New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

C-Beyond with Centrix Bank - we help businesses see beyond to their true potential.

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Bar Journal - December 1, 2001

The Constitutionality of RSA 265:93

By:
INTRODUCTION

Both the United States Constitution and the New Hampshire Constitution guarantee an individual’s right to be "secure from unreasonable searches and seizures".1 In 1995, the New Hampshire legislature enacted RSA 265:93, which allows chemical testing of the blood of a driver involved in an accident resulting in death or serious bodily injury without a warrant or probable cause. This article analyzes and predicts the constitutionality of New Hampshire RSA 265:93, which has not yet been challenged in the New Hampshire Supreme Court, on the premise that it violates the Fourth Amendment to the United States Constitution and article 19 of the New Hampshire Constitution.

Five other states have enacted legislation similar to RSA 265:93. In this article, each of the five statutes will be analyzed to discern the constitutional elements from the unconstitutional elements, and how the court’s rationale may predict the outcome of a constitutional challenge to RSA 265:93. Each of these statutes will also be analyzed to determine constitutionality under the United States Constitution. There are two recurring similarities among these statutes: 1) they allow the seizure and chemical testing of a driver’s blood and permit introduction of the test results in a criminal, civil, or administrative proceeding despite the absence of a warrant or probable cause; 2) they have been challenged on the premise that the Fourth Amendment to the United States Constitution is violated because the chemical testing of the driver’s blood is admissible evidence without regard to warrant or probable cause requirements. New Hampshire RSA 265:93 states in pertinent part that,

When a collision results in death or serious bodily injury to any person . . . A law enforcement officer shall request . . . [the withdrawal of] blood from each driver involved . . . for the purpose of testing for evidence of alcohol content or controlled drugs; provided that in the case of a living driver the officer has probable cause to believe that the driver caused the collision. The report shall be made available to any highway agency for the use in compiling statistics to evaluate the effectiveness of its program and any person, including his legal representative, who is or may be involved in a civil, criminal, or administrative action or proceeding arising out of an accident in connection with which the test was performed.2

Like the other statutes, RSA 265:93 allows chemical testing of the blood from a driver who has been in an accident resulting in death or serious bodily injury, without requiring a warrant or probable cause that the driver was operating the vehicle under the influence. Moreover, once the officer directs the withdrawal of the driver’s blood, the test results may be used against the driver in a civil, criminal, or administrative proceeding. The Special Needs Exception to the probable cause and warrant requirements is discussed because this exception is the only avenue to constitutionality for these statutes under the United States Constitution.

SEARCH AND SEIZURE AND THE SPECIAL NEEDS EXCEPTION

An unreasonable search and seizure is one that is not premised by a warrant or does not fall within an exception to the warrant requirement. A warrant must be based on probable cause that a crime has been committed and the exceptions to the warrant requirements similarly require probable cause that a crime has been or is about to be committed.

The United States Supreme Court, in Skinner v. Labor Executives Association, recognized that in certain cases "special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable" and created the Special Needs Exception.3 In Skinner, the Supreme Court upheld the constitutionality of a federal regulation requiring that any railroad employee directly involved in a major train accident or an accident resulting in the fatality of a railroad employee provide blood and urine samples for testing to determine the presence of intoxicating substances.4 If intoxicating substances were found, not only would the employee be discharged, but also the chemical test results could be used against the employee in an administrative, criminal, or civil proceeding.

The Court created a five-prong Special Needs Exception test that, if met, would allow the gathering of evidence without the usual warrant and probable cause requirements. The five prongs are as follows: 1) The circumstances under which a blood or urine test is required must be narrowly and specifically tailored; searches can not be random or arbitrary acts of the government and those charged with authorizing the tests must have minimal discretion.5 2) Exigency must exist in that, because alcohol and drugs are cons quickly metabolized and eliminated from the body, time delays would frustrate the purpose behind the search and the delay necessary to produce a warrant may result in destruction of valuable evidence.6 3) The compelling governmental interest must not be unduly intrusive or invasive of the person’s privacy. The Fourth Amendment protects individuals from searches that are unreasonable. Reasonable searches are allowed when a governmental interest, such as public safety, outweighs the privacy interest of the individual.7 4) Regulations to further a compelling state interest cannot possess the underlying purpose of assisting the normal needs of law enforcement. Law enforcement officers normally need to obtain a search warrant or have probable cause to obtain evidence that can be admitted in a criminal proceeding. However, where the regulation was promulgated to "prevent accidents and casualties," and the burden of obtaining a warrant is likely to frustrate that purpose, a departure from the probable cause and warrant requirement is justified.8 5) The established procedures must promote a compelling governmental interest.

