Petitioner testified that he only drank beers after being stopped, the hearings examiner was allowed to reject that evidence in favor of the other evidence in the case and find that Petitioner was driving while intoxicated. Court found evidence supported the findings. |
Coutermarsh v. Beecher, 07-E-0083 (Grafton, Vaughan, 10/16/07) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged evidence was not sufficient. Court noted that Petitioner did not present evidence at the hearing and hearings examiner is entitled to take negative inference for that in a civil case. Hearings Examiner relied on field sobriety and field test observations of officer and PBT results. Court found evidence supported the findings. See also Part 9 Section II (Cert/Intox Accuracy) and Part 8 Section I (Informing of Rights) |
Milliken v. Beecher, 07-E-0100 (Belknap, McHugh 7/19/07) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged evidence was not sufficient and that police officer was biased. He did not provide a transcript. He challenged the field tests and the area where they were done. He also alleged bias because he knew the officer … Another officer was present and corroborated the testimony. Petitioner did not testify. Court found evidence supported the findings. See also Part 9 Section VI (Blood Tests) |
Akerman v. Beecher, 06-E-272 (Merrimack, Conboy 3/21/07) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. She alleged evidence was not sufficient and findings were contradictory. She did not provide a transcript. Court declined to fully consider evidentiary challenges because there was no transcript and affirmed based on record submitted. She challenged the HGN. Hearings Examiner found evidence was sufficient w/o HGN. The evidence was traffic violation, delay in pulling over, admission to consumption, thick-tongued speech, odor of alcohol, red eyes, poor performance on Walk & Turn and one legged stand. Court also found evidence supported the findings and was not contradictory. |
LaRochelle v. Beecher, 06-126 (Carroll, O'Neil 03/09/07) AFFIRMED
Petitioner arrested for DWI and suspension sustained after hearing. Petitioner argued evidence was not sufficient and report was issued after 15 days statutory deadline. Evidence included motorcycle accident, odor of alcohol and Petitioner's performance on Rhomberg test and HGN. The Hearing Examiner credited the officer's testimony over that of Petitioner which differed. Court ruled there was no error in this. Court also found no prejudicial error when report was issued two days late. |
York v. Director, 06-E-0231 (Belknap, Smukler 02/07/07) AFFIRMED
Petitioner was arrested by Marine Patrol for operating a Mach 1 boat while DWI and her license was suspended. Petitioner admitted she was operating the boat and then later denied it. Evidence of an alcoholic odor, eyes appeared glazed and admission to one alcoholic beverage earlier in the day and another on the way over. The Hearings Examiner excluded testimony regarding the HGN. Petitioner refused the breath test after appropriate notice of her implied consent rights. Petitioner states that there was insufficient evidence that she was driving the boat and also that she was intoxicated. Court found the hearings examiner's findings that Petitioner was operating the Mach 1 and that she was intoxicated are supported by sufficient evidence and are not clearly unreasonable. Petitioner failed to sustain her burden. |
Braxton, III v. Beecher, 06-E-0461 (Rockingham, McHugh, 01/17/07) AFFIRMED
Plaistow officer arrested plaintiff for "DWI." Plaintiff refused to submit to a chemical test and requested a hearing on the suspension. The arresting officer did not appear at the hearing and Plaintiff's driving privileges were restored. Another hearing was held by a different Hearings Examiner and arresting officer appeared. His license was revoked. The Plaintiff has the burden of proving that the decision to permit a second hearing was clearly unreasonable or lawful. His appeal of the Hearings Examiner's Decision was denied. |
Pramberg v. Beecher, 06-E-0530 (Rockingham, Morrill 12/13/06)
After review of record, the court concludes that the hearing examiner committed no errors of law and the order is not unjust or unreasonable. (This opinion was AFFIRMED by the NH Supreme Court.) |
Corsetti v. Beecher, 06-E-0228, (Grafton, Vaughn, 11/21/06) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. He alleged that evidence was insufficient and that it was error for officer to fail to provide a copy of the ALS form to him. Red eyes, odor, admission and field test observations were sufficient and officer's testimony was uncontradicted. Negative inference was permissible when Petitioner did not testify at hearing. It was error not to provide a copy of the ALS form, but there was no material prejudice to Petitioner. |
Friedland v. Beecher, 06-E-0396 (Rockingham, Morrill, 11/21/06) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. She alleged evidence was insufficient, that she was not informed of her ALS rights and warrantless stop and seizure was unconstitutional. Evidence of erratic operation, odor of alcohol, unsteadiness, admission to one glass of wine, red eyes and lack of finger dexterity were sufficient even though she refused field sobriety tests and the breath test. She alleged that the officer violated RSA 265:87I because he told her if she passed blood test her license would be returned. Court found that reading the ALS form was sufficient compliance with statute. Court declined to consider the constitutional challenge based on Lopez decision. |
Holden v. Beecher, 06-E-0220, (ND Hillsborough, 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." |
Chickering v. Beecher, 04-E-20 (Cheshire, Sullivan, 07/09/04) AFFIRMED
Arrested for DWI; tested above legal limit, Petitioner claimed "that the hearing officer erred as a matter of law when he ruled that 'reasonable grounds is less than probable cause'. " "The Court finds that based on … State v. MacElman, 149 NH 795, 799 (2003) that reasonable grounds is a lesser standard than the probable cause required for an ordinary search or seizure." (NOTE: cross-reference Section 10, II d, COPY OF TAPE). |
Leclerc v. Beecher, 03-E-391, (Merrimack, McGuire, 02/11/04) AFFIRMED
Sufficiency of evidence that he was driver; arrested for DWI after he was located at a nearby business based on report of third party; who identified him in person; claiming he did not drink until after he drove; and that the third party was unreliable. Court ruled: Hearings Examiner reasonably credited both officers' testimony over that of Petitioner and reasonably rejected other evidence about third party. "… as a matter of logic, decision-making always necessitates relying more on some information than on other." |
Wood v. Beecher, 03-E-118, (Strafford, Lewis, 09/12/03) AFFIRMED
Arrested for DWI; alleged the officer did not have reasonable grounds to believe Petitioner was impaired; Court held:. the officer did not testify to the detailed facts of the FST's, just to his conclusions; this evidence taken together with the officer's report was sufficient for the Hearings Examiner to make his findings. AFFIRMED |
Sollazzo v. Beecher, 03-E-142 (Belknap, Smukler, 10/15/03) AFFIRMED
Arrested for DWI; Petitioner claimed that the police could not establish that he was the operator. Court held: a non-testifying officer asked the Petitioner to step out the vehicle; the trooper offered hearsay only of who the operator was and was not cross-examined. Court held: there was no evidence or objection from Petitioner; the Hearings Examiner could have reasonably concluded that Petitioner was the driver. |
Jacobs v. Beecher, 01-E-651 (Rockingham, McHugh, 04/04/03) REVERSED
Arrested for DWI; alleges insufficient probable cause to arrest; and that her failure to testify could not be used against her. Court held: the police report was considered by the examiner; the officer did not have reasonable grounds on which to stop Petitioner; the Hearings Examiner erroneously relied on Lopez; and improperly considered the negative inference of her not testifying (NOTE: This ruling was reversed by the NH Supreme Court) This Court declines to overrule Lopez and decided that the evidence of impairment was more than sufficient for the officer to believe she was intoxicated. |
Sinclair v. Beecher, 03-E-78 (Sullivan, Morrill, 08/05/03) AFFIRMED
Arrested for DWI after motorcycle accident; advised of ALS rights; failed FST's; claimed he was not injured and alleges there was insufficient probable cause to arrest and that he did not remember the incident. Court held: "… the police officer had reasonable cause to believe that … was driving under the influence of intoxicating liquor…" |
Pogoda-Marceau, 03-E-78 (Belknap, Smukler, 07/10/03) AFFIRMED
Arrested for DWI;alleges officer did not have reasonable grounds to believe the Petitioner had been driving … upon the ways of this state while under the influence of intoxicating liquor pursuant to RSA 265:91-b II (a) (Supp. 2002) Court held that there is sufficient evidence in the record to support the Hearings Examiner's decision. |
Patterson v Beecher, 03-E-110 (Merrimack, Houran, 06/12/03) AFFIRMED
Arrested for DWI…alleges police officer did not have reasonable grounds to believe Petitioner was impaired. Court held: "The Petitioner had the opportunity to … refute the testimony of the officer by offering evidence in his favor". He elected not to do so; the decision is reasonable and lawful. |
Harrington v. Beecher, 03-E-92 (ND Hillsborough, Mangones, 05/12/03) AFFIRMED
Stopped for speeding; typical indications of impairment noted; refused to perform FST's; arrested for DWI; informed of implied consent rights and refused test; Petitioner challenged sufficiency of the evidence to support the officer's reasonable belief that he was impaired. Court held: "[o]ur standard of review is not whether we would have found as the [fact finder] did, but whether there was evidence on which he [or she] reasonably base his [or her] findings. " The evidence before the hearing officer concerning the events at bar included, without limitation … that would confirm or dispel concerns of impairment. These observations…support a finding of reasonable grounds to believe … |
Saitas v. Beecher, 02-E-357 (ND Hillsborough, Brennan, 03/05/03) AFFIRMED
Arrested for DWI; … alleges officer did not have reasonable grounds to believe Petitioner was impaired. Court held: "The hearing examiner's report states … decision is based on the police officer's testimony … and that Petitioner failed to provide any evidence to dispute the police officer's testimony … the decision is reasonable and lawful" … |
Cassady v. Beecher, 02-E-121, (Merrimack, Arnold, 8/16/02) AFFIRMED
Stopped for erratic operation; explained to police officer that counting change on seat was reason for erratic operation. Court held: "While such erratic driving could be the result of counting money, the hearings examiner concluded that … decision to count money showed poor judgment and was evidence of impairment. Such a conclusion is not "clearly unreasonable or unlawful. " RSA 263:75 II (Supp. 2001). The hearings examiner could also have chosen to disbelieve … explanation altogether and reasonably concluded that the erratic driving was solely the result of intoxication rather than counting money. " (NOTE: cross-reference to Section 10, V procedural issues relating to conduct of a hearing) |
Sanders v. Beecher, 02-E-24, (Merrimack, McGuire, 4/1/02) AFFIRMED
Officer stopped vehicle in parking of Border's; petitioner driving vehicle without use of headlights; complaints received and petitioner smelled of alcohol, eyes glassy and he admitted to having four beers; court finds that the record contains ample evidence to support the Hearings Examiner's conclusion. (NOTE: cross-reference to Section 10, procedural issues; Section 8 Informing of ALS rights) |
Overall v. Beecher, 01-E-260 (Belknap, Murphy, 3/29/02) AFFIRMED
Petitioner traveling at high rate of speed; squealing tires; 4-gear change; loud engine noise; officer observed petitioner's bloodshot eyes, red face, slurred speech; petitioner alleged insufficient evidence of impairment; petitioner's argument based on quality of evidence elicited; essentially disputes facts found by Hearings Examiner. Court held: Hearings Examiner's findings amply supported by the evidence. |
Smith v. Beecher, 01-E-0038, (ND Hillsborough, Brennan, 2/8/02) AFFIRMED
Arrested for DWI;informed of ALS rights; refused breath test; alleged insufficient evidence to show impairment; Court held: The burden is on the petitioner to show that the decision of the hearings examiner was clearly unreasonable or unlawful … "the court reviewed … and is not convinced by a clear preponderance of the evidence that the examiner erred in fact or at law in finding that the officer was reasonable in believing the petitioner was under the influence of alcohol …" |
Schaldenko v. Beecher, 01-E-321, (SD Hillsborough, Hicks, 1/4/02) AFFIRMED
Petitioner swerving and driving erratically; arrested for DWI; his eyes were red and watery, speech thick-tongued, noted to have an odor of alcoholic beverage; petitioner admitted to having consumed 2 beers and being very tired; court held: "… during an administrative hearing, the examiner's role is not to determine whether the petitioner was in fact intoxicated but rather, whether the officer had reasonable grounds to believe he was intoxicated based on the circumstances presented to him at the time of the arrest." (NOTE: cross-reference Section 8 ,I Informing of ALS rights;Section 10, I, A Sworn report) |
