State v. Costello

263 A.2d 671, 110 N.H. 182, 1970 N.H. LEXIS 125

• Court: Supreme Court of New Hampshire
• Decided: March 31, 1970
• Docket: 5935
• Status: Published

Opinions

Lampron, J.

Complaint charging that the defendant operated a motor vehicle on Route 101 in Keene while under the influence of intoxicating liquor in violation ofRSA 262-A:62. Upon trial, the district court (Davis, J.) found the following facts:

“On January 11, 1969, at approximately 12:40 A.M., Police Officer Hugh McClellan, on cruiser patrol, went to Route 101, in Keene . . . where he found an auto parked on the side of the road against a snow bank with the wheels on the paved surface; motor and heater running; and lights on low beam. He observed the Defendant in the front seat of the automobile with his ‘bottom’ in the driver’s seat and his head on the passenger seat. The officer, wondering if Defendant was having trouble, knocked on the window, and then banged the door. Getting no response the officer opened the door and shook awake the Defendant who had been sound asleep. The Defendant stated to the officer that he had gotten tired and pulled over to the side of the road to rest. The officer smelled an alcoholic beverage on the breath of the Defendant and arrested him for driving under the influence. The officer did not see the Defendant driving and did not know how long the Defendant had been parked at the side of the road.

“The Defendant was brought to the police station and Dr. Carl Bridge examined him for alcohol influence. In the opinion of the doctor the Defendant was slight to moderately under the influence of alcohol. The blood test was submitted by agreement and the alcoholic content reported was 0.17. The Defendant stated to the doctor that he had had four hours sleep the night before and none during the day.

“At the end of the State’s case the Defendant moved to dismiss the complaint on the ground that this fact situation did not constitute ‘operating or attempting to operate’ under the provisions of RSA 262A:62. The Defendant offered no evidence on his own behalf.”

All questions of law and issues arising out of the motion to dismiss were reserved and transferred, without ruling, to this court under the provisions of RSA 502 - A: 17- a.

To support a conviction that the defendant violated RSA 262-A:62, the State must prove beyond a reasonable doubt that the defendant operated or attempted to operate a motor vehicle upon a public way in this state while under the influence of intoxicating liquor. State v. Cardin, 102 N. H. 314, 316, 156 A.2d 118, 119; State v. Davis, 108 N. H. 45, 226 A.2d 873; State v. Slater, 109 N. H. 279, 249 A.2d 692. For the purposes of this transfer, there is no issue as to whether the defendant was on a public highway or under the influence of intoxicating liquor.

Direct evidence that the defendant was observed in the act of operating the motor vehicle is not an indispensable requisite to prove his operation. State v. Davis, supra, 50; People v. Schulewitz, 87 Ill. App. 2d 331, 337, 231 N. E. 2d 678, 680. Circumstantial evidence which establishes to a reasonable and moral cer - tainty so as to exclude any other rational conclusion that the defendant was operating- the automobile is sufficient to establish that he was the operator. State v. Amero, 106 N. H. 134, 136, 207 A.2d 440, 442; State v. Hutton, 108 N. H. 279, 289, 235 A.2d 117; IX Wigmore, Evidence ( 3rd ed. ), 5. 2497.

No claim is made that the evidence did not warrant the following findings of fact made by the district court. A police cruiser on patrol found an auto parked on the side of Route 101 in Keene at about 12:40 A. M. on January 11, 1969. Its wheels were on the paved surface, the motor and heater were running and the lights were on low beam. The defendant was sound asleep in the front seat with his “bottom” in the driver’s seat and his head on the passenger seat. The record before us shows no evidence of the presence of any other person in or in the vicinity of the car or of how the car arrived at that location.

We hold that the above findings made by the court and the absence of evidence which would explain how the car reached that location other than by virtue of defendant’s operation of it warranted a finding and ruling by the district court that the State had proved beyond a reasonable doubt that the defendant drove or operated the car. State v. Davis, 108 N. H. 45, 226 A.2d 873; State v. Englehart, 158 Conn. 117, 256 A.2d 231; Taylor v. United States, 259 A. 2d 835 (D.C.C.A., 1969); People v. Schulewitz, 87 Ill. App. 2d 331, 231 N. E. 2d 678; People v. Mundorf, 97 Ill. App. 2d 130, 239 N. E. 2d 690; Prudhomme v. Hulls, 278 N. Y. S. 2d 67, Cf. City of Mentor v. Giordano, 9 Ohio St. 2d 140, 224 N. E. 2d 343.

Remanded.

Grimes, J., dissented; the others concurred.