In applying the Special Needs Exception to other similar state statutes, Maine and Illinois have been upheld while Alaska, Illinois, Mississippi, and Pennsylvania have been held unconstitutional. The Illinois statute had originally been held unconstitutional, but has since been amended by the legislature to fall within the exception and was subsequently upheld. For this reason Illinois will be discussed it its own section.

STATUTES UPHELD UNDER THE SPECIAL NEEDS EXCEPTION

Maine

Maine statute M.R.S.A. 1312 mandates in pertinent part that:

Each operator of a motor vehicle involved in a motor vehicle accident shall submit to and complete a chemical test to determine that person’s blood alcohol level or drug concentration by analysis of the person’s blood, breath, or urine if there is probable cause to believe that a death has occurred or will occur as a result of the accident … The result of a test taken pursuant to this paragraph is admissible at trial if … probable cause exists, independent of the test result, to believe that the operator was under the influence of intoxication of liquor or drugs.9

The Maine Supreme Court held that this statute fell under the Special Needs Exception. The court applied the Special Needs Exception test from Skinner to the statute. First, the court found that the narrowly and specifically tailored requirement was met because the statute requires probable cause of intoxication, independent of the chemical test taken, to be proven for the test results to be admissible at trial. Second, the court found that because states face the same problems with testing delays, due to the perishable nature of substances in blood, the exigency prong is met. The court also determined that the statute was not overly intrusive because the minor intrusion occasioned is no more intrusive than that established in Skinner. Additionally, the court found that because the test results are only admissible at trial if there exists independent probable cause that the driver was impaired, the statute does not have the purpose of assisting the normal needs of law enforcement as required. Finally, court compared the governmental interest served in Skinner to the states’ interest and determined that it was "unable to conclude that the public’s interest in preventing highway fatalities resulting from drunk drivers was less compelling than the federal government’s interest in Skinner of ensuring safety in rail transportation, and that the statute furthered this compelling state interest."10

STATUTES HELD UNCONSTITUTIONAL UNDER THE SPECIAL NEEDS EXCEPTION

Alaska

Alaska statute, AS 28.35.031(g), provides in pertinent part that:

A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person’s breath and blood for the purpose of determining the alcoholic content of the person’s breath and blood … at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.11

The Alaska Court of Appeals found that this statute did not fall within the Special Needs Exception and, therefore, violates the Fourth Amendment.12 The court noted that one of the prongs in the Special Needs Exception test requires that a search performed without probable cause serve special societal needs other than the normal needs of law enforcement. The court determined that the statute did not serve any governmental need and merely was to provide police and prosecutors with an additional tool for law enforcement where no individualized suspicion is required. The court concluded that this assisted in the normal needs of law enforcement thereby failing the Special Needs Exception test.13

The court went on to state that even if the purpose of the statute was not for normal law enforcement, the statute would still fail to meet the requirements of the Special Needs Exception. The court applied the reasoning in Skinner emphasizing that where "the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, the search may be reasonable despite the absence of such suspicion". However, in this case, normal law enforcement needs would not be jeopardized by requiring the government to have individualized suspicion that the driver was under the influence before the chemical testing could occur.14 The Court further elaborated that although a serious accident could create an expectation of investigation by the persons involved, that expectation would not decrease a person’s expectation of privacy. Therefore, a literal application of the statute would be unduly intrusive and invasive to a person’s privacy, violating another prong of the Special Needs Exception test.15 After concluding that two of the Special Needs Exception test prongs were not met, the Alaska Court of Appeals did not elaborate on the remaining three prongs.