Jacobson v. Beecher, 01-E-025, (Sullivan, Morrill, 12/17/01) AFFIRMED
Officer stopped vehicle in parking lot of his home; arrested for DWI; petitioner smelled of alcohol, had bloodshot eyes and failed some aspects of the field sobriety tests; court held that: … "there is ample evidence to support the finding that the officer had "reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon the ways of this state while under the influence of intoxicating liquor. "" NOTE: cross-reference to Section 1,III issues involving "way"; and 8, I informing of ALS rights) |
Varney v. Beecher, 01-E-384, (SD Hillsborough, Hampsey, 12/13/01) AFFIRMED
Petitioner arrested for DWI; "… argues that Officer did not present sufficient credible facts upon which the examiner could determine that the officer had reasonable grounds to believe that the petitioner was DWI"; court disagrees, petitioner did not provide any evidence to contradict the officer's testimony. (NOTE: cross-reference Section 8, I Informing of ALS rights) |
Coffill v. Beecher, 01-E-290 (SD Hillsborough, Hampsey, 11/14/01) AFFIRMED
Arrested for DWI; Court reviews "the record as developed before the director …, together with any written legal argument presented to the court. " "The officer had reasonable grounds for believing … was driving under the influence of intoxicating liquor after observing a strong odor of alcohol on … breath, slurred speech, impaired demeanor at home and the reported operation itself. " "The examiner … that there was no evidence before him that … had been drinking either at Shorty's or at home subsequent to operating the vehicle, and he was not going to speculate that he had. "Court held: "Like the examiner, the Court will not engage in speculation." |
Boulanger v. Beecher, 01-E-106, (ND Hillsborough, Sullivan, 9/28/01) AFFIRMED/LENGTH OF SUSPENSION VACATED
Arrested for DWI; petitioner asks the court to reassess the credibility of the witnesses and their stories; under RSA all findings of the director or agent upon all questions of fact properly before him are deemed to be prima facie lawful and reasonable."The Court does not reassess the credibility of the petitioner's version of what happened against the officer's version. The Hearings Examiner's ruling is reasonable and fully supported by the evidence. (NOTE: cross-reference to Section 10, VII Miscellaneous) |
Martel v. Beecher, 01-E-131, (SD Hillsborough, Galway, 9/18/01) AFFIRMED
Arrested for DWI;Court held: "the findings made relative to reasonable grounds for believing that the petitioner was driving under the influence of intoxicating liquor are entitled to be deemed prima facie lawful and reasonable and are adequately supported on the record." (NOTE: cross-reference to Section 8, refusal) |
Place v. Beecher, 01-E-182 (Merrimack, McGuire, 8/13/01) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for DWI; petitioner refused field sobriety tests and breath test; officer detected glassy, bloodshot eyes, lack of balance and an odor of alcohol emitting from petitioner; the court held that "Hearings Examiner's conclusion that the officer had reasonable grounds for believing that Petitioner had been operating a vehicle while under the influence of alcohol is supported by the evidence in the record." |
Kelley v. Beecher, 01-E-20, (Rockingham, Hollman, 6/27/01) AFFIRMED
Arrested for DWI; court held "[t]he validity of the arrest or the traffic stop leading to the arrest is not required by RSA 265:91-b to be established in order to sustain an administrative license suspension. "(NOTE: cross-reference Section 2, Physical control of MV) |
King v. Beecher, 01-E-21, (Rockingham, Hollman, 6/27/01) AFFIRMED
Arrested for DWI and Operating After Suspension; Court held that: "Neither probable cause nor a valid arrest is required to uphold a license suspension under the implied consent laws." "All that the Examiner is required to find, prior to upholding a license suspension, is that petitioner was arrested and that the arresting officer had reasonable grounds to believe petitioner operated a vehicle while intoxicated." (NOTE: Cross-reference Section 8,I Informing of ALS rights) |
Smith v. Beecher, 01-E-76, (ND Hillsborough, Conboy, 5/3/01) AFFIRMED
Vehicle involved in accident; petitioner injured; staggered as she walked to ambulance; in ambulance, officer observed strong odor of alcoholic beverage, red glassy eyes; petitioner admitted to consuming three beers; failed HGN; arrested for DWI. Held: "In light of all the evidence, the hearings examiner was not unreasonable in finding that the officer had reasonable grounds to conclude that the petitioner had been driving while intoxicated at the time of the accident."(NOTE: Section 8, I Informing of ALS rights) |
Kelley v. Beecher, 01-E-64, (Merrimack, Fitzgerald, 4/13/01) AFFIRMED
Arrested for DWI;court held that "… in this civil matter, the reasonableness of the traffic stop has no place"; "… an officer must have reasonable grounds for believing that the suspect had been driving while intoxicated" at the point he requests a test under RSA 265:84. |
Reeves v. Beecher, 00-E-210, (ND Hillsborough, Conboy 9/14/00) AFFIRMED
Vehicle involved in accident; arrested for DWI; court held that "… Officer Cunha saw Petitioner seated in the driver's seat of his car directly after the accident occurred. Based upon Petitioner's position in the car, the hearings examiner reasonably inferred that Petitioner had been driving at the time of the accident. Second, Petitioner smelled of alcohol and would not cooperate with Officer Cunha at the accident scene. Third, the Petitioner's condition in the ambulance provided further evidence of his intoxication. Finally, when Officer Cunha spoke with Petitioner at the hospital, Petitioner still smelled of alcohol and had bloodshot, glassy eyes"; sufficient probable cause for an arrest. |
Sharcot v. Beecher, 00-E-186, (ND Hillsborough, Sullivan, 9/13/00) AFFIRMED
Arrested for DWI; court held that "Once Sergeant Kemp had stopped Petitioner, he noted that her breath smelled strongly of alcohol. In addition, the officer watched Petitioner fail several basic field sobriety tests. As Sergeant Kemp drove Petitioner to the police station after placing her under arrest, he continued to observe the strong odor of alcohol emanating from her"; sufficient probable cause for an arrest. (NOTE: cross-reference to anonymous complaints section) |
Gregg v. Beecher, 00-E-120, (SD Hillsborough, Brennan, 9/5/00) AFFIRMED
Vehicle involved in accident; arrested for DWI; court held that "Officer MacDonald observed that the Plaintiff had red, glassy eyes, strongly smelled of alcohol, swayed back and forth while standing still, and had difficulty walking. He also took note of Plaintiff's slurred speech and poor dexterity in pressing the 'unlock' button on his key chain. Furthermore, Officer MacDonald observed spilled beer on the interior of Plaintiff's car and Mr. Taylor saw petitioner throw a beer container into the woods near the accident scene. Finally, the Plaintiff stated that he had consumed approximately four beers shortly before the accident"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section III of grounds for stop, actual physical control Section I of refusal and Section V of procedural issues involving ALS cases) |
Morrison v. Beecher, 00-E-202, (Merrimack, Fitzgerald, 8/17/00) AFFIRMED
Arrested for DWI; "In this case, Officer Brouillet was called to the scene to assist Officer Dexter, who determined that field sobriety testing of the petitioner was necessary because he could smell the odor of an alcoholic beverage on the petitioner's breath, and noticed that the petitioner's eyes were red and glassy … Officer Brouillet also noticed that the petitioner exhibited red, glassy eyes, and that an odor of alcohol came from the petitioner's breath. Upon administering the HGN test, Officer Brouillet noted that there was a lack of smooth pursuit in both eyes, nystagmus was at maximum deviation on both eyes, and the petitioner swayed from left to right during the administration of the test. During the walk and turn test, the petitioner failed to count out loud, and improperly performed the turn as instructed … Such evidence is even more compelling in light of the fact that it is unlawful for a minor to operate a motor vehicle with a BAC of 0.02 or more". |
Warriner v. Beecher, 00-E-136, (Merrimack, McGuire, 8/8/00) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for DWI; "… Trooper George testified that he detected the odor of alcohol on the petitioner's breath, her eyes were bloodshot and watery, he saw an open beer bottle on the floor in front of the passenger seat, and the petitioner's poor performance on three field sobriety tests indicated that she was impaired by alcohol. "; sufficient probable cause for an arrest, citing Hartgers v. Town of Plaistow. |
Dyer v. Beecher, 00-E-159, (SD Hillsborough, Hollman, 8/4/00) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for DWI; plaintiff alleged that she was highly emotional and had a broken ankle, causing her poor performance on FS tests; court held that "… petitioner's substandard performance was not the only evidence of impairment. Both Scaccia and Fricano testified that they observed a strong odor of alcohol emanating from petitioner, and that her eyes were bloodshot and glassy. Fricano also testified that petitioner slurred her speech. The hearings examiner's determination that these facts, taken together, establish probable cause to arrest petitioner for DWI was not unlawful or unreasonable", citing State v. Aresenault. (NOTE: cross-reference to Section II of grounds for stop and Section I of issues involving chemical tests) |
Stephen v. Beecher, 00-E-47, (Merrimack, Manias, 7/12/00) AFFIRMED
Officer stopped vehicle in parking lot of gas station; arrested for DWI; court held that "Despite the fact that Officer Durkacz did not see the petitioner actually operate the car parked by the gas pumps, and did not observe 'tell-tale signs' of intoxication, the Court will not overturn the decision of the Hearings Examiner absent a clear preponderance of evidence … First, Officer Dyrkacz detected a distinct odor of alcohol on the petitioner's breath. Second, the petitioner admitted that he had consumed 'a couple of drinks' earlier in the evening. Third, the petitioner swayed back and forth during the head-tilt test, did not touch the tip of his nose in the finger-to-nose test, stumbled on the leg-lift test, and stumbled and did not connect on the heel-to-toe walk. Finally, the petitioner told the officers that he had driven to the gas station for fuel and milk". (NOTE: cross-reference to Sections III and IV of grounds for stop and Section V of refusal) |
Hill v. Beecher, 00-E-44, (Belknap, Smukler, 7/7/00) AFFIRMED
Vehicle involved in accident; arrested for DWI; court held that the evidence included "… the manner in which the petitioner operated the vehicle (including his flight and accident), the odor of alcohol, thick-tongued speech and glassy bloodshot eyes. The fact that there might be alternative explanations, such as a concussion or that the petitioner was stunned, may indicate that he was not in fact impaired; however, that is not the test. The test is whether the officers had reasonable grounds to believe impairment". (NOTE: cross-reference to Section I of refusal) |
McVane v. Beecher, 00-E-46, (Strafford, Mohl, 5/22/00) AFFIRMED
Vehicle involved in accident; plaintiff arrested for Conduct After Accident and subsequently, DWI; court held that "Officer Hardy testified that upon coming into contact with the petitioner, he smelled a strong odor of alcohol from a distance. In addition, Officer Hardy testified that the petitioner's speech was slurred, his eyes were bloodshot and glassy, and he swayed a little when he walked. The petitioner matched the description of the person seen running away from the accident scene, and the petitioner told Officer Hardy that he had just come from his car which was down the street … The fact that Officer Hardy initially arrested the petitioner for conduct after an accident does not mean the officer believed he lacked probable cause to arrest … In fact, Officer Hardy testified that he thought he had probable cause to arrest the petitioner for DWI at the time he took him into custody, but he had to make a split decision and arrested him for conduct after an accident instead"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section V of procedural issues involving ALS cases) |
Douglas v. Beecher, 99-E-256, (Belknap, Perkins, 3/23/00) AFFIRMED
Officer stopped vehicle for having brake-type light on rear of vehicle which was white in color instead of red and for making a wide right-hand turn, resulting in it going over the yellow line; arrested for DWI; "Based on the smell of alcohol, her statement that she had consumed a number of drinks, and because of her operation which he had observed he requested her to step from the vehicle and to perform some field sobriety tests. Without detailing the results of his observation of her performance of those tests, it is fair to conclude that if she performed as he testified, his determination that she failed those tests was more than reasonable". (NOTE cross-reference to Section II of grounds for stop and Section I of refusal) |
