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Bar News - January 7, 2005 NH Supreme Court 3JX Panel Orders 2003-0808 The court on November 9, 2004, issued the following order: The defendant, David N. Matthews, appeals his conviction for driving while intoxicated, subsequent offense. See RSA 265:82-b (Supp. 2003). He contends that the trial court erred in denying his motion to suppress. We affirm. The defendant first contends that his arrest violated his rights under the State and Federal Constitutions because the arresting officer lacked probable cause to believe he was impaired at the time he was operating his motor vehicle. "Probable cause to arrest exists when the arresting officer has knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense." State v. Jaroma, 137 N.H. 562, 567 (1993) (quotations omitted). When determining whether probable cause to arrest exists, the trial court reviews "reasonable probabilities and not the amount of evidence required to sustain a conviction or to make out a prima facie case." Id. (quotations omitted). In this case, Officer Meyer heard a crash and then observed two vehicles emerging from the area from which the sound had originated. Concerned that they had not exchanged the requisite post-accident information, he followed them and first stopped the defendant and instructed him to remain with his vehicle. He then proceeded to stop the second driver. The defendant failed to remain with his vehicle and joined Officer Meyer with the second driver. When Officer Collopy arrived to assist at the scene, he observed the defendant to be off balance, that he smelled of alcohol and that he repeatedly interrupted Officer Meyer’s questioning of the other driver. Officer Collopy then placed the defendant under arrest. Based upon the record, we conclude that Officer Collopy had probable cause to believe that the defendant was impaired at the time he operated his motor vehicle. See State v. Maya, 126 N.H. 590, 594 (1985) (Federal Constitution provides no greater protection than State Constitution on this issue). The defendant also argues that the arresting officer’s failure to comply with RSA 265:87, I-a ( 2004) barred admission of his post-arrest field sobriety tests. We disagree. RSA 265:87, I-a provides that before any post-arrest physical test is given, the law enforcement officer "shall inform the defendant of the consequences of the defendant’s refusal to comply with the law enforcement officer’s instructions for a post-arrest physical test." See also RSA 265:87, II (2004) (law enforcement’s failure to comply will result in inadmissibility of test in any court or administrative proceeding). In this case, the record reflects that, after the defendant was placed under arrest, he asked whether he could take field sobriety tests. The police officer responded, "If you’re willing to do them," and the defendant stated that he was. As the final arbiter of the legislature’s intent, we decline to construe a statute so as to reach an absurd result. See State v. Kidder,150 N.H. 600, 602 (2004) (goal of statutory interpretation is to apply statutes in light of legislature’s intent in enacting them and in light of policy sought to be advanced by entire statutory scheme). Because the defendant requested the tests, Officer Collopy was not obligated to advise him of the consequences had he refused to take them. Accordingly, we find no error in the trial court’s admission of the results. Affirmed. 2003-0839 The court on November 9, 2004, issued the following order: Following a trial on stipulated facts, the defendant, Joshua Manning, was convicted of burglary, see RSA 635:1 (1996), theft by unauthorized taking, see RSA 637:3 (1996), and being a felon in possession of a firearm, see RSA 159:3 (2002). On appeal, he contends that the trial court erred in denying his motion to suppress. We affirm. The defendant contends that the arresting officer lacked reasonable articulable suspicion specific to the defendant to stop his vehicle. See State v. Turmel, 150 N.H. 377, 380 (2003) (to undertake investigatory stop, police officer must have reasonable suspicion based upon specific articulable facts taken together with rational inferences therefrom that the particular person stopped has been, is, or is about to be engaged in criminal activity). "To determine the sufficiency of the officer’s suspicion, we must consider the facts he articulated in light of all the surrounding circumstances, keeping in mind that a trained officer may make inferences and draw conclusions from conduct which may seem unremarkable to an untrained observer." Id. In this case, the arresting officer testified that he received a call from dispatch at approximately 3:30 a.m. about a burglary in progress less than a mile from his location; he immediately responded to an area where he had regularly patrolled for the last several years; he encountered no traffic until he approached the cul-de-sac on which the burglary was reported where the defendant’s vehicle pulled in front of him; the vehicle was old and not typical of the cars in the exclusive neighborhood; because it contained two occupants and because he had not observed any other vehicles at that time of night, he did not believe it was a delivery vehicle; and the back of the vehicle was full of items. Based upon the record before us, we conclude that the arresting officer articulated sufficient facts of a particularized and objective nature from which he could have formed a reasonable suspicion that the defendant had committed the reported burglary. See id. (that observed activity may be consistent with both guilty and innocent behavior does not mean officer must rule out innocent explanations before proceeding). Because the Federal Constitution offers the defendant no greater protection than the State Constitution under these circumstances, we reach the same result under the Federal Constitution as we do under the State Constitution. Id. The defendant’s remaining argument was not raised in his notice of appeal and has therefore not been preserved for appellate review. State v. Blackmer, 149 N.H. 47, 49 (2003). Affirmed. 2003-0710 The court on November 10, 2004, issued the following order: Following a bench trial, the defendant, Peter Linley, was convicted of driving under the influence of intoxicating liquor. See RSA 265:82 (2004). On appeal, he contests the sufficiency of the evidence. We affirm. "The general rule in this jurisdiction is that a contemporaneous and specific objection is required to preserve an issue for appellate review." State v. Blackmer, 149 N.H. 47, 48 (2003) (quotations omitted). "This rule, which is based on common sense and judicial economy, recognizes that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court." Id. (quotations omitted). Having reviewed the record of the proceedings below, we conclude the issue of sufficiency has not been preserved. The only reference made by defense counsel to the evidence presented was during a sentencing discussion, after the court had found the defendant guilty. The statement that, "I don’t think there’s been . . . any evidence that Mr. Linley was impaired[; a]nd certainly, there is no indication that this is a problem of any sort that requires any kind of ongoing treatment . . ." failed to apprise the court that the defendant wished to contest the finding of guilt based on the sufficiency of the evidence. We note, however, that even if the issue were properly before us, we would affirm the decision of the trial court. See State v. Parmenter, 149 N.H. 40, 43 (2002) (to prevail on sufficiency of evidence challenge, defendant must demonstrate that no rational trier of fact evaluating all of the evidence and its reasonable inferences in light most favorable to State could conclude beyond reasonable doubt that he had committed charged crime). The State’s first witness testified that she thought she could smell an odor of alcohol on the defendant and that after she helped him out of the water, she continued to watch him and observed him staggering. When found by the arresting officer, the defendant was in his car, had bloodshot eyes, admitted drinking earlier in the day and had alcohol in a travel cup in his car which he dumped out when the officer asked to inspect it. He then failed two field sobriety tests. At the hospital, he declined to take a chemical test, refused to sign the ALS form and said several times to the arresting officer, "Please don’t ruin my life." Although the defendant attributed his impairment to hypothermia, the witnesses he presented were his uncle and a female friend; although healthcare professionals, they did not observe him on the day of his arrest. Even if the evidence he presented might have supported a conclusion that the defendant was not impaired by alcohol, it was the responsibility of the trial court to resolve conflicts in the evidence. See id. Affirmed. Orders issued by the 3JX panels of the New Hampshire Supreme Court are without precedential effect and may not be cited for any proposition of law or as an example of the proper resolution of any issue. |
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