Pennsylvania

Pennsylvania’s statute, 75 Pa.C.S.A. § 1547(a)(2), states in pertinent part that:

Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle: which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.16

The Pennsylvania Supreme Court held this statute unconstitutional, stating that the Special Needs Exception requires the underlying purpose of the compelling state interest be beyond the normal needs of law enforcement, and the Pennsylvania statute did nothing more than further the government’s ability to collect evidence.17 The court found that the need of securing evidence that a driver is impaired "no matter how compelling . . . does not evince a special need that would justify departure from the probable cause requirements of the Fourth Amendment."18 Having decided that the statute’s underlying purpose was to assist in the normal needs of law enforcement, the court did not apply the remaining prongs of the Special Needs Exception test.

Mississippi

Mississippi statute, Miss. Code Ann. § 63-11-8, mandates in pertinent part that:

If any investigating law enforcement officer has reasonable grounds to believe that a person is the operator of a motor vehicle involved in an accident that has resulted in death, it shall be such officer’s duty to see that a chemical test is administered as required by this section. The results of a test administered pursuant to this section may be used as evidence in any court or administrative hearing without consent of the person so tested.19

The Mississippi Supreme Court held that it was not necessary to circumvent the constitutionally mandated probable cause requirement in order to aid law enforcement officials in their endeavor to identify those who have been driving under the influence.20 The court, in explaining the statute’s failure to meet the requirements of the Special Needs Exception, recognized that although the state undoubtedly has a compelling interest in preventing accidents involving alcohol and drugs on its roadways, this statute does nothing to further that interest. The court found that "[t]he tragic fact that a fatality arises out of a motor vehicle accident is no way, standing alone, an indicator that alcohol or drugs were involved. It is not overwhelmingly burdensome for an officer to establish probable cause to believe that a driver may be under the influence of alcohol or drugs."21

The court distinguished this statute from the Maine statute, noting that the Maine statute required individualized probable cause of driving under the influence before any such test results could be used in a trial.22 Then in comparing this statute to the unconstitutional Pennsylvania statute the court stated that like the Mississippi statute, the underlying purpose of the Pennsylvania’s statute was prosecutorial in nature, not preventative, because the statute was used to obtain evidence for use in criminal prosecutions. Furthermore, as in Pennsylvania, the Mississippi court determined that the interest of securing evidence that a driver is operating a vehicle under the influence is not a governmental interest that would fall within the Special Needs Exception.23 The Mississippi Supreme Court did not discuss the remaining three prongs of the Special Needs Exception test because neither the prong requiring the statute serve another purpose other than assisting in normal law enforcement, nor the prong requiring the statute to further a compelling state interest were met.

Illinois

The Illinois statute was originally found unconstitutional, but it has since been amended and upheld under the Special Needs Exception. Below is the statute in its original form and a discussion of why it was found unconstitutional. The following section provides the text of the amended statute and the reasoning the court used in finding that the changes were significant enough to have the amended statute fall within the Special Needs Exception.

The original Illinois statute, § 11-501.6 stated in pertinent part that:

Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent to … a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol or other drug content of such person’s blood if there is probable cause to believe that such person was the driver at fault, in whole or in part, for a motor vehicle accident which resulted in death or personal injury of any person. The results of any test performed under this section may be used as evidence in a civil or criminal proceeding.24

In King v. Ryan, the Illinois Supreme Court held the statute unconstitutional because the primary purpose furthers the law enforcement purpose of gathering evidence for prosecutions,25 and the statute is unduly intrusive or invasive because "an individual does not lose his reasonable expectation of privacy by virtue of his status as a driver."26 The court reasoned that the plain language of the statute, requiring probable cause that the driver is at fault for the accident, belies the argument of needing the Special Needs Exception because "if the officer is able to determine probable cause of fault for an accident he may not have witnessed, then it is not overly burdensome to require him to determine probable cause that a driver involved may have been drinking."27

In holding the statute unconstitutional, the Illinois court found that a similar statute could fall within the Special Needs Exception. Providing some guidance to the legislature, the court explained that, insofar as the statute is used to further the governmental interest of removing intoxicated drivers from the roadways while deterring others to drive while intoxicated without relying on criminal sanctions, it serves the State’s interests beyond the need for normal law enforcement. However, because this statute is also intended to gather evidence for use in a criminal proceeding, which furthers the normal needs of law enforcement, it does not fall within the Special Needs Exception.28