Cubell v. Beecher, 99-E-228, (Grafton, Fitzgerald, 3/21/00) AFFIRMED
Officer stopped vehicle for defective headlight; arrested for DWI; plaintiff claimed that videotape would have shown that he was not intoxicated at time of booking; court held that "… the sergeant testified that he observed petitioner's eyes to be red and glassy, his face red and flushed and his speech slightly slurred. Further, petitioner admitted to consuming alcoholic beverages at dinner and the sergeant saw him use his car door for support when exiting the vehicle. Finally, petitioner failed to perform adequately on the three field sobriety tests. The role of the examiner during an administrative hearing is not to determine whether the person was in fact intoxicated, but whether the officer had reasonable grounds to believe the person was intoxicated"; sufficient probable cause for an arrest. |
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Huoppi v. Beecher, 99-E-411, (ND Hillsborough, Groff, 3/2/00) AFFIRMED
Vehicle involved in accident; arrested for DWI; court held that "The transcript indicates sufficient observations by the police officer to support his reasonable belief that appellant was under the influence. These observations included Trooper Fogerty's observation of the accident itself, his observation of appellant at the hospital as to a strong odor of alcohol, bloodshot and watery eyes, slurred speech and her general argumentative behavior". (NOTE: cross-reference to accident, Section I of refusal and Section V of procedural issues involving ALS cases) |
Whittemore v. Beecher, 99-E-161, (Merrimack, McGuire, 11/30/99) AFFIRMED
Officer stopped vehicle in parking lot; plaintiff asleep; arrested for DWI; court held that "… based on (1) Petitioner's own statement that he had consumed 'several beers' (2) the smell of alcohol inside and outside Petitioner's car observed by Officer Lindsley; and (3) Petitioner's performance on several field sobriety tests, the Court finds that there was sufficient evidence for the hearing examiner to conclude that Petitioner was driving under the influence of alcohol". (NOTE: cross-reference to actual physical control section) |
Raymond v. Beecher, 99-E-252, (Merrimack, McGuire, 11/29/99) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for being under influence of alcohol or controlled drug; plaintiff claimed that there was no testimony as to the clinical or physiological signs of impairment from a controlled drug and that the signs are not of a type within the common knowledge and experience of the officer; "By Petitioner's own admission, he had taken too many drugs to remember them all. Petitioner's erratic behavior and performance on the field sobriety test as well as his erratic operation observed by the troopers strongly suggested he was intoxicated. A search of Petitioner's vehicle uncovered a burnt marijuana cigarette along with marijuana in a plastic bag. Marijuana is a controlled drug … Moreover, whether or not a drug is controlled is irrelevant to a review of a suspended driver's license". (NOTE: cross-reference to Section I of refusal) |
Hudson v. Beecher, 99-E-295, (SD Hillsborough, Dalianis, 11/15/99) AFFIRMED
Officer stopped vehicle for rolling through stop sign; arrested for DWI; plaintiff claimed that the officer lacked probable cause to arrest him because 1) his physical disability was reason he failed FS tests; 2) the officer failed to inquire why his eyes were bloodshot and glassy and 3) there was no erratic operation; court held that "… the officer testified that the petitioner had trouble maintaining his balance throughout the tests, that the petitioner frequently interrupted him and had trouble following instructions and that the petitioner smelled of alcohol, admitting that he had three drinks since noon time that day. The officer also testified that the petitioner had trouble focusing his eyes during the HGN test, a test that did not require the use of the petitioner's leg … the testimony that the petitioner's eyes were bloodshot and glassy should not be disregarded merely because the officer did not ask why the petitioner's eyes were in that condition, and the fact that the petitioner merely rolled through a stop sign instead of driving erratically does not remove the possibility that he was DWI". (NOTE: cross-reference to Section IV of procedural issues involving ALS cases) |
Bobek v. Beecher, 99-E-184, (ND Hillsborough, Conboy, 10/13/99) AFFIRMED
Vehicle involved in accident; arrested for DWI; court held that "… Trooper Bolduc observed the petitioner as having a disheveled appearance, smelling of alcohol, and having trouble balancing himself and focusing his eyes on Trooper Bolduc during their conversation. The petitioner confirmed he had been driving the van at the time of the accident, and that he had three to four drinks shortly before the accident but had not had any drinks after the accident. Moreover, the petitioner failed the sobriety tests administered by Trooper Bolduc which the Court has already determined were not coerced"; sufficient probable cause for an arrest. (NOTE: cross-reference to accident ; Section II, below; and Section IV of refusal) |
Part v. Beecher, 99-E-289, (SD Hillsborough, Hampsey, 9/28/99) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for DWI; "The officer observed petitioner's vehicle cross the fog line three times. Additionally, upon stopping petitioner, the officer detected a strong odor of alcoholic beverage and noted bloodshot eyes and slurred speech. Thereafter, petitioner performed poorly on several field sobriety tests"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section II of grounds for stop) |
Guimond v. Beecher, 99-E-279, (ND Hillsborough, Sullivan, 8/27/99) AFFIRMED
Officer stopped vehicle for erratic operation; court held that "Petitioner admitted he was coming from a tavern. The officer noticed the smell of alcohol coming from the vehicle while he was talking to the petitioner. The petitioner had to use the door for support when exiting and walking to the rear of his vehicle … According to the officer, the petitioner was swaying in an obvious, noticeable and pronounced way. The field sobriety tests clearly indicated that the petitioner was intoxicated"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section II of grounds for stop; Section VI of refusal and Section V of procedural issues involving ALS cases) |
Joos v. Beecher, 99-E-174, (Merrimack, McGuire, 8/13/99) AFFIRMED
Officer stopped snowmobile for being unregistered and travelling upon a public way; arrested for DWI after snowmobile crashed into a tree; court held that "Given that the officer detected a moderate odor of alcohol, the appellant was unable to focus on the officer, was unsteady on his feet, continuously swayed, failed two field sobriety tests, had crashed into a tree and admitted he had been drinking that evening, it was reasonable for the Hearings Examiner to find that the officer possessed reasonable grounds to believe that the appellant had been operating while under the influence". (NOTE: cross-reference to Section IV, below) |
Athorn v. Beecher, 99-E-47, (SD Hillsborough, Murphy, 8/4/99) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for DWI; "In his testimony, the officer testified that he could smell alcohol throughout his encounter with the petitioner. In addition, he testified in detail regarding the sobriety tests he administered and the petitioner's substandard performance. Finally, the officer stated that the petitioner told him he had five drinks during the evening"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section I and III of grounds for stop) |
Peno v. Beecher, 99-E-89, (Merrimack, Perkins, 8/2/99) AFFIRMED
Officer stopped vehicle for erratic operation; court held that "… it appears that the hearing examiner accepted Officer Walter's testimony that he smelled alcohol on the petitioner's breath, that the petitioner admitted to having two beers, that he was swaying and that he experienced some trouble performing some of the field sobriety tests"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section I of refusal and Section V of procedural issues involving ALS cases) |
Flewelling v. Beecher, 98-E-433, (SD Hillsborough, Brennan, 7/30/99) AFFIRMED
officer stopped vehicle for inspection violation and erratic operation; arrested for DWI; court held that "… the officer noticed that the petitioner had bloodshot, glassy eyes and he detected an odor of alcoholic beverage coming from the petitioner's breath. The petitioner informed the officer that he had consumed beer and gave a substandard performance on five field sobriety tests. How the petitioner appeared on the booking video tape may go to the weight to be given to the officer's testimony regarding his at-the-scene observations. However, the examiner, as the fact-finder, may have accepted or rejected, in whole or in part, the testimony of any witness. Based on all of these factors, it was not unreasonable for the examiner to find the arrest lawful". (NOTE: cross-reference to Section II of grounds for stop, Section V of refusal and Section IV of procedural issues involving ALS cases) |
Driscoll v. Beecher, 99-E-138, (SD Hillsborough, Dalianis, 6/10/99) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for DWI; court held that although the videotape did not show slurred speech or swaying, there was sufficient probable cause for an arrest; "… the officer smelled the odor of alcohol, the petitioner had bloodshot and glassy eyes and the petitioner failed the appropriately administered field sobriety tests. There is no evidence upon which to conclude that the examiner erred in crediting the officer's testimony … even disregarding the examiner's findings of slurred speech or swaying". (NOTE: cross-reference to Section II of grounds for stop) |
Smith v. Beecher, 98-E-168, (Grafton, Fitzgerald, 3/18/99) AFFIRMED
Officer approached plaintiff for potential disorderly conduct; arrested for DWI; "The officer saw the pickup truck turn into the driveway minutes prior to his approaching the petitioner. The petitioner, when asked by the officer, admitted he was the driver of the truck. In addition, the petitioner admitted to having consumed beer immediately prior to the officer approaching him. Finally, the petitioner failed to adequately perform two field sobriety tests administered by the officer, and a subsequent blood alcohol concentration test revealed that the petitioner had illegal levels of alcohol in his system. These facts support the officer's reasonable belief that the petitioner had been driving his truck while under the influence of alcohol, notwithstanding his denials". (NOTE: cross-reference to Section IV of grounds for stop) |
O'Mara v. Beecher, 98-E-415, (Merrimack, McGuire, 3/17/99) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for DWI; court held that "… the Hearings Examiner relied on the officer's observation of: an odor of alcohol coming from appellant's vehicle; appellant's slow speech and actions; appellant's red eyes and appellant's admission that he had been drinking"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section V of procedural issues involving ALS cases) |
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Owens v. Beecher, 98-E-448, (SD Hillsborough, Dalianis, 3/9/99) AFFIRMED
Officer stopped vehicle for going through a stop sign; arrested for DWI; "The petitioner fumbled through his wallet in order to find his license and produced a registration that did not belong to his van. Additionally, the officer noted the petitioner's bloodshot, glassy eyes and his slurred speech. Moreover, the officer detected a strong odor of alcoholic beverage, petitioner stated that he had consumed beer and petitioner failed three sobriety tests. How the petitioner appeared on the booking video tape may go to the weight to be given to the officer's testimony regarding his at-the-scene observations. However, the examiner, as the fact-finder, may have accepted or rejected, in whole or in part, the testimony of any witness". (NOTE: cross-reference to Section V of procedural issues involving ALS cases) |
Flewelling v. Beecher, 98-E-410, (Merrimack, Manias, 3/1/99) AFFIRMED
Officer stopped vehicle which was parked in breakdown lane of Interstate 89; plaintiff asleep; arrested for DWI; "The petitioner claims that the odor of alcohol emanating from his person and his poor performance on field sobriety tests were insufficient to justify his arrest. The petitioner argues that there was no evidence demonstrating when he consumed the alcohol or how much he consumed, and that his performance on the tests was due to the fact that he had just been awakened from a deep slumber"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section III of grounds for stop; actual physical control and Section I of procedural issues involving ALS cases) |
Elesi v. Beecher, 98-E-444, (SD Hillsborough, Hollman, 2/25/99) AFFIRMED
Officer stopped vehicle for erratic operation; eyes glassy and bloodshot; detected strong odor of alcohol; plaintiff admitted consuming alcohol; failed FS tests; arrested for DWI; court held that "Even if some of petitioner's field sobriety tests were tainted by an alleged physical impairment, there existed other evidence on which the trooper relied in making the arrest". (NOTE: cross-reference to Section II of grounds for stop and section involving back of ALS form) |
