Criminal Law

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

No. 2017-0693
May 10, 2019


  • Whether the trial court erred in concluding that RSA 265-A:8 requires only that the Administrative License Suspension warnings be reasonably conveyed by reasonable methods in order to satisfy the statute and be admissible at trial, rather than that the warnings be subjectively understood by the individual driver

This appeal followed a bench trial on stipulated facts. The defendant was convicted of aggravated driving while intoxicated. Prior to trial, the defendant moved to exclude admission of the Administrative License Suspension (ALS) form and corresponding breathalyzer test results from evidence. The defendant argued that similar to Miranda warnings, a person must knowingly, voluntarily, and intelligently consent to testing in order for the results to be admissible in a trial. He argued that because of a language barrier he did not consent. The defendant testified that he signed the form because where he is from, in the Congo, people are required to do what police officers tell them to do. The trial court applied a standard that the police officer must reasonably convey the warnings in a reasonable manner. After conviction, the defendant appealed.

The Court noted that to resolve this issue on appeal, it was necessary to determine the proper interpretation of RSA 265-A:8, which constitutes a de novo review. The Court noted that under the Implied Consent Law, a motor vehicle operator, shall be deemed to have given consent to the tests it describes when arrested for any offense arising out of facts alleged to have been committed while the person was driving a vehicle while under the influence of intoxicating liquor or controlled drugs, provided