In essence, the Supreme Court of Illinois explained how to amend the statute so it could fall within the Special Needs Exception. Following the advice of the court, the Illinois legislature amended the statute, instituting four specific changes: (1) deleting the requirement that the chemical testing be premised upon a driver’s fault in causing the accident; (2) deleting the provision allowing the chemical test results to be used in a criminal or civil proceeding; (3) adding a provision requiring that the chemical testing be premised upon the issuance of a Uniform Traffic Ticket for a non-equipment traffic offense; and (4) more specifically defining the types of personal injuries that would trigger the chemical testing provision.29

The amended version of this statute was challenged on constitutional grounds, and the Illinois Supreme Court found the amendments to the predecessor statute sufficient for the statute to fall within the Special Needs Exception to the Fourth Amendment.30 The court did recognize that the new statute retained some provisions of the preceeding statute. Specifically, the amended statute retained the implied-consent provision, did not require individualized suspicion of chemical impairment, and accidents involving a fatality or serious bodily injury still triggered the testing.31 Additionally, the amended statute retained the governmental interest of ridding the roadways of intoxicated drivers while deterring others from driving while under the influence. However, the court found this interest compelling and because the additional purpose of collecting evidence for the normal need of law enforcement was eliminated, the statute fell within the Special Needs Exception.32 Finally, the court found that the results of the chemical test may still be used in a criminal proceeding against the driver. However, the court distinguished the two statutes by explaining that the original statute’s purpose was to collect evidence for criminal prosecution, where the amended statute specifically deleted this provision making the use of the test results in a criminal proceeding merely incidental.33 More specifically, the court noted that when evidence is found incidentally during a search that is constitutionally valid under the Special Needs Exception, the admission in a criminal proceeding is incidental to the statute’s primary purpose, and application of the Special Needs Exception is not precluded.34

The Court further stated that the amended statute is narrowly and specifically tailored as required under the Special Needs Exception. The spectrum of drivers tested was limited to drivers involved in accidents resulting in serious bodily injury or death, or those drivers who are issued a Uniform Traffic Ticket for non-equipment offenses.35

The court further determined that by allowing testing in limited situations where the driver’s expectation of privacy is already diminished due to the high regulation of the roadways, there is only minimal additional intrusion from administration of a chemical test. This is true where the seriousness of an accident requires a driver, by law, to remain at the scene, and where a driver receiving a Uniform Traffic Ticket is already subject to restrictions.36

THE CONSTITUTIONALITY OF NEW HAMPSHIRE RSA 265:93 UNDER THE FEDERAL CONSTITUTION

The Compelling Governmental Interest

Like other states, New Hampshire’s statute possesses similar language recognizing the underlying goal of preventing roadway fatalities resulting from impaired drivers. Courts that have addressed this issue have recognized this goal as a compelling governmental interest for purposes of the Special Needs Exception. Similarly, New Hampshire courts have repeatedly upheld statutes where the purpose was to further public safety on the roadways. In upholding the habitual offender statute, the New Hampshire Supreme Court stated that it was intended to promote public safety "by removing irresponsible drivers from the highways of the State."37 The same court, when dealing with intoxicated drivers, has stated that "the legislature has clearly indicated that the risk to public safety posed by an intoxicated person can create an exigency sufficient to merit extraordinary action."38

While the statute has not yet been challenged on constitutional grounds, it is unlikely that the New Hampshire Supreme Court will accept preventing roadway fatalities cause by impaired drives as a compelling governmental interest. The statute implemented to further that interest must also satisfy all five prongs of the Special Needs Exception test to be found constitutional. An analysis of New Hampshire statute RSA 265:93 under this test, as compared and distinguished from the Maine, Alaska, Pennsylvania, Mississippi, and Illinois statutes will demonstrate that it would not fall within the Special Needs Exception and would, therefore, be held unconstitutional.

The Exigency Prong

All state statutes analyzed within this article meet the exigency prong of the Special Needs Exception test. States face the same time delays that frustrate the purpose behind the search due to the perishable nature of alcohol and drugs.39 As such, New Hampshire’s statute will also satisfy the exigency prong of the Special Needs Exception test.