Daly v. Beecher, 98-E-598, (Rockingham, Galway, 1/26/99) AFFIRMED
Officer stopped vehicle for speeding; detected strong odor of alcohol; eyes bloodshot and glassy; plaintiff attempted to light a match without having a cigarette; slurred speech; officer gave FS tests to plaintiff and told plaintiff he had passed however, arrested for DWI; officer explained that he had made an error since the tests were not pass or fail; court held that "even though the plaintiff was initially told he had passed the field sobriety tests, Officer Payne immediately told the plaintiff he was in error and it was not a pass or fail test. Officer Payne's determination that the plaintiff was impaired was based on a totality of his observations. Accordingly, the Hearings Examiner's finding that the officer had a reasonable ground for believing the plaintiff was driving under the influence of intoxicating liquor was reasonable and lawful". (NOTE: cross-reference to Section III of refusal) |
Cohen v. Beecher, 98-E-179, (SD Hillsborough, Dalianis, 9/30/98) AFFIRMED
Officer stopped vehicle for erratic operation; arrested for DWI; court held that "… the hearings examiner did not err in also finding it reasonable for Officer Petrin to administer field sobriety tests after observing petitioner's bloodshot and glassy eyes, mushmouthed speech, and strong odor of alcoholic beverage. Based on all of these factors, and petitioner's substandard performance on the field sobriety tests, the hearings examiner did not err in finding the investigative stop and arrest to be lawful". (NOTE: cross-reference to Section V of issues involving chemical tests) |
Dowling v. Beecher, 98-E-70, (ND Hillsborough, Conboy, 7/13/98) AFFIRMED
Arrested for DWI; court held that Hearing Examiner's conclusion that the officer "… had reasonable grounds for believing that the Respondent was driving under the influence of intoxicating liquor after observing an [sic]scent/odor of alcohol on the respondent's breath, slurred speech, glassy eyes, details of the accident known to him, respondent's denial of consumption in spite of the officer's observations and her demeanor while in CMC", was supported by the record, citing State v. Vandebogart; plaintiff also alleged that she had not been placed under arrest; court held that "… appellant lay prone in an emergency room at the Catholic Medical Center when ManMerr.ter Police Officer Brian O'Keefe told her that she was in custody for DWI … A reasonable person, upon hearing these statements while lying prone in an emergency room, would have believed that she was not free to leave … That appellant was not handcuffed, finger-printed, formally declared 'under arrest', or taken into custody at the police station does not alter the fact that there was an arrest in this case", citing State v. Riley. |
Jacobucci v. Beecher, 97-E-434, (Rockingham, Barry, 2/4/98) AFFIRMED
Arrested for DWI; court held that "Officer Morelli identified the presence of several indicators of alcohol consumption and impairment, including the odor of alcohol, Jacobucci's unsteadiness on his feet, his statement that he had been drinking, and his performance on the field sobriety tests", citing State v. Melanson and State v. McBreairty. (NOTE: cross-reference to Section IV of grounds for stop) |
Normandeau v. Beecher, 97-E-177, (Merrimack, Manias, 8/7/97) AFFIRMED
Officer stopped vehicle based upon information received from dispatch pertaining to possible DWI; arrested for DWI after officer observed 1) an odor of alcohol; 2) bloodshot eyes; 3) plaintiff used vehicle for support; 4) plaintiff's admission that he had a few drinks; and 5) failure of FS tests; sufficient probable cause for an arrest. (NOTE: cross-reference to anonymous complaints section) |
Gentile v. Beecher, 97-E-563, (Rockingham, Murphy, 6/30/97) AFFIRMED
Arrested for DWI; plaintiff contended that there was no probable cause to arrest him as he had passed all the FS tests; "given the nature of the arresting officer's testimony relative to the existence of several indicators of alcohol consumption and impairment, consisting of the odor of alcohol, glassy and bloodshot eyes, failure of the one-legged stand, denial of, and later admission of having been drinking alcohol recently and an empty beer can in the car, there appears, based upon a totality of the circumstances, sufficient evidence to establish the existence of probable cause for the arrest of the defendant". |
Lane v. Beecher, 96-E-310, (SD Hillsborough, Dalianis, 12/20/96) REVERSED
Trooper observed vehicle on highway and signaled him to pull over; vehicle failed to do so; trooper got physical description of driver and registration number; trooper met plaintiff a significant time later at residence in Nashua; same person who had been driving vehicle earlier on highway; arrested for DWI; court held that there was not sufficient probable cause for an arrest; "… before arresting the plaintiff, Trooper AuCoin did not inquire as to how much alcohol the plaintiff had consumed, or when he had consumed that alcohol. This failure is important because the record indicates that, apparently, a reasonably lengthy amount of time passed from the time Trooper AuCoin observed the plaintiff on D.W. Highway and the time that he observed the plaintiff at 30 Lynn Street and determined that plaintiff was intoxicated. Thus, no evidence was presented as to whether the plaintiff consumed alcohol, if any, before operating his car or after he had arrived at the residence in Nashua …". |
Dubois v. Beecher, 96-E-100, (ND Hillsborough, Brennan, 6/18/96) AFFIRMED
Officer stopped vehicle for no rear license plate and malfunctioning rear license plate light; arrested for DWI; "although the evidence of intoxication is not overwhelming, Officer Goguen noticed: 1) an odor of alcohol … 2) the petitioner's eyes appeared bloodshot and glassy, 3) the petitioner admitted that he consumed a beer that evening, 4) the petitioner failed one of the field sobriety tests, and 5) the petitioner swayed when he performed the one-legged stand. With regard to the petitioner's allegation that he suffered from ADD and was taking Ritalin, the court notes that the petitioner informed Officer Goguen that the medication would not affect his performance on the field sobriety tests"; sufficient probable cause for an arrest, citing State v. Christy, State v. Crotty, State v. Vachon, State v. Birmingham and State v. Taylor. (NOTE: cross-reference to Section I of grounds for stop) |
Koyianis v. Beecher, 96-E-38 (ND Hillsborough, Conboy, 5/15/96) AFFIRMED
Officer stopped vehicle with no headlights; detected strong odor of alcohol; face flushed and slow movements; slurred speech; uncoordinated on feet; refused to perform FS tests; arrested for DWI; court held that there was sufficient probable cause for an arrest, citing State v. Christy, State v. Crotty and State v. Vachon. NOTE: cross-reference to Section I of grounds for stop and Section I of refusal) |
Bourque v. Beecher, 95-E-113, (Grafton, Lynn, 4/18/96) AFFIRMED
Officer stopped vehicle for driving in breakdown lane with hazard lights on and no headlights; detected obvious odor of alcohol; plaintiff indicated that he had couple of beers over course of day; performed three FS tests which he failed; had indicated that he had bad knees so officer conducted those tests which would be easiest on the knees; eyes red and glassy; arrested for DWI; court held that there was sufficient probable cause for an arrest, citing State v. Birmingham, State v. Schofield and State v. Slayton. (NOTE: cross-reference to Section IV of grounds for stop and Section I of procedural issues involving ALS cases) |
Cullinan v. Beecher, 95-E-57, (Carroll, Abramson, 11/1/95) AFFIRMED
Officer stopped vehicle for defective plate light; interior of vehicle littered with beer cans; fumbling for license and registration; eyes glassy and bloodshot; odor of alcohol; denied consuming alcohol; failed five FS tests; arrested for DWI ; court held that "'probable cause' and 'reasonable grounds' are synonymous terms" and that "… Officer Dolan had reasonable grounds to believe the petitioner was driving while intoxicated", citing State v. Christy, State v. Crotty, State v. Vachon and State v. Birmingham. (NOTE: cross-reference to Section I of grounds for stop and Section IV of refusal) |
Wheeler v. Turner, 95-E-38, (Rockingham, McHugh, 3/23/95) AFFIRMED
Officer stopped vehicle for erratic operation; detected moderate odor of alcohol; eyes glassy; plaintiff refused to do FS tests; arrested for DWI; factors indicating impairment included "… the degree of erratic operation which the trooper observed prior to the stop; the odor of alcohol present on the plaintiff; the manner in which he walked from his vehicle to the police cruiser; the plaintiff's admission to having consumed some alcoholic beverage; and the plaintiff's condition of having glassy eyes as noted by the trooper"; reasonable grounds to believe plaintiff was impaired to some degree "… even though field sobriety tests would have enabled the trooper to be more definitive in his final conclusion …". |
House v. Turner, 95-E-25, (Merrimack, Arnold, 3/6/95) AFFIRMED
Officer stopped vehicle for erratic operation; detected odor of alcohol; eyes glassy and bloodshot; speech thick; plaintiff denied consuming alcohol; plaintiff failed two out of three FS tests; arrested for DWI; court held that officer "considered the terrain and the petitioner's weight as factors in evaluating the test results and the fact that petitioner had advised that she had no physical problems other than a sore heel that would impair her performance of the field sobriety tests". (NOTE: cross-reference to Section II of grounds for stop and Section V of refusal) |
Martin v. Turner, 95-E-29, (ND Hillsborough, Arnold, 3/3/95) AFFIRMED
Officer stopped vehicle for erratic operation; detected slight odor of alcohol in vehicle; speech slurred; admitted to having two drinks; difficulty shutting engine and headlights off; difficulty in producing registration; unsteady movements; failed three FS tests; arrested for DWI; plaintiff claimed that he has dyslexia which impaired his ability to perform FS tests; "notwithstanding plaintiff's dyslectic condition and the mechanical problems which the plaintiff indicated that he was experiencing with his 1970 Mercedes, the totality of the circumstances provided Officer Remillard with probable cause to conclude that the plaintiff had been driving while under the influence of alcohol". (NOTE: cross-reference to Section II of grounds for stop; Section I of refusal and Section II of issues involving chemical tests) |
Hillock v. Turner, 94-E-99, (Merrimack, Cheshire, Mangones, 2/22/95) REVERSED
Officer stopped vehicle for drifting over yellow line; red and glassy eyes; slurred speech; detected odor of alcohol once plaintiff left vehicle; FS tests not performed because of plaintiff's combative attitude; arrested for DWI; "the officer's knowledge may have given the officer grounds for an articulable suspicion and further investigation. There may well have been grounds for an arrest at a later time. However, as of the point that the arrest was actually made in this matter, the Court does not find that the information available had risen to the level of probable cause for an arrest of plaintiff for DWI". |
Christensen v. Turner, 94-E-186, (Strafford, Mohl, 2/15/95) REVERSED
Arrested for Disobeying A Police Officer; once handcuffed, officer detected odor of alcohol; eyes and complexion reddish; slow to step from vehicle; mumbled; had not been driving erratically; FS tests not performed; also charged with DWI; "…Christensen was placed under arrest for disobeying a police officer. Apart from the officer's few casual observations, there was scant evidence of Christensen's impairment at the scene or any time thereafter. Standing alone, without more concrete evidence of impairment, the officer's casual observations of Christensen are not sufficient to find a reasonable basis to believe Christensen was operating while under the influence of alcohol". |
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DiPaola v. Turner, 94-E-351, (ND Hillsborough, Sullivan, 10/14/94) AFFIRMED
Arrested for DWI; "The hour of the night, failing to observe the speed limit, failure to notice the officer's lights and stop, crossing into the breakdown lane several times, misunderstanding or not hearing the officer's command to stay in his vehicle, acting very nervous, asking to be allowed to drive home [officer, just let me drive home], admitting to consuming four drinks, and partially failing the field sobriety tests together clearly establish probable cause, even though no one of these items alone might be sufficient to justify a stop of the petitioner's vehicle and establish probable cause". (NOTE: cross-reference to Sections I and IV of issues involving chemical tests) |
DiStefano v. Turner, 94-E-227, (Merrimack, Arnold, 10/14/94) AFFIRMED
Officer stopped vehicle for erratic operation; detected strong odor of alcohol; eyes red, glassy and bloodshot; speech slurred; unsteadiness on feet; two FS tests administered before weather got too bad to continue, which plaintiff failed; arrested for DWI; plaintiff claimed that he was not given any FS tests and that he walked without any difficulty; officer's testimony credited with respect to his observations of plaintiff's impairment. (NOTE: cross-reference to Section II of grounds for stop, anonymous complaints and section involving back of ALS form) |
