State v. O’Maley , ___ NH ___ (Slip Op. 2006-013) (9/5/07)

FACTS: On August 1, 2005, the defendant was involved in a single vehicle crash and subsequently was arrested for DWI and brought to the hospital for treatment of his injuries. After being advised of the ALS rights, the defendant agreed to have his blood drawn and tested to determine his alcohol level. A medical technician drew the blood and completed the standard blood sample collection form. The sample was later tested at the State laboratory. The assistant laboratory director, Dr. Michael Wagner, reviewed the test results, ensured that the sample and results complied with the appropriate administrative rules, determined the reported value of the blood test results, and documented his findings in a report. At trial, Dr. Wagner testified that the defendant’s blood alcohol content was a 0.14. The technician who initially drew the blood and the analyst who performed the test on the blood did not testify. The defendant appealed his conviction, asserting that the trial court violated his right to confrontation under Crawford by admitting the blood collection form, and allowing Dr. Wagner to testify about the results of the blood analysis. He argued that, under Crawford, the State was required to offer testimony from the people that filled out the form and performed the blood analysis, or to prove that they were unavailable.

HOLDING: NH Supreme Court held that the admission of blood draw form and BAC analysis result through the certifying scientist, without testimony from the person that completed the form or the person that conducted the analysis, did not violate the defendant’s confrontation rights under Crawford.

For a more detailed analysis, see Attorney General’ September Newsletter

State v. Polk , ___ NH ___ (6/22/07)

FACTS: The defendant was charged with aggravated DWI for attempting to "elude pursuit by a law enforcement officer by increasing speed." At the close of the State’s case, the defendant moved to dismiss the complaint because the State failed to allege a mental state. The defendant also requested that the jury be instructed that the State was required to prove that the defendant acted purposely in attempting to elude pursuit. The court denied both requests. The defendant was found guilty and argued on appeal that the State was obligated to allege and prove a purposeful mental state with "respect to the material element of attempting to elude pursuit by a law enforcement officer by increasing speed."

HOLDING: Aggravated DWI, like DWI, is a strict liability offense that does not require proof of a culpable mental state. The element of "attempting to elude" is an aggravating factor that enhances the penalty.

Brendlin v. California , 127 S. Ct. 2400 (6/18/07)

FACTS: Officers stopped a car to check the registration without any reason to believe that it was being unlawfully operated. The officer recognized the defendant, who was the passenger, and upon verifying that he was a parole violator, arrested him, conducted a search of his person and found drug paraphernalia. The defendant moved to suppress the evidence, arguing that the officers lacked probable cause or reasonable suspicion to stop the car, therefore, it was an unconstitutional seizure. The trial court denied the motion. The California Court of Appeal reversed the trial court and the California State Supreme Court reversed the Court of Appeal, holding that a passenger is not seized as a constitutional matter barring any additional circumstances which would indicate he was the subject of the officer’s investigation.

HOLDING: When the police make a traffic stop for purposes of the Fourth Amendment, the passenger is seized and therefore may challenge the constitutionality of the stop.

FACTS: The Portsmouth PD petitioned the court for a court order authorizing a sobriety checkpoint on July 5th, 2005. The checkpoint was scheduled to run from July 8th into the early morning hours of the 9th and again from the 9th into the 10th. The order was issued July 7th, and upon receiving the order, the Chief sent out press releases to the local media. The next day, the first day of the checkpoint, the press release appeared in Foster’s Daily Democrat. At the checkpoint, five people were arrested and charged with DWI. Before trial, two of the defendants moved to suppress the evidence collected at the checkpoint. The district court granted the motion to suppress finding that the PD had stated in the petition that it would engage in "aggressive advance notice to the public," however it had failed to do so, and thereby failed to follow through with an essential element of a constitutionally permissible checkpoint plan. The State appealed.

HOLDING: The Court reviewed the petition to determine what the PD had committed itself to doing and found that the PD had followed through with that commitment by providing advance notice of the checkpoint by sending a detailed press release to many press agencies across the state. Further, the Court noted that while "aggressive" advanced notice is a worthwhile goal, it is not a constitutional requirement. While the Court did not state what would be constitutionally sufficient advanced notice, it did find that the timing and amount of advance notice in this case did not render the checkpoint invalid under the NH Constitution.

State v. Craveiro , ___ NH ___ 924 A.2d 361 (5/10/07)

FACTS: Defendant was charged with operating after suspension, second offense. The charges arose from when the police were out checking the roads for downed trees and flooding after a heavy rain. The officer had stopped to evaluate a heavily flooded area when he observed a car coming towards his cruiser at a slow rate of speed. The car pulled to the left of the cruiser, going into the water in the ditch line and continued around the cruiser. The car was going into deep water, however the car did not stall and the officer did not see any traffic offense. The officer was concerned for the safety of the vehicle, thought the actions of the driver were unusual, and told the driver to stop. The officer recognized the driver and knew he had been convicted of driving under suspension, but did not know if his license had been reinstated. The driver informed the officer he was still under suspension. While speaking with the defendant, the officer had to respond to an emergency. Knowing the defendant lived near-by, he told the defendant to "get the vehicle off the road," and let him go. The defendant moved to suppress evidence of the stop. The State argued it was justified under the community caretaking exception.

HOLDING: The Court rejected defendant’s argument that the community caretaking exception to the warrant requirement should not apply to the stop of a moving vehicle. However, it held that the motor vehicle stop was not justified under the community caretaking exception because the facts did not support a finding that the stop was justified as a routine and good faith attempt to safeguard the defendant’s property.

