State v. Cornelius

452 A.2d 464, 122 N.H. 925

• Court: Supreme Court of New Hampshire
• Decided: October 20, 1982
• Docket: 81-193, 81-252
• Status: Published

Opinions

Brock, J.

The principal issue in these consolidated appeals is whether the defendants’ constitutional rights were violated due to the State’s failure, while administering a breathalyzer test, to take an additional breath sample for their independent testing. We hold that neither the due process nor the equal protection doctrine requires that a defendant be provided with an additional breath sample so that an independent test may be performed by his own experts.

In the first of these cases, the defendant Cornelius was arrested in Epping at approximately 2:45 a.m., on November 16, 1980, and was charged with a first-time offense of operating while under the influence of intoxicating liquor, a violation. RSA 262-A:62 (current version at RSA 265:82 I). The breathalyzer’test administered to him indicated a blood-alcohol level of .21 percent. Cornelius’ pretrial motion to suppress the test results was denied by the Superior Court (Temple, J.). The trial judge found Cornelius guilty, stating, however, that had the breathalyzer test result been suppressed, a reasonable doubt as to Cornelius’ guilt would have existed. The defendant appealed.

In the second case, the defendant Jones was arrested in Tilton at approximately 2:00 a.m., on March 9, 1980, and charged with the same violation. A breathalyzer test administered to him showed a blood alcohol content of .20 percent. Jones’ motion in advance of trial to suppress the admission of the test result, because the State had failed to preserve an additional breath sample for his own analysis, was transferred without ruling to this court by the Laconia District Court (Huot, J.).

Both breathalyzer tests were performed on Smith & Wesson Model 900 A instruments, which are currently in use throughout New Hampshire. The instrument measures blood-alcohol content by analyzing a known quantity of deep lung — alveolar—air. (For a more complete description of the test methodology, see State v. Baker, 56 Wash. 2d 846, 851-52, 355 P.2d 806, 809 (1960)). The test ampoule is destroyed in the course of the test.

Recently, in State v. Shutt, 116 N.H. 495, 363 A.2d 406 (1976), this court rejected the argument that when the State elects to administer a breath test under RSA 262-A:69-a (current version at RSA 265:84), the provisions of RSA 269-A:69-b (current version at RSA 265:86) impose a duty on the State to perform an additional test for the defendant’s personal use. The court also held that the procedures provided for in RSA 269-A:69-b (current version at RSA 265:86), and those used by the State in the statute’s implementation, did not violate due process. State v. Shutt, 116 N.H. at 496-97, 363 A.2d at 407-08. We find no merit to the additional argument made by the defendants in these cases that equal protection considerations compel a different result, and we conclude that because RSA 262-A:69-b (current version at RSA 265:86) permits a defendant to have an additional test performed by a person of his choosing, the provisions of RSA 262-A:69-a and -b (current versions at RSA 265:84 and :86) do not violate due process. State v. Shutt, 116 N.H. at 497, 363 A.2d at 408. Although the defendants suggest that this right is illusory due to the practical difficulties of making timely arrangements for such tests, the record in these cases fails to support such a finding.

The evidence before us indicates that since Shutt was decided, advances in technology have occurred, making it possible for the State, at reasonable expense, to take and preserve an additional breath sample or its functional equivalent for the defendant’s later use, and for information of some value to be obtained from “used” ampoules. We are not prepared, however, to conclude that a statute and the procedures employed in its implementation, which passed constitutional muster in 1976, have because of these technological advances become constitutionally infirm in 1982. It is sufficient to emphasize that as technological advances occur, the use of which by law enforcement authorities will better enable the State to make more meaningful and real the rights guaranteed citizens under our constitutions, the dictates of basic fairness may require that the State avail itself of such technology. Accordingly, our order is

No. 81-193, appeal dismissed;

No. 81-252, remanded.

Bois, J., concurred; Douglas, J., concurred specially; Batchelder, J., dissented, with whom King, C.J., concurred.