Janelle v. Turner, 94-E-317, (Rockingham, Barry, 8/11/94) AFFIRMED
Officer stopped vehicle for motor vehicle violation; arrested for DWI; court held that "upon stopping plaintiff, the odor of alcohol, dilated, bloodshot eyes and slurred speech provided more than sufficient probable cause to administer the field sobriety tests and provided sufficient evidence for the arrest of the plaintiff for driving under the influence of intoxicating liquor". (NOTE: cross-reference to Section I of grounds for stop) |
Brewer v. Turner, 94-E-88-B, (SD Hillsborough, Dalianis, 6/9/94) AFFIRMED
Officer stopped vehicle for erratic operation; detected odor of alcohol; face appeared flush; admitted to having four beers; gave four FS tests; arrested for DWI; court stated "he did not count the HGN test against her. As for the other three, without recounting the evidence in detail, suffice it to say that this Court has only infrequently heard descriptions of performance worse than this"; court held there was "ample" probable cause for an arrest. (NOTE: cross-reference to Section II of grounds for stop and Section I of refusal) |
Brown v. Turner, 94-E-53, (Merrimack, McGuire, 5/19/94) AFFIRMED
Officer stopped vehicle for erratic operation; detected moderate odor of alcohol; eyes bloodshot; speech somewhat slurred; admitted to having five or six beers; conducted HGN and finger-to-nose test which plaintiff failed; plaintiff refused to do one-legged stand or walk-and-turn because of bad knees so a second HGN test was given, which he also failed; arrested for DWI; plaintiff denied he was given a finger-to-nose test; sufficient probable cause for an arrest. (NOTE: cross-reference to Section II of grounds for stop) |
Nadeau v. Turner, 94-E-36, (Merrimack, Manias, 3/21/94) AFFIRMED
Officer stopped vehicle for inoperative headlight; detected moderate odor of alcohol; eyes bloodshot; speech slightly slurred; failed four FS tests; arrested for DWI; court determined that officer took into account the "cool temperature, petitioner's physical impairments, as well as petitioner's inability to follow instructions and inability to successfully perform three of the four tests administered". (NOTE: cross-reference to Section I of grounds for stop) |
Agrella v. Turner, 93-E-683, (Merrimack, Manias, 2/11/94) REVERSED ON OTHER GROUNDS
Officer stopped vehicle for speeding; detected odor of alcohol; eyes bloodshot and glassy; speech somewhat slurred; had one beer; plaintiff failed four FS tests; arrested for DWI; videotape in cruiser as shown to court; court held "the tape provides little support for the conclusion that plaintiff was physically impaired. Nevertheless, the Court attaMerr. greater weight to the officer's testimony than to the videotape". (NOTE: cross-reference to Section II of issues involving chemical tests) |
Burnham v. Turner, 93-E-314, (Merrimack, Arnold, 12/14/93) AFFIRMED
Officer stopped vehicle for erratic operation; lost balance and fell against vehicle when exiting; detected strong odor of alcohol; speech slurred; unsteady on feet; had four or five drinks; three FS tests conducted; plaintiff advised he had a bad knee; failed all FS tests; arrested for DWI; plaintiff stated that he passed all the FS tests but that they were conducted on a rough and uneven dirt road; court credited officer's testimony and found there was sufficient probable cause for an arrest. (NOTE: cross-reference to Section II of grounds for stop and Section I of refusal) |
Despres v. Turner, 93-E-264, (Merrimack, Arnold, 10/1/93) AFFIRMED
officer stopped vehicle for erratic operation; arrested for DWI; court stated that "Officer Violette observed sufficient indicia of impairment - petitioner's unsteadiness, slurred speech, glassy eyes, an odor of alcohol and an inability to complete the field sobriety tests satisfactorily - to reasonably conclude that the petitioner was operating under the influence of intoxicating liquor". (NOTE: cross-reference to jurisdictional issues involving ALS cases) |
Savage v. Turner, 93-E-346, (Merrimack, Arnold, 9/24/93) AFFIRMED
Officer stopped vehicle for a stop sign violation; detected odor of alcohol; eyes heavy; admitted to having several beers; failed four FS tests; arrested for DWI; given second set of FS tests at station after arrest which he passed; no other observations made; court stated that "notwithstanding the absence of some indicia of impairment as testified to by Officer Todd on cross-examination …", sufficient probable cause for an arrest. (NOTE: cross-reference to Section II of grounds for stop) |
Moriarty v. Turner, 93-E-347, (Merrimack, Manias, 8/17/93) AFFIRMED
Officer stopped vehicle for speeding; eyes glassy and bloodshot; detected strong odor of alcohol when asked plaintiff to blow in his face; requested plaintiff perform FS tests; plaintiff failed all but one test; arrested for DWI; court concluded there was sufficient probable cause for an arrest. (NOTE: cross-reference to Section VI of refusal) |
Stickney v. Turner, 93-E-74-B, (SD Hillsborough, Dalianis, 6/9/93) AFFIRMED
IMPLIED CONSENT NOT ALS: Officer stopped vehicle for erratic operation; detected moderate odor of alcohol; plaintiff's arm kept slipping from its position; admitted to drinking; requested plaintiff perform FS tests; plaintiff indicated that he had back surgery which officer took into account; gave F-to-N test, which plaintiff failed; arrested for DWI; court determined that "there was more than enough to justify the arrest for driving under the influence". (NOTE: cross-reference to Section II of grounds for stop) |
Stalker v. Turner, 92-E-485-B, (SD Hillsborough, Groff, 11/20/92) REVERSED
IMPLIED CONSENT NOT ALS: Officer stopped vehicle for speeding; arrested for DWI; court held that "in general, the police officer had a poor recollection of events, and his police report contradicted his testimony in significant areas; The Court found the officer's testimony regarding the alleged staggering of the plaintiff not to be credible. The officer did admit that the plaintiff passed the balance test and the finger-to-nose test. The Court finds that the police officer may have suspected that the plaintiff was under the influence, but the Court finds he did not believe him to be". |
|
| II. Field Sobriety Tests |
Themelis v. Beecher, 07-E-0446,(ND Hillsborough, 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. |
Carreau v. Beecher,04-E-256(ND Hillsborough, Abramson, 12/13/04)AFFIRMED
Petitioner agreed to FST's; claims the FST results should be suppressed because he was arrested the moment the police officer became aware his license was suspended. (for child support) HELD: "not every seizure…rises to the level of an arrest. At that moment,…police officer did not restrain Petitioner's freedom to a degree associated with formal arrest. " |
Gustin v. Beecher, 04-E-117, (SD Hillsborough, Groff, 06/09/04) AFFIRMED
Petitioner was involved in an accident and driving on a flat tire; appeared confused and "mentally not right", Petitioner indicated to the police officer that she had had a "cup of vodka" a few hours ago and was also taking prescription medication; failed the FST's; was rrested for DWI; advised of ALS rights and refused the breath test. Petitioner claimed she was not under arrest at the time she was administered the FST's. "Court finds that the Hearings Examiner's determination that the Petitioner was not under arrest at the time she was administered the FST's was justified by the evidence." |
Zajac v. Beecher, 03-E-450, (ND Hillsborough, Conboy, 03/25/04) AFFIRMED
Arrested for DWI; informed of ALS rights;agreed to FST's, later refused further testing; Petitioner claimed he was coerced into participating in the FST's. Court held: "… own testimony supports the finding that the participation was voluntary. Trooper … statements were not unduly coercive, … and, indicate his intention to ensure that Petitioner's participation was truly voluntary. " "Based on the evidence and testimony presented, the court cannot conlucde that the Hearings Examiner's findings were either unlawful or unreasonable with regards to the FST's. " |
Stockman v. Beecher, 02-E-184, (Merrimack, McGuire, 11/7/02) AFFIRMED
Petitioner arrested for DWI; informed of implied consent rights;refused test; alleged police officer had no reasonable basis for stop. Hearings Examiner ruled that is not an issue for the Hearings Examiner to decide in ALS hearing. Appealed; alleging Jacobs limited the application of Lopez; asks the Court follow Jacobs. Court held: "It is the role of the New Hampshire Supreme Court to clarify its opinions. This Court can only follow current law as articulated by the Supreme Court …The Supreme Court has held that a "valid … traffic stop … is not a required predicate under the ALS statute. " Reasonably construing this plain language, the Court will not inquire into whether the police conducted a valid investigatory stop. " |
Conroy v. Beecher, 02-E-79, (Grafton, Burling, 9/10/02) AFFIRMED
Stopped for wrong-way violation; police officer detected evidence of impairment; requested FST in order to confirm or dispel his suspicion; arrested for DWI; refused breath test; issue is utilization of FST results. Court held: In this case, the hearings examiner properly found that the petitioner was neither placed under arrest for DWI nor cited for wrong way violation until after the field sobriety tests were completed. |
Molleur v. Beecher, 01-E-177, (ND Hillsborough, Conboy, 8-14-01) AFFIRMED
Petitioner agreed to take field sobriety tests; denied having any physical handicaps including eye problems; administered HGN and walk and turn tests; refused further testing; arrested for DWI; in her appeal, "she asserts that the test has not been established as scientifically reliable …"; "The Court finds and rules that the law does not require hearings examiners in civil ALS proceedings to establish the scientific reliability of HGN test before they may consider HGN test results." |
Wardell v. Beecher, 00-E-284, (Merrimack, Fitzgerald, 2/26/01) AFFIRMED
Officer stopped vehicle for erratic operation; petitioner claimed the FST results should be suppressed because the tests themselves were not consensual; petitioner cites no authority and the Court is aware of none. Court held: "it does not appear that the issue of consent to FST's is an issue that may be raised in an ALS hearing. Because there is no rule prohibiting the use of non-consensual FST;the argument of this issue is unavailing. (NOTE: cross-reference Section 9, VI Blood tests) |
Laughner v. Beecher, 00-E-97, (Cheshire, Mangones, 2/21/01), AFFIRMED
Injured driver involved in one vehicle accident; no apparent cause; at hospital, trooper gave petitioner HGN test to determine if he may have been impaired due to alcohol; trooper gave the test in a fashion that deviated with the standards for administration of the test as provided in New Hampshire law enforcement officer HGN training; petitioner submits that because the State did not accomplish the HGN in accordance with those standards, their accuracy was compromised. Court held:"The failure to follow HGN test protocols may well impact the weight to be given the test … .unlike blood-alcohol tests regulated under RSA 265:85, … there are apparently no similar regulations mandating the following of HGN protocols prior to consideration of HGN information. |
Dowgiert v. Beecher, 00-E-107, (Rockingham, McHugh, 4/20/00) AFFIRMED
Arrested for DWI; plaintiff claimed that officer set forth no specialized training or experience to conduct FS tests; "The Court notes however that of the three sobriety tests given, only one would appear to require specialized training, that being the HGN test. The other tests administered were the one leg standing balance test and the walk and turn test. One does not have to be a brain surgeon to give those tests. An argument can be made that any fair-minded layman could give those tests. While Officer Cavallaro may not have 'followed the book' in giving those tests, the transcript convinces the Court that he administered them competently and fairly. Thus even if the Court does not consider at all the alleged failure of the plaintiff on the HGN test, it finds that the Hearings Officer could reasonably have concluded based upon the plaintiff's performance on the other two tests that he was impaired on the night in question. The Court is not impressed with the plaintiff's argument that the area in which those tests were given was somehow improper". |
Ouellette v. Beecher, 99-E-487, (SD Hillsborough, Hollman, 3/1/00) AFFIRMED
Arrested for DWI; plaintiff argued that HGN should not be considered because it is a scientific test which the officer was not experienced to administer; court determined that HGN was a valid FS test, citing State v. Arsenault; plaintiff also argued that back problems affected her performance on the FS tests; court held that "The officer testified that petitioner informed him she had a bad back just before performing the 'walk and turn' test. However, petitioner did not testify to this herself at the administrative hearing. She did not provide any corroborating evidence of medical problems which affected her ability to adequately perform the field sobriety tests. In addition, the officer testified that he observed signs of intoxication other than petitioner's substandard performance on the field sobriety tests, including glassy, bloodshot eyes and slurred speech". |
Fitts-Cloonen v. Beecher, 99-E-277, (SD Hillsborough, Dalianis, 10/29/99) REVERSED
Arrested for DWI; plaintiff advised officer that she had a medical condition which gave her balance problems and was taking medication for that condition; officer did not make any modifications to tests; court held that "… Officer Kilkelly admitted at the ALS hearing that he could not tell whether or not the petitioner's performance on the field sobriety tests was a result of impairment or a result of her medical condition. Therefore, the court finds that there was no probable cause to arrest the petitioner for DWI". (NOTE: cross-reference to accident section) |
Bobek v. Beecher, 99-E-184, (ND Hillsborough, Conboy, 10/13/99) AFFIRMED
Arrested for DWI; plaintiff claimed that FS tests were coerced; court held that "… although the petitioner initially refused to come outside and perform the tests, he changed his mind and agreed to do so after Trooper Bolduc explained his concerns that the petitioner was under the influence of alcohol. There is simply no evidence from the record that Trooper Bolduc used any force, threats or other coercive tactics to make the petitioner perform the tests against his will". (NOTE: cross-reference to accident; Section I, above; and Section IV of refusal) |
Mertzig v. Beecher, 99-E-283, (ND Hillsborough, Sullivan, 3/24/00) AFFIRMED
Arrested for DWI; plaintiff alleged that FS tests were coerced because officer led him to believe that he could go home after the tests, regardless of how he performed; court held that "it is a matter of common sense that a person who performs poorly on a field sobriety test will not be able to get back in his/her vehicle and drive home; court concluded that "… Officer Knox did not use any other coercive tactics to make the petitioner perform the tests against his will", citing State v. McDermott. (NOTE: cross-reference to Section I of grounds for stop and Section I of refusal) |
Clark v. Beecher, 99-E-138, (Grafton, Smith, 12/20/99) AFFIRMED
Arrested for DWI; plaintiff alleged that she told officer of her numerous medical conditions, including a nerve stimulator implanted into her neck from a previous accident, compound fractures of the tibia and fibula, a broken heel one year earlier and not having her glasses with her, as well as taking numerous medications; officer gave her 4 FS tests; Hearings Examiner did not consider results of walk-and-turn test or one-leg stand but did consider the HGN and Romberg balance tests; court held that "Even if this Court were to reject the results of all four field sobriety tests conducted by Officer Yip, the undisputed facts still show that the petitioner admitted that she had been drinking, had taken several prescription medications before driving, and had been involved in a single car accident in the middle of the night", citing State v. Arsenault. |
Hadlock v. Beecher, 99-E-21, (Merrimack, McGuire, 7/19/99) AFFIRMED
Arrested for DWI; plaintiff alleged that he informed officer that he could not perform one-legged stand because of back problems but that officer never inquired further into physical limitations impacting reliability of tests; court held that "Petitioner fails to cite any laws, regulations or training standards, and the Court's research has uncovered none, providing that an officer is obligated to do so". (NOTE: cross-reference to Section V of procedural issues involving ALS cases) |
Zackular v. Beecher, 98-E-695, (Rockingham, Coffey, 3/31/99) AFFIRMED
Arrested for DWI; plaintiff alleged that Horizontal Gaze Nystagmus (HGN) test should not have been considered because it lacks scientific evidence to prove reliability; court held that "… the officer's administration and interpretation of such test was offered, along with his additional observations, as a basis for his reasonable belief that Petitioner was under the influence of alcohol. While not scientifically infallible, the results of such field testing may validly be considered by the officer in determining whether he has probable cause to arrest … and it was considered below only for that limited purpose". |
Draper v. Beecher, 98-E-320, (Merrimack, Manias, 3/18/99) AFFIRMED
Arrested for DWI; plaintiff alleged that the results of the one-legged stand and walk/turn test should not have been considered since they were unreliable to a person of his height and weight; court held that "The Hearings Examiner adequately considered this issue and noted that, even according to the field sobriety testing manual submitted by appellant, the tests were not per se invalid for overweight individuals. The Hearings Examiner further credited the arresting officer's representation that after considering appellant's height and weight, he felt that it did not unfairly affect his ability to perform the tests". (NOTE: cross-reference to Section V of procedural issues involving ALS cases) |
Cerullo v. Beecher, 97-E-450, (Rockingham, Barry, 2/18/98) AFFIRMED
Arrested for DWI; plaintiff alleged that Horizontal Gaze Nystagmus (HGN) test should not have been considered because it lacks scientific evidence to prove reliability; court held that "The HGN test results, as well as the results of the other field sobriety tests and the arresting officer's other observations of the plaintiff's condition, all go to the officer's determination that there was probable cause to arrest the plaintiff. Contrary to the plaintiff's assertions, the Court's ruling in State v. Balukas, No. 96-S-251 to 253, (Rock. County Super. Ct. Oct. 29, 1996) is inapposite, as it goes to the admissibility of HGN test results for the purpose of determining actual impairment, rather than to the reasonability of the arresting officer's grounds to believe that the plaintiff was impaired". (NOTE: cross-reference to Section I of procedural issues involving ALS cases) |
Wolters v. Beecher, 96-E-143, (Strafford, Abramson, 11/14/96) AFFIRMED
Arrested for DWI; plaintiff challenged the manner in which the FS tests were conducted, focusing on the amount of traffic on the highway at the time the tests were administered; court held that "… the conditions under which the petitioner was tested were not ideal, however, the petitioner has not demonstrated, by a clear preponderance of the evidence, that the decision of the Hearings Examiner to accept the field sobriety tests as an adequate basis for probable cause was unreasonable or illegal". (NOTE: cross-reference to anonymous complaints and Section IV of refusal) |
Walsh v. Beecher, 95-E-327, (ND Hillsborough, Sullivan, 2/9/96) AFFIRMED
Officer stopped vehicle for yellow line violations; detected strong odor of alcohol; performed poorly on FS tests; obvious signs of confusion and inability to concentrate; arrested for DWI; court held that "the petitioner attempts to blame his actions on his age and physical condition (a recent prostate operation), but the fact is that even after accounting for the petitioner's age and physical condition, the evidence before the director clearly supports the decision of the director …"; court further stated that "he elected to drive despite his condition". (NOTE: cross-reference to Section II of refusal) |
Kovar v. Beecher, 95-E-65, (Grafton, Smith, 11/13/95) REVERSED
Officer stopped vehicle for defective equipment (taillights); detected odor of alcohol; plaintiff indicated he had "a few beers; plaintiff failed FS tests; arrested for DWI; court held that there was no other indicia of impairment other than odor of alcohol and "… that the petitioner was arrested because of his performance on field sobriety tests"; court concluded that officer had not demonstrated qualifications for FS testing; "the officer openly admitted that he was not trained on scoring field sobriety tests, could not recall having any training on 'Standard Field Sobriety Tests' and that his first arrest for Driving While Intoxicated was the petitioner's"; insufficient probable cause for an arrest, citing State v. Birmingham and State v. Slayton. |
Howe v. Beecher, 95-E-374, (Rockingham, McHugh, 11/3/95) AFFIRMED
Officer stopped vehicle for erratic operation; detected odor of alcohol; bloodshot eyes; plaintiff admitted having a couple of beers; plaintiff refused to get out of vehicle to perform FS tests and was allowed to do so in vehicle which he failed; arrested for DWI; "in 20 years of judging these cases, this Court has never seen a situation where the police elected to give a field sobriety test to an individual in a motor vehicle after that individual has refused to get out of it"; therefore plaintiff's claim that FS tests had no validity could not be determined; "… because those tests were never performed, as the plaintiff refused to get out of his vehicle, the Court cannot speculate as to what the results would have been". (NOTE: cross-reference to Section II of grounds for stop; Section I of refusal and Section I of procedural issues involving ALS cases) |
Mafera v. Turner, 95-E-23, (Rockingham, McHugh, 2/23/95) AFFIRMED
Officer stopped vehicle in parking lot for erratic operation; failed five FS tests; arrested for DWI; plaintiff claimed that her age (61 years old) and physical limitations (eye and leg problems) prevented her from satisfactorily performing FS tests; "the plaintiff seems to be suggesting that because of her age and physical disabilities, the officer had no basis to arrest her. Hopefully what the plaintiff is not arguing is that a person of her age who has not communicated any physical difficulties to an arresting officer, but has some physical limitations is immune from arrest if she elects not to take a breathalyzer test. Obviously that is not the law. Moreover, it is unreasonable to expect the police to have a separate set of sobriety tests to give to individuals who fit different categories, such as age, sex, or physical dexterity … while it may be true that the plaintiff had some physical limitations that would have caused her to fail one or two of the tests, the Court determines that her failure of all of the tests was not due to any physical limitations that she had. That failure was due to her consumption of alcohol". |
Cook v. Turner, 94-E-218, (ND Hillsborough, Barry, 12/2/94) AFFIRMED
Officer stopped vehicle for erratic operation; detected moderate odor of alcohol; requested that she perform FS tests; plaintiff disabled and used cane; officer gave her HGN, finger-to-nose and balance, allowing her to use her cane; arrested for DWI; plaintiff claimed cane was taken away from her before FS tests were conducted and that she fell during balance test, injuring her back further; court credited officer's testimony and stated "plaintiff's testimony lacks credibility". |
White v. Turner, 94-E-133, (ND Hillsborough, Groff, 6/10/94) AFFIRMED
officer stopped vehicle for erratic operation; detected strong odor of alcohol; requested that he perform three FS tests; plaintiff indicated that he had back problem and was disabled; failed all three tests; arrested for DWI; court stated that while it was not contested that he was disabled, the effect of that disability on the balance and finger-to-nose test did not readily appear; "the fact that the defendant had a disability is not sufficient to require that his performance on these tests be excluded from consideration by the officers. The Court has taken his potential disability into account in judging the officers' determination of impairment". (NOTE: cross-reference to Section II of grounds for stop) |
Radcliffe v. Turner, E-92-382, (Belknap, O'Neil, W. , 2/18/93) AFFIRMED
IMPLIED CONSENT NOT ALS: Officer stopped vehicle for an expired inspection sticker; eyes bloodshot; detected strong odor of alcohol; would not respond if he had been drinking or not; requested to perform FS tests; arrested for DWI; plaintiff argued that there was no reason to conduct FS tests; "after observing plaintiff's bloodshot eyes and smelling a strong odor of alcohol on plaintiff's breath, the Court finds that it was not unreasonable for the officer to detain plaintiff for the purpose of conducting a field sobriety test to determine if plaintiff was impaired", citing State v. Handfield. |
Wargo v. Turner, 92-E-495-B, (SD Hillsborough, Mangones, 1/21/93) REVERSED
IMPLIED CONSENT NOT ALS: Officer stopped vehicle for erratic operation; detected obvious odor of alcohol; eyes glassy; plaintiff said he had nothing to drink; plaintiff failed four FS tests although plaintiff had knee problems; arrested for DWI; videotape of booking shown to court; "the Court has viewed the tape and notes nothing peculiar or unusual in plaintiff's conduct or physical aspect at the booking area. The booking took place shortly after the plaintiff's arrest and conduct at the scene. The matters depicted on the videotape do not show evidence of impairment. It does bear noting, however, that field sobriety tests are 'divided attention' tests and that they are mentally and physically more demanding than simply standing and speaking in a booking area. Thus, a differentiation between performance of field sobriety tests and standing in a booking room, would not be unexpected. However, even bearing in mind the potential reasons for a difference in observations, the 'photographic'representations of the videotape are persuasive". |
|
| III. Post Arrest Field Sobriety Tests |
Bonfanti v. Beecher, 02-E-116, (Carroll, O'Neill, 3/5/03) AFFIRMED
Stopped for erratic operation; police officer observed an odor of alcohol; Petitioner admitted to having consumed 2 beers; officer asked Petitioner to exit vehicles 3 times and Petitioner refused; officer then opened Petitioner's door, asked him to exit vehicle; Petitioner agreed; FST's were performed; arrested for DWI; Petitioner alleges he was under arrest when he exited vehicle and FST's were done post-arrest. Court held: "the examiner concluded that the police officer was investigating a DWI and did not make an arrest until he placed the respondent under arrest for DWI" … "Hearings Examiner Findings to be reasoned and supported by the evidence in the record. " |
Conroy v. Beecher, 02-E-79, (Grafton, Burling, 9/10/02) AFFIRMED
Stopped for wrong-way violation; police officer detected evidence of impairment; requested FST in order to confirm or dispel his suspicion; arrested for DWI; refused breath test; issue is utilization of FST results. Court held: In this case, the hearings examiner properly found that the petitioner was neither placed under arrest for DWI nor cited for wrong way violation until after the field sobriety tests were completed. |
Brennan v. Beecher, 98-E-155, (SD Hillsborough, Dalianis, 9/28/98) AFFIRMED
Arrested for DWI; plaintiff alleged that she had been placed under arrest prior to undergoing FS tests and therefore should have been advised of consequences of refusing FS tests; court held that "although the petitioner was asked to wait at the scene until Cpl. Toom arrived to administer the tests, she was not under arrest and thus the police were not required to advise her pursuant to RSA 265:87, I-a (Supp. 1997)", citing State v. Reid and State v. Pellicci; plaintiff also alleged that the FS tests were unreliable because of a head injury; court held that "Cpl. Toom testified that once the petitioner informed him of her brain injury, he gave some leniency in administering the tests … After administering the tests and in light of the totality of the circumstances, he believed her to be impaired by alcohol … The hearing examiner was entitled to determine the weight to be given to the field sobriety tests …"; finally, plaintiff alleged that there was no probable cause for arrest; "…the examiner was not unreasonable in finding that the petitioner admitted to consuming two alcoholic drinks, exhibited slurred speech, had difficulty finding her registration, exuded an odor of alcoholic beverages, had bloodshot and glassy eyes, and performed poorly during field sobriety tests"; sufficient probable cause for an arrest. (NOTE: cross-reference to Section II of grounds for stop) |
Gould v. Beecher, 97-E-243, (Merrimack, Brennan, 1/28/98) AFFIRMED AND LATER REVERSED ON MOTION TO RECONSIDER
Arrested for DWI; plaintiff alleged that he was under arrest before FS tests were conducted and therefore was subject to ALS warnings; court held that "… there is no question that the petitioner was 'seized' at the time he took the field tests. The court notes, however, that he was not closely held or physically restrained by the Troopers prior to the field tests"; "in other words there is no direct evidence that the troopers investigation had moved from suspicion to accusation, either subjectively, in the minds of any of the participants, or objectively, from the totality of the circumstances". (NOTE: there is very detailed analysis of the factors comprising probable cause from two different troopers; also SEE REVERSAL of this decision on Motion to Reconsider when Judge Brennan states that "the hearings officer relied on the inadmissible field sobriety tests when he decided to suspend the defendant's license. Because the inadmissible evidence was material to the hearing officer's decision, the officer's decision is reversed"!) |
Norton v. Beecher, 96-E-149, (Rockingham, Galway, 8/5/96) REVERSED
Arrested for Disobeying A Police Officer, contrary to RSA 265:4; transported to police station where FS tests were conducted and he was subsequently charged with DWI; issue was whether Implied Consent statute was triggered by an arrest for Disobeying A Police Officer; court held that it was, noting that …"the statute does not say that the person must be arrested for an alcohol-related offense or that the offense must have been committed because the person was under the influence … further … the statute does not provide that the arresting officer must believe that the person is under the influence when the initial arrest is made"; because the Implied Consent statute was triggered by the arrest for Disobeying A Police Officer, "the officer's failure to inform the appellant of the Implied Consent Law before Field Sobriety tests were administered renders the test results inadmissible as evidence in the ALS hearing". (NOTE: this decision has had great impact on ALS and DWI cases!) |
Roy v. Beecher, 96-E-100, (Merrimack, Manias, 6/14/96) AFFIRMED
Arrested for DWI; plaintiff claimed that officer failed to inform her of consequences for refusing to comply with post- arrest field sobriety testing, although she was not asked to perform any such tests; court held that "… the petitioner makes the technical argument that even though she did not undergo any post-arrest physical testing, Officer Bourn was required to inform her of her obligation to comply with instructions for such physical testing. The petitioner's argument strains common sense". (NOTE: cross-reference to accident section) |
Tremblay v. Beecher, 95-E-445, (SD Hillsborough, Brennan, 4/22/96) AFFIRMED
Arrested for DWI; claimed that he was arrested prior to the administration of FS tests; court held that "there are various levels of limited seizure and in this case the petitioner, as Officer Molinari confirmed, was not free to leave, but neither was he in custody. Since the petitioner was not under arrest RSA 267:87, II does not apply"; also questioned officer's training in FS tests; court held that "Officer Molinari presented evidence that he had been trained in the administration of field sobriety tests in the Police Standards and Training Program and the Nashua Police program … although he did not recite the exact problems for each test, his observations during each test(related directly to the test, and generally) were reasonably consistent with his training in field testing to determine evidence of impairment". |
Pare v. Beecher, 96-E-47, (Rockingham, Gray, 3/18/96) AFFIRMED
Officer stopped vehicle for speeding; following her from police station where she had just been as several officers had expressed concern about her driving since they had detected a strong odor of alcohol; officer again detected strong odor of alcohol; bloodshot and glassy eyes; slurred speech; failed FS tests; arrested for DWI; sufficient probable cause for an arrest; plaintiff also argued that officer was not properly trained in FS tests pursuant to RSA 265:85-a; court held that "… RSA 265:85-a applies only to post-arrest physical testing"; court further stated that officer was properly trained any way, "… the mere fact that Officer Lozowski testified that he was unaware that the source of his training manual was the guide produced by the National Highway Traffic Safety Administration does not require a finding that he was not trained to administer this battery of tests". (NOTE: cross-reference to Section I of refusal) |
McFarland v. Turner, 94-E-684, (Merrimack, Smukler, 3/4/94) AFFIRMED
Officer stopped vehicle for defective equipment; detected odor of alcohol; eyes glassy; admitted to having 4,5 or 6 beers; requested that he perform FS tests; plaintiff stated that he should have been advised of his implied consent rights prior to being given FS tests; court held that RSA 265:87 does not require implied consent warnings for pre-arrest FS tests, citing Coburn v. Turner, cited below; training at the Academy and through police department was sufficient to conduct FS tests as RSA 265:85-a does not apply to pre-arrest FS tests. (NOTE: cross-reference to section involving back of ALS form) |
Coburn v. Turner, 93-E-620, (Merrimack, McGuire, 2/18/94) AFFIRMED
Arrested for DWI; plaintiff claimed that he should have been advised of his implied consent rights prior to being given FS tests, pursuant to RSA 265:87; court stated that the prerequisites of RSA 265:87 do not apply to pre-arrest FS tests. (NOTE: there is an extremely detailed analysis of this issue in the opinion; also cross-reference to Section I of refusal) |
|
| IV. Miscellaneous |
Theodore v. Beecher, 07-E-0162, (N. Hillsborough, Abramson, 10/12/07) AFFIRMED
Petitioner claimed the evidence was not sufficient to establish that he was the operator because the truck was silver not white and that the officer lost sight of it and did not see him drive it. Court ruled that the evidence supported the finding because the officer testified she did not lose sight of it for long, white and silver look similar in the dark and she saw Petitioner run from the driver's side and throw the keys away. Hearings Examiner's decision was supported by the evidence. (See also Section 9, Issues Involving Chemical Tests) |
Sisk v. Beecher, 05-E-109, (Merrimack, Fitzgerald, 06/29/05) AFFIRMED
Petitioner appealed, alleging he was not required to take tests under RSA 265:84 because he was charged with RSA 318:2 possession of marijuana. Court ruled that implied consent law applied following arrest for any offense committed while DUI citing Saviano v. Director, 151 NH 315(2004). The test is reasonable grounds to believe under Jacobs. He also appealed on the issue of "actual physical control". He was asleep with keys in the ignition and engine running. Court affirmed under State v. Winstead, 150 NH 244 (2003). |
Barilla v. Beecher, 03-E-163, (Belknap, Barry, 10/21/03) AFFIRMED
Petitioner arrested for DWI; informed of ALS rights;submitted to a BAC test; tested at .12. Court held: "the respondent was fully advised of his rights and given the opportunity for a similar test to be conducted by a person of his choosing. " |
Poulicakos v. Beecher, 02-E-488, (Rockingham, Abramson, 2/12/03) Affirmed
Petitioner arrested for DWI;informed of ALS rights;refused chemical test:; challenged the Hearings Examiner's consideration of HGN test results. Court held: "… the Court need not decide whether …argument with respect to the HGN test is correct … the record … reveals ample evidence from which the Examiner could have concluded that Petitioner's license suspension was reasonable and just." |
Bellerose v. Beecher, 01-E-618, (Rockingham, Abramson, 3/5/02) VACATED
Plaintiff observed weaving within her lane; 2 police officers admitted her eyes were glassy but there was no smell of alcohol and that they had nothing else "to zing her on"; the police cruiser's camera recorded these events; subsequently, they turned off the microphone; court finds that the Hearings Examiner's finding that the officers' testimony was accurate and credible is clearly unreasonable, when it was clearly in conflict with the video recording. |
Drew v. Beecher, 00-E-85, (Merrimack, Fitzgerald, 3/2/01) AFFIRMED
Petitioner claims that his license suspension was unlawful because the Officer lied about his opinion of petitioner's performance on the FST's and offered to limit the charges against him in exchange for his cooperation with the breath test;Court "notes that it does not appear that this issue raised about the officer's dishonesty in enticing him to take a breath test, is an issue that may be raised in an ALS hearing. See RSA 265:91-b, II (NOTE: Section 1, IV Miscellaneous and Section 9, IV Miscellaneous, Issues Involving Breath tests) |
Wain v. Beecher, 00-E-64, (Rockingham, McHugh, 4/14/00) AFFIRMED
Arrested for DWI - Drugs; plaintiff claimed that he was arrested for an illegal violation of RSA 265:82; "It is important to note that although violations of RSA 265:82 generally involve intoxicating beverages, the statute is not limited to such violations. In fact the title to RSA 265:82 is Driving Under the Influence of Drugs or Liquor. The Legislature has passed this statute to protect the public from impaired operators of motor vehicles and it makes no difference if that impairment is due to drugs or alcohol. Thus even though the arresting officer did not find the telltale signs of alcohol consumption when he stopped the plaintiff, he did find sufficient evidence of impairment due to drugs and thus his request for a chemical test was reasonable. The plaintiff now must suffer the consequences of failing to take that test". |
Grant v. Beecher, 99-E-421, (Rockingham, McHugh, 11/9/99) AFFIRMED
Officer responded to plaintiff's home in response to complaint of a motor vehicle encounter with a person believed to be intoxicated and combative; plate number came back to plaintiff; arrested for DWI; plaintiff claimed that arrest was illegal because it occurred without a warrant and without exigent circumstances, since unlikely that plaintiff would leave his home to drive; court held that "… they had reason to believe that the plaintiff had recently operated a motor vehicle in an intoxicated condition. They therefore had the right to order him to submit to both a field sobriety and chemical test. When he refused, the officers had the authority to arrest him without a warrant because of the exigency in getting a valid chemical test. A delay could result in the loss of potentially important evidence, namely blood alcohol content, which might be valuable to either the State or the plaintiff". (NOTE: very detailed written opinion; court also cited recent New Hampshire Supreme Court case of State v. Ricci which involves "hot pursuit") |
Eldridge v. Beecher, 99-E-97, (Grafton, Smith, 10/12/99) AFFIRMED
Officers dispatched to parking lot of building because Dartmouth College security officers had been following vehicle that almost ran them off road; security officers never saw plaintiff in vehicle, never saw vehicle running and never saw keys to vehicle; plaintiff indicated that security officers never saw him driving and that he "… just wanted to go home and go to bed"; arrested for DWI; plaintiff claimed that arrest was illegal because it occurred without warrant and without exigent circumstances; court determined that there was no probable cause to believe that plaintiff would resume driving but that such an error did not require reversal; first, court held that "… there was probable cause to believe the petitioner was driving while intoxicated. The DSS officers informed Officer Paulsen that the petitioner was the operator of the vehicle that they had been following … The officers detected an odor of alcohol on the petitioner's breath, observed that his speech was slurred and that there was a slight mumbling of his words … The petitioner admitted that he had been drinking and had had 'way too much' … He also performed poorly on the three field sobriety tests administered by Officer Zuger"; second, court held that there were exigent circumstances because "Any significant delay in taking the breathalyzer test could result in the loss of evidence within the meaning of the 'destroy or conceal evidence' provision of RSA 594:10, I (c) … when coupled with the time of the incident in this case - 2:00 a.m. - the combination is sufficient to justify a warrantless arrest", citing State v. Leary and State v. Schneider. |
Joos v. Beecher, 99-E-174, (Merrimack, McGuire, 8/13/99) AFFIRMED
Arrested for DWI in driveway after snowmobile, which was unregistered and travelling upon a public way, crashed into a tree; plaintiff claimed that he could not be arrested without warrant because driveway was a "private" area; "Even assuming that the officer knew this was the appellant's driveway, as opposed to a road or snowmobile trail, the officer, like a neighbor or any other member of the public with a legitimate reason for entering another's property, had an implied invitation to use the driveway. In this situation, the officer's investigation of the appellant's operation of an unregistered snowmobile on a public way constituted such a legitimate reason. Moreover, there are insufficient circumstances to support a finding that the driveway was a 'private' area. For example, the driveway was not blocked by a gate or posted with a 'No Trespassing' sign", citing State v. Pinkham. (NOTE: cross-reference to Section I, above) |
Piper v. Beecher, 99-E-163, (Merrimack, Manias, 6/24/99) AFFIRMED
Arrested for DWI in driveway; plaintiff alleged that arrest was illegal because it occurred without warrant, in non-exigent circumstances for a violation not occurring in officer's presence; court held that "… there is no dispute that Officer Casey had probable cause to believe that the petitioner committed the violation-level of driving while intoxicated … evidence of the petitioner's intoxication would have been destroyed if Officer Casey attempted to obtain an arrest warrant; court further held that "… the petitioner admitted that she had been driving minutes before Officer Casey arrived on the scene. Under these circumstances, there was probable cause for Officer Casey to conclude that the petitioner would resume driving, and the warrantless arrest of the petitioner was authorized to prevent the danger of personal injury or property damage", citing State v. Schneider and State v. Leary. |
McCaughey v. Beecher, 99-E-40, (SD Hillsborough, Dalianis, 4/28/99) AFFIRMED
Arrested for DWI; plaintiff alleged that she was asked questions in violation of her Miranda warnings; court held that "… the examiner's conclusion that the petitioner was not in custody when the officer questioned her to be reasonable. Only one officer questioned the petitioner and, up until the point of formal arrest, the officer did not physically restrain the petitioner. A reasonable person in the petitioner's position would not have believed that during a routine traffic stop she was so restrained that she was effectively in the custody of the police". (NOTE: cross-reference to Section V of procedural issues involving ALS cases) |
Doyon v. Beecher, 98-E-40, (ND Hillsborough, Groff, 4/23/99) AFFIRMED
Officer investigated argument in lobby of police department; while talking to plaintiff about incident, observed odor of alcohol and glassy eyes; failed FS tests; arrested for DWI; plaintiff claimed that arrest was unlawful because the offense did not occur in the presence of the officer and there were no exigent circumstances; "Clearly, based on the Officer's observations and the petitioner's admissions, probable cause existed to believe that the petitioner had been driving a motor vehicle while under the influence of intoxicating liquor. The delay to obtain a warrant would delay the administration of the breath test. The metabolism of the alcohol in the petitioner's body during this period would result in a loss of evidence of the petitioner's condition of impairment at the time of the offense. The arrest was lawful under RSA 594:10(c)". |
Corcimiglia v. Beecher, 98-E-223, (Strafford, Mohl, 4/16/99) AFFIRMED
Officer investigated accident; arrested for DWI; plaintiff claimed that warrantless arrest was unlawful because the offense did not occur in the presence of the officer; court held that "… RSA 265:83 applies to people suspected of committing DUI and of committing offenses of which DUI is an element. According to the court's construction of RSA 265:83 … Officer Bealand was authorized to arrest the petitioner for DUI without a warrant"; plaintiff also claimed that he was asked questions in violation of his Miranda warnings; court held that "Admittedly, Officer Bealand asked the petitioner twice to come outside to answer questions and was eventually joined at the petitioner's house by a second police officer. However, the petitioner voluntarily came outside to speak with the officers after conversing inside the house with his wife. Once outside, he voluntarily answered Officer Bealand's questions"; finally, plaintiff alleged that vehicle was searched in his driveway without a warrant; court held that "… Officer Bealand had a 'legitimate reason for entering the property'… Specifically, he was investigating an accident involving a vehicle that was both registered to the petitioner's address and was in plain view in the petitioner's driveway with front-end damage … The petitioner notes that the officer used a flashlight to view the damage to the vehicle … The fact that the officer may have used a flashlight to better inspect damage that was otherwise apparent does not take the officer's search out of the purview of the plain view doctrine". (NOTE: cross-reference to accident section and Section V of procedural issues involving ALS cases; also, very detailed opinion on legislative intent of RSA 265:83 as well as Miranda issue!) |
Carta v. Beecher, 99-E-8, (Rockingham, Murphy, 3/30/99) AFFIRMED
Officer dispatched to investigate pickup truck stopped off of Route 101 with two people fighting inside; plaintiff's face bloody and bruised; plaintiff refused medical treatment; arrested for DWI; plaintiff claimed that arrest was unlawful because the offense did not occur in the presence of the officer and there were no exigent circumstances; court held that "… the evidence supports a finding of exigent circumstances. Prior to his arrest the plaintiff refused treatment. Therefore, if Trooper Cooper did not make the driving under the influence arrest, the plaintiff would have been towed absent the plaintiff's arrest. Thus, there was a risk that he would continue to drive, in an impaired state, unless arrested. Under these circumstances, the Court finds that Trooper Cooper had probable cause to believe the plaintiff might resume driving. Therefore, the Court finds and rules that the warrantless arrest was authorized to prevent further personal injury or property damage". |
Holahan v. Beecher, 98-E-517, (Rockingham, Galway, 12/3/98) AFFIRMED
Arrested for felony Reckless Conduct; subsequently, charged with DWI; plaintiff claimed that, since he was not arrested for a motor vehicle offense under RSA 265:84, he did not have duty to consent to chemical test; court held that "… Officer Morelli had the intent, from reading Miranda and the ALS form, to place the petitioner under arrest while at the Derry Police Department for operating under the influence in addition to the previous charge of felony reckless conduct … The Court agrees with the determination of the hearings officer that it would be illogical to require the police to release the petitioner from custody on the charge of felony reckless conduct in order to be able to rearrest him on the charge of operating under the influence nor does petitioner cite any case law supporting such a theory". (NOTE: cross-reference to Section I of procedural issues involving ALS cases) |
Luzis v. Beecher, 98-E-240, (Merrimack, McGuire, 10/21/98) AFFIRMED
Arrested for DWI; plaintiff claimed that arrest was unlawful because the offense did not occur in the presence of the officer and a warrant was not obtained; court held that "When witnesses informed Sergeant Carroll that the petitioner was 'hammered' and operating a vehicle, he was on foot patrol. He radioed the information he had to Officer Wimpey. While the testimony is unclear, at some point Sergeant Carroll did arrive at the scene of the arrest. Petitioner admitted to Officer Wimpey that he had driven the vehicle to its present location and that he had just left Forefather's where he had consumed four or five beers. It was late at night and it would have been difficult to quickly obtain an arrest warrant … The need to make a timely determination of the level of alcohol in petitioner's blood coupled with special circumstances, specifically, the report to a foot patrol officer of a potentially intoxicated driver, created sufficient exigent circumstances to justify petitioner's warrantless arrest by Officer Wimpey". (NOTE: detailed opinion citing several cases pertaining to warrantless arrests) |
Dinsmore v. Beecher, 97-E-302, (Rockingham, Gray, 9/30/97) AFFIRMED
Arrested for DWI; plaintiff alleged that tests were given over one and a half hours after being informed of the incident leading up to police contact and that plaintiff had ingested two beers since the incident; court held that "… it does not take expertise beyond that possessed by experienced police officers to enable such an officer to reach supportable conclusions regarding an individual's degree of impairment one hour to one and one half hour previous when the officer is told the amount ingested in that time period. In other words, the officer is quite capable of making an accurate assessment that 'you can't get that drunk on two beers in one hour'". |
Pinkham v. Turner, 94-E-414, (Rockingham, Coffey, 11/21/94) AFFIRMED
Arrested for DWI in his driveway; plaintiff claimed that he could not be arrested without warrant because there was a reasonable expectation of privacy in his driveway; court held that there were exigent circumstances; "the fact that the delay inherent in obtaining a warrant at night can often be great, combined with the recognition that time factor is significant in relation to the metabolization of alcohol, is sufficient for the Court to find that exigent circumstances existed in this case". (NOTE: there is detailed analysis of several cases involving exigent circumstances in the written opinion; also cross-reference to anonymous complaints and actual physical control sections) |
Cardin v. Turner, 93-E-392, (Merrimack, Arnold, 9/7/93) AFFIRMED
Officer stopped vehicle at tollbooth because of citizen complaint; detected slight odor of alcohol; eyes glassy; speech slurred; plaintiff failed three FS tests; plaintiff denied he performed that many FS tests and made mention of fact that once tests were completed, trooper told plaintiff to wait in his car while she walked to cruiser and brought it over to location; court held that "while the Court questions the judgment of the trooper in placing the plaintiff in his car following her determination that the plaintiff was impaired, the Court finds her testimony credible as to her judgment that the plaintiff was impaired and the timing of that determination". (NOTE: cross-reference to anonymous complaints section) |
Christensen v. Turner, 92-E-201, (Strafford, Mohl, 5/14/93) AFFIRMED
IMPLIED CONSENT NOT ALS:
Officer called to investigate complaint for barking dog; observed vehicle at high rate of speed in parking lot of apartment complex but officer could not do anything because a threatening dog was preventing him from leaving his cruiser; asked vehicle to stop over PA system but it did not do so; eventually searched for operator of vehicle, known to the officer as the plaintiff, to arrest him for Disobeying A Police Officer; charged him with DWI as well; court determined that arrest was proper; "while Court has some doubt as to the propriety of the officer's search of Christensen's residence prior to the arrest, the arrest in this case was proper. Christensen's act - refusing to stop - committed in the officer's presence was a misdemeanor". |
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