The Narrowly and Specifically Tailored Prong

The only statutes found to have met this prong are the Maine and the amended Illinois statutes. The Maine Supreme Court reasoned that its statute was narrowly and specifically tailored for two reasons. First, only accidents that result in death or the probability of death will trigger the chemical testing. More narrow, only where individualized probable cause that the driver was impaired exists will the chemical tests taken be admitted in a civil or criminal proceeding.40 The Illinois Supreme Court found that this prong was satisfied because the statute allows only those drivers who receive a Uniform Traffic Ticket for a non-equipment violation resulting from an accident causing serious bodily injury or death to be chemically tested.41

Similarly, New Hampshire’s statute, like the other statutes, requires an accident to result in death or serious bodily injury to trigger testing. Yet, Alaska, Mississippi, Pennsylvania, and the pre-amended Illinois statutes failed to meet the Special Needs Exception test. The major difference is that New Hampshire, Illinois (both versions of the statute), and Maine, have an additional requirement for the testing to be triggered beyond simply requiring the serious accident and are, therefore, more narrowly and specifically tailored.

New Hampshire’s statute provides that this testing can only be performed where an officer has probable cause that the driver was at fault for an accident resulting in death or serious bodily injury.42 The pre-amended Illinois statute, the statute most similar to New Hampshire’s, contained the same provision. The distinction between the two is that the pre-amended Illinois statute did not require the accident to result in serious bodily injury or death; it simply required that the accident resulted in a person needing medical attention. Because fewer people are likely to sustain serious bodily injury or death than injuries requiring medical attention, New Hampshire’s statute is more narrowly tailored.

However, the amended Illinois and Maine statutes share a common element that is missing from New Hampshire’s. The amended Illinois and Maine statutes require probable cause that a law has been violated for the chemical test results to be admissible in court, whereas the New Hampshire statute alone is the basis for the admissibility of the chemical test results in a trial. More specifically, in Illinois, the issuance of a Uniform Traffic Ticket results from probable cause that a law has been broken. In Maine, the necessary individualized probable cause that the driver was impaired while operating a motor vehicle is a violation of the law. In New Hampshire, being at fault for an accident is not a violation of the law, yet the statute itself mandates the admissibility of the chemical tests.

The effect of this significant distinction between these provisions is that, because New Hampshire’s statute mandates that the chemical test results be admissible in court, it does not meet the narrowly and specifically tailored prong of the Special Needs Exception test. However, if the New Hampshire statute excluded the provision mandating the admissibility of the chemical test results it would likely pass this prong.

The Non-Assistance in the Normal Needs of Law Enforcement Prong

The significance of this prong is that every statute that has failed the Special Needs Exception test has failed this prong. Only the Maine and the amended Illinois statute were able to overcome this prong.

The Maine Supreme Court noted that because the statute requires individualized probable cause that the driver involved in the accident was impaired before the chemical test results can be admissible in trial, the testing is not used to further the normal needs of law enforcement. Absent independent evidence triggering probable cause, from a source other than the chemical test results taken under this statute, the results cannot be used to prosecute the driver.43

The Illinois Supreme Court’s decision that the amended statute was not written to further the normal needs of law enforcement is twofold. First, the provision requiring the issuance of a Uniform Traffic Ticket for a non-equipment violation is an arrest, which inherently requires probable cause. Second, the court distinguished the amended statute from its predecessor, noting that the legislature, "by deleting any reference in the amended statute to the use of test results in criminal proceeding . . . has made clear that criminal prosecution is only incidental to the primary purpose of the statute [of preventing roadway fatalities by impaired drivers]."44 The Illinois Supreme Court found that if the language of a statute contains an express provision allowing the chemical test results to be used in court, then the statute cannot pass the Special Needs Exception test prong requiring that the underlying purpose of the statute not be to assist in law enforcement.

New Hampshire, Pennsylvania, and Mississippi’s statutes, as well as the pre-amended Illinois statute, contain provisions that specifically direct the use of the chemical tests in both criminal and civil proceedings. However, unlike the pre-amended Illinois and the Mississippi statute that allow the chemical tests be used in court, New Hampshire and Pennsylvania’s statutes mandate that the chemical tests shall be used in court.45 In this respect, New Hampshire and Pennsylvania’s statutes require the chemical tests be used to assist the normal needs of law enforcement. Therefore, New Hampshire, like the pre-amended Illinois, Pennsylvania and Mississippi statutes, would probably fail to meet this prong of the Special Needs Exception test.

However, the inquiry does not end here. Note that both the Maine and Illinois courts concluded that in order for the statutes to possess a purpose other than that of assisting normal law enforcement, an individualized probable cause element that a law has been violated, derived independently of the chemical test results, must exist. The language of Maine’s statute clearly states this requirement by mandating that individualized probable cause that the driver was impaired exist. Conversely, Illinois’ individualized probable cause element is derived from the amended statute’s provision allowing chemical testing only where there is an issuance of a Uniform Traffic Ticket, which is an arrest based on probable cause. This independently obtained probable cause that a law has been violated is not only the commonality between Maine and the amended Illinois’ statute, but moreover, it is what distinguishes Maine and Illinois from the remainder of the states. No other state statute, including New Hampshire, has an individualized probable cause element that a law has been violated

The New Hampshire statute and the pre-amended Illinois statute require probable cause that the driver is at fault for the accident. However, being at fault for an accident is not against the law. The Alaska, Illinois, Mississippi, and Pennsylvania Courts, when determining that these statutes failed this prong of the Special Needs Exception, stated that these statutes, absent any individualized probable cause, can only serve to assist in the normal needs of law enforcement.46 Consequently, New Hampshire’s statute, mandating the chemical test results to be admissible in a criminal proceeding without requiring individualized probable cause, can only be construed to have the underlying purpose of assisting the normal needs of law enforcement and would probably fail this prong of the Special Needs Exception test.

The Prong Requiring the Statute Not Be Unduly Invasive or Intrusive

The method implemented by Courts to determine whether the statute is unduly intrusive or invasive is to balance the individual’s rights affected against the state’s interest furthered by the statute. Courts have agreed that if the statute possesses the underlying purpose of assisting in normal law enforcement it can not "evince a special need that would justify departure from the probable cause requirements of the Fourth Amendment."47 As discussed under the previous prong, the Alaska, Mississippi, Pennsylvania, New Hampshire, and pre-amended Illinois statutes all possess the underlying purpose of assisting normal law enforcement and, therefore, failed that prong. Consequently, because courts reject the notion that assisting in normal law enforcement outweighs person’s privacy interests, all of these states fail this prong as well.

Conversely, the Maine and amended Illinois statutes were not found to have possessed the principle underlying purpose of assisting in normal law enforcement. Those statutes only possessed the purpose of furthering public safety by preventing roadway fatalities. The courts acknowledged that if exigency exists, the statutes are narrowly and specifically tailored, and the underlying purpose does not assist normal needs of law enforcement then preventing roadway fatalities by impaired drivers is a compelling governmental interest that outweighs individual’s expectation of privacy; thereby, meeting this prong.48 Considering that New Hampshire’s statute would probably fail the narrowly and specifically tailored prong, as well as the prong requiring the statute not assist in normal law enforcement, it would inevitably fail this prong.

The Final Prong – Established Procedures Must Further the Compelling Governmental Interest

Courts generally agree that if the underlying purpose of the statute is to assist in the normal needs of law enforcement, the statute will fail this prong as well. The common rationale among the courts is that if the established procedures assist in furthering the normal needs of law enforcement, the governmental interest is not a "special need" that would fall within the Special Needs Exception.49

New Hampshire’s statute, unlike the other statutes that failed the prong requiring that the compelling governmental interest be not to assist in normal law enforcement, contains a provision requiring the chemical test results be provided to "[a]ny highway safety agency for us in compiling statistics to evaluate the effectiveness of its program." Even though another specific purpose, compiling statistics to evaluate effectiveness, is stated the statute would probably still fail this prong of the Special Needs Exception test.50 Having stated a specific purpose does not cure the underlying primary purpose of assisting in normal needs of law enforcement. Therefore, New Hampshire’s statute would probably fail this prong.

The only two statutes that have passed the Special Needs Exception test, Maine and Illinois (amended), did not possess any specific language mandating the information obtained through the statute be provided to roadway safety agencies. Nor did the Maine or Illinois courts, in holding that these statutes fell within the Special Needs Exception, specifically address whether these statutes satisfied the Special Needs Exception test requiring that the statute establish procedures to assist in furthering public safety on the roadways. Because the other four prongs were satisfied and the statutes were upheld for falling under the Special Needs Exception, it is presumed that this prong was satisfied.

THE CONSTITUTIONALITY OF RSA 265:93 UNDER THE NEW HAMPSHIRE CONSTITUTION

To date, New Hampshire RSA 265:93 has not been challenged in the New Hampshire Supreme Court. However, in State v. Tibedo it was challenged in the superior court, which applied the Special Needs Exception and held that RSA 265:93 to be unconstitutional under the New Hampshire Constitution.51 The superior court did not discuss the constitutionality of RSA 265:93 under the Federal Constitution, as the New Hampshire Supreme Court has long held that the New Hampshire Constitution mandates higher protections than that of its federal counterpart.52

In Tibedo, the defendant driver was involved in a car accident that resulted in serious bodily injury to the passenger of the vehicle. The State withdrew the defendant’s blood in accordance with RSA 265:93. The defendant moved for the exclusion of the blood test results, arguing that RSA 265:93 is unconstitutional on its face because it allows the seizure and testing of a driver’s blood without requiring the police to have probable cause to believe the driver was intoxicated. The State countered, arguing that RSA 265:93 falls within the Special Needs Exception and, therefore, is constitutional.53

The superior court acknowledged that the New Hampshire Supreme Court has held that a warrantless search not based on probable cause can be permissible "when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable", pursuant to the Special Needs Exception.54 However, because the state supreme court has not yet decided the constitutionality of RSA 265:93 under the Special Needs Exception, the superior court had to look to other jurisdictions to decide this issue.

The State urged the superior court to follow the holdings of the courts in Illinois and Maine, which found that their statutes, similar to New Hampshire RSA 265:93, did fall under the Special Needs Exception. However, the Superior Court declined to do so, distinguishing New Hampshire RSA 265:93 from those statutes. Specifically, the superior court noted that the Maine statute did not allow the admissibility of the chemical test results without having individualized probable cause that the driver was intoxicated. The Illinois statute was upheld only after it was amended to require that the driver be arrested based on probable cause.55 In a footnote, the superior court also noted that RSA 265:93 was most similar to the pre-amended Illinois statute, wherein the probable cause element was related solely to a driver’s fault in the accident, and that Illinois found that statute unconstitutional.

The superior court, after reviewing the case law of other states, agreed with the holding in Commonwealth v. Kohl, wherein the Pennsylvania Supreme Court reasoned that "the Special Needs Exception was inapplicable in this context because the purpose underlying the statute was to enable the police to obtain evidence to be utilized in criminal proceedings".56 The superior court found that RSA 265:93, like the Pennsylvania statute, possesses the underlying purpose of assisting in the normal needs of law enforcement, thereby rendering the Special Needs Exception inapplicable and the statute unconstitutional.57

CONCLUSION

In analyzing New Hampshire RSA 265:93, compared to similar statutes that have been challenged in other state courts, it does not fall within the Special Needs Exception and, therefore, will likely be held unconstitutional as a violation of the Fourth Amendment and Part I, Article 19 of the New Hampshire Constitution. Only the Maine and amended Illinois statutes were able to meet the requirements of the federal Special Needs Exception test from Skinner. These statutes are distinguishable from New Hampshire’s because each mandates individualized probable cause that a law has been broken be independently obtained from a source other than the statute itself. Other statutes that have failed the Special Needs Exception test rely solely on the statute to enable law enforcement to order chemical tests on the driver that will then be admissible in a criminal, civil or administrative proceeding. RSA 265:93, like the other statutes found to be unconstitutional, assist in the normal needs of law enforcement without requiring individualized probable cause to believe a driver was impaired. In doing so, the New Hampshire statute has failed to create a "special need" that would justify a departure from the normal probable cause and warrant requirements of the Fourth Amendment of the Federal Constitution and part I, article 19 of the New Hampshire Constitution.

ENDNOTES

1. See U.S CONST. amend. IV; N.H. CONST. art. XIX.
2. N.H. REV. STAT. ANN. § 265:93 (1998) (emphasis added).
3. Skinner v. Labor Executives’ Ass’n, 489 U.S. 602, 612 (1989).
4. Id.
5. Id. at 623.
6. Id.
7. Id. at 619.
8. Id. at 623.
9. ME. REV. STAT. ANN. tit. 29, § 1312 (West 1992) (repealed 1995) (emphasis added).
10. Maine v. Roche, 681 A. 2d 472, 475 (Me. 1996).
11. ALASKA STAT. § 28.35.031 (Michie 1996) (emphasis added).
12. See, Blank v. Alaska, 3 P.3d. 359, 368 (Alaska 2000).
13. See id.
14. Id.
15. See id.
16. 75 PA. CONS. STAT. § 1547 (1991) (emphasis added).
17. Pennsylvania v. Kohl, 615 A.2d 308, 314 (Pa. 1992).
18. Id.
19. MISS. CODE ANN. § 63-11-8 (1996) (emphasis added).
20. Hurst v. Mississippi, 763 So.2d 850, 855 (Miss. 2000).
21. See, Id.
22. Id.
23. Id. at 854.
24. 625 ILL. COMP. STAT. 5/11-501.6 (West 1989) (emphasis added).
25. King v. Ryan, 607 N.E.2d 154, 160 (Ill. 1992).
26. Id. at 159.
27. Id. at 161.
28. Id.
29. Compare 625 ILL. COMP. STAT. 5/11-501.6 (West 1994), with 625 ILL. COMP. STAT. 5/11-501.6 (West 1989).
30. See Fink v. Ryan, 673 N.E.2d 281, 287 (Ill. 1997).
31. See id. at 286.
32. See id. at 285.
33. See id. at 287.
34. Id.
35. See id. at 286-287.
36. See id.
37. State v. O’Brien, 132 N.H. 587, 592 (1989).
38. State v. Leary, 133 N.H. 46 (1990).
39. See Roche, 681 A.2d at 475.
40. See id. at 474.
41. See Fink, 673 N.E.2d at 286.
42. See N.H. REV. STAT. ANN. § 265:93 (1998).
43. See Roche, 681 A.2d at 474.
44. Ryan, 673 N.E.2d at 287.
45. Compare N.H. REV. STAT. ANN. § 265:93 (1998), with 625 ILL. COMP. STAT. 5/11-501.6 (West 1989).
46. See generally Blank, 3 P.3d at 368; King, 607 N.E.2d at 160; Hurst, 763 So. 2d at 854; Kohl, 615 A.2d at 314.
47. Kohl, 615 A.2d at 314. See also Blank, 3 P.3d at 368; King, 607 N.E.2d at 160; Hurst , 763 So. 2d at 854 (citing Kohl, 615 A.2d at 314).
48. See generally Fink, 673 N.E.2d at 286-287; Roche, 681 A.2d at 474-475.
49. See generally Blank, 3 P.3d at 368; King, 607 N.E.2d at 160; Hurst, 763 So. 2d at 855; Kohl, 615 A.2d at 314.
50. N.H. REV. STAT. ANN. § 265:93 (1998).
51. State v. Tibedo, Docket No. 98-S-0581 (Strafford County Superior Court 1999).
52. See State v. Ball, 124 N.H. 226 (1983).
53. See Tibedo, Docket No. 98-S-0581.
54. Id. (citing State v. Zeta Chi Fraternity, 142 N.H. 16, 28 (1997)).
55. See Tibedo, Docket No. 98-S-0581.
56. Id. (citing Kohl, 615 A.2d at 308).
57. See Tibedo, Docket No. 98-S-0581.

 

The Author

Nicole Fortune, Class of 2002, Franklin Pierce Law Center, Concord, New Hampshire.

The Author

Sherri Gallant, Class of 2002, Franklin Pierce Law Center, Concord, New Hampshire.

 

 

Click for directions to Bar events.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer