State v. Berry

428 A.2d 1250, 121 N.H. 324, 1981 N.H. LEXIS 310

• Court: Supreme Court of New Hampshire
• Decided: April 17, 1981
• Docket: 80-389
• Status: Published

Opinions

King, J.

The issue in this case is whether the results of a blood test which was taken over the defendant’s objection while he was under arrest for driving while under the influence of intoxicating liquor and after grounds for a charge of negligent homicide had arisen must, by virtue of RSA 262-A:69-e (Supp. 1979), be excluded from evidence in a subsequent prosecution for negligent homicide. We hold that the admission of the blood test results is prohibited by the statute in these circumstances.

An accident occurred at approximately 1:15 a.m. on October 6, 1979, involving a vehicle driven by the defendant and another vehicle in which there were three persons. The defendant was arrested for driving while under the influence of intoxicating liquor. RSA 262-A:62 (Supp. 1979). At about 2:45 a.m., in the X-ray room of the hospital to which the defendant was taken because of his injuries, the police advised the defendant of his rights under the implied consent law, RSA 262-A:69. The defendant inquired as to the condition of the other persons who had been injured in the accident. Receiving no answer, he refused to consent to a blood test.

At 3:25 a.m., after learning that one of the injured persons had died, the police again asked the defendant to submit to a blood test. The defendant, who was then passing in and out of consciousness, repeated his refusal. Shortly thereafter, the police learned that the second of the three accident victims had died. Because it appeared that the defendant might be charged with negligent homicide, the police had a doctor take a sample of the defendant’s blood without his consent.

The defendant was eventually charged with negligent homicide. RSA 630:3 II. Prior to trial, he filed a motion to suppress the results of the blood test on the ground that the blood sample was taken without his consent. The Superior Court {Goode, J.) transferred the question to this court without ruling.

Under the provisions of the State’s implied consent law, any person who operates a motor vehicle upon the public highways is deemed to consent to chemical or other tests of his blood, urine or breath for the purpose of determining the alcohol or controlled drug content of his blood if he is arrested for any offense arising out of acts alleged to have been committed while he was driving a motor vehicle while intoxicated. RSA 262-A:69-a. This implied consent is not irrevocable, however, because RSA 262-A:69-e (Supp. 1979) allows a person to refuse to submit to the chemical test and specifically provides that “if a person under arrest refuses ... to submit to a chemical test . . . none shall be given” (Emphasis added.) Of course, a person refusing to submit to an officer’s request that he consent to a chemical test faces the possibility that the director of the division of motor vehicles will revoke his license to operate a motor vehicle. RSA 262-A:69-e (Supp. 1979); see Daneault v. Clarke, 113 N.H. 481, 484, 309 A.2d 884, 885-86 (1973).

It is undisputed that the defendant expressly refused to consent to the chemical test of his blood on two separate occasions and that the police had a sample of his blood extracted and tested against his will. Consequently, the only issue is whether the statutory language “none shall be given” means “none shall be given” or something else. In this State, statutory language is given its plain and common usage unless the language has a technical or otherwise peculiar meaning. Sant Bani Ashram, Inc. v. N.H. Dep’t of Empl. Security, 121 N.H. 74, 77, 426 A.2d 34, 36 (1981); RSA 21:2; see State v. Linsky, 117 N.H. 866, 874, 379 A.2d 813, 818 (1977). There is nothing in the briefs of the parties, or the legislative history of the implied consent statute, to indicate that the words “none shall be given” were intended by the legislature to mean other than that no chemical test shall be administered without the accused’s consent.

The State’s reliance upon Schmerber v. California, 384 U.S. 757 (1966), is misplaced. The warrantless taking of blood from a person under arrest without his consent is undoubtedly constitutional, and many cases have so held. None of these cases, however, dealt with a situation in which a statute plainly indicates that a blood sample shall not be taken if the subject refuses to consent. See State v. Riggins, 348 So. 2d 1209, 1211 (Fla. Dist. Ct. App. 1977), cert. dismissed, 362 So. 2d 1056 (1978).

The State’s assertion that the legislature could not have intended to give up the right to obtain chemical tests under the rule laid down in Schmerber or pursuant to a proper warrant is unpersuasive. Courts in other states have recognized that the legislature can confer upon individuals a statutory right to withhold consent even though there is no such constitutional right. See State v. Brean, 136 Vt. 147, 151-52, 385 A.2d 1085, 1088 (1978); State v. Stevens, 252 A.2d 48, 60 (Me. 1969). Furthermore, to substitute our understanding of what the legislature intended for the express language of the statute in this way would significantly interfere with the legislative prerogative, and we therefore will not look behind the express, unambiguous language of the statute. If the contours of criminal statutes are to be determined by the subsequent development of constitutional law, it seems superfluous to enact statutes at all.

The State argues that, assuming arguendo that RSA 262-A:69-e (Supp. 1979) does prohibit the taking of a blood sample over the accused’s objection, the protection afforded by that statute applies only to prosecutions under RSA 262-A:62 (Supp. 1979) and should not be extended to prosecutions for negligent homicide. The State offers no explanation, however, of why cases of negligent homicide should be treated differently from other cases. The attempt to restrict the scope of RSA 262-A:69-e (Supp. 1979) in this way, with no accompanying rationale, is especially unpersuasive in light of our previous holding that the provisions of the implied consent law apply to “any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor .'. . .” State v. Murgatroy, 115 N.H. 717, 719, 349 A.2d 600, 602 (1975) (emphasis in original); see RSA 262-A:69-e (Supp. 1979).

Finally, we reject the State’s assertion that RSA 262-A:69-e (Supp. 1979) does not require the exclusion of evidence obtained in violation of its terms. That the statute does not expressly require the exclusion of illegally obtained test results is not dispositive. The statute specifically provides that if the person’s consent is not obtained, no test shall be administered. This language clearly indicates the legislative intent to preclude the State from using the results of chemical tests of a person’s blood unless the person consents to the test. Had the legislature intended to allow the use of the results of chemical tests of a person’s blood, it certainly would not have adopted legislation stating that no test shall be given in the absence of consent.

In conclusion, we note that the exclusion of evidence of chemical test taken in violation of RSA 262-A:69-e (Supp. 1979) does not preclude the State from establishing that the accused was intoxicated. RSA 262-A:69-j explicitly preserves the right of the State to prove intoxication by other competent evidence. For the reasons herein stated, and because we believe the legislature to be the proper authority to correct any perceived deficiencies in RSA 262-AS:69-e (Supp. 1979), we hold that the results of a blood test taken in violation of the statute must be excluded from evidence in this case.

Remanded.

Grimes, C.J., and Bois, J., dissented; the others concurred.