State v. Gagnon , ___ NH ___, 924 A.2d 384 (5/10/07)

FACTS: Firefighters were working just outside the fire station on Loudon Road in Concord when they heard screeching tires coming from behind them. A car, driven by the defendant, drove between them and went behind the station. It was going "way too fast." The defendant was charged with reckless driving. Before trial the defendant gave notice that he would not waive formal proof of ‘way.’ After the State rested its case, the defendant moved to dismiss for insufficient evidence of ‘way.’ The court took judicial notice that the parking lot was a way and denied the motion. At the close of the evidence, the court found that the State had not shown that the defendant acted recklessly, so the court found the defendant guilty of the lesser included offense of negligent driving. On appeal, the defendant argued that there was insufficient evidence that he operated on a ’way’ and that the court erred by taking judicial notice of that fact.

HOLDING: Rule of Evidence 201(a) permits a trial court to take judicial notice of a fact that is not subject to reasonable dispute if the fact is generally known or it can be readily determined by reference to accurate sources. The Court declined to find that it is generally known that the paved surface surrounding a fire station is a way. It also held that because the trial court did not identify any reliable source of information that it relied upon to determine that the paved area was a way, it could not conclude that the trial court properly took judicial notice.

(IMPORTANT NOTE: Although it was not addressed by the trial court, or the Supreme Court, there is an issue as to whether negligent driving can be a lesser included of reckless operation since the offenses have different definitions of ‘way.’ See RSA 259:125.)

State v. Pepin , ___ NH ___, 920 A.2d 1209 (5/01/07)

FACTS: The defendant was stopped shortly after midnight by the officer who heard the tires of the defendant’s car "squeal" when the light changed at the intersection. Upon performing a license check the officer learned the defendant was a habitual offender and arrested him for operating after having been certified as a habitual offender. On appeal, the defendant argued that the officer lacked reasonable suspicion to stop his car. The State argued that the stop was justified because the officer had reasonable suspicion of a violation of RSA 265:75, the road racing statute, or alternatively, that the officer had reasonable suspicion that the defendant was driving while intoxicated in violation of RSA 265:82.

HOLDING: The brief squeal of tires, without more, does not support a reasonable suspicion that the road racing statute had been, was or was about to be violated. The Court also held that beyond the brief tire squeal, there was no erratic operation or traffic violation to support reasonable suspicion of driving while intoxicated.

State v. Steimel , ___ NH ___, 921 A.2d 378 (4/04/07)

FACTS: The defendant was involved in a head-on collision around 10:00 p.m. on the Sunday before Labor Day. He was taken to the hospital for an injury to his knee. At the hospital an officer spoke with the defendant, with the defendant’s consent. The officer, who was a certified drug recognition expert, told the defendant that he suspected the defendant had taken heroin. The defendant denied taking any drugs. Upon further questioning, the defendant admitted that he had taken two Percocets earlier in the evening. The defendant was then arrested for aggravated driving while intoxicated, was read ALS, and the arresting officer then had a blood sample taken. Prior to trial, the trial court granted the defendant’s motion to suppress his statements to the officer based on an alleged Miranda violation, and to suppress the blood test results based on an alleged unreasonable warrantless search. The State appealed arguing that the defendant was not in custody during his conversations with the officer and that the warrantless blood draw was justified by exigent circumstances.

HOLDING: The defendant was not in custody because to the extent there was any physical restraint on the defendant’s movement, it was as a result of the actions of hospital staff and not because of the police. Further, the conversation between the officer and the defendant was mostly general and casual. With respect to the blood draw, the Court noted that it previously held that alcohol is metabolized in the body and any significant delay in taking a breath or blood test could result in the loss of evidence. Therefore, the Court saw no reason to reach a different conclusion in regards to controlled drugs. Because it was late at night on a holiday weekend, it would have been more difficult for the officer to obtain the warrant. Therefore, locating a magistrate would have risked the destruction of the evidence and a warrantless search was justified. The Court reversed and remanded.

State v. Hammell , ___ NH ___, 917 A.2d 1267 (3/06/07)

FACTS: The defendant was arrested after having been certified as a habitual offender. The contested issue at trial was the identification of the defendant. The State sought to admit a portion of the criminal record of Michael Hammell, specifically the portion describing tattoos and scars, to establish that the defendant was the same person who had been previously certified. It also wanted to admit a photograph from Michael Hammell’s DMV file. Both were introduced over the defendant’s objection. On appeal, the defendant asserted that the information from the criminal history record constituted inadmissible hearsay. The State agreed it was hearsay, but argued that it was admissible under one of two exceptions: Rule 803(8)(B)-Public Records, and Rule 803(6)-Business Records. Although Rule 803(8)(b) excludes "matters observed by police officers or other law enforcement personnel," the State argued that exclusion should be interpreted narrowly to apply only to observations made during an investigation. Because the observation of scars and tattoos is routine and objective, the State argued the information should be admissible.

HOLDING: The Court acknowledged that other courts have read into similar versions of Rule 803(8)(B) a requirement that the observations be made during an investigation. However, there was nothing in the record in this case to indicate how the information about the scars and tattoos was gathered and placed into Hammell’s criminal history record. The Court rejected the State’s argument of admissibility under 803(6), and stated that exception cannot be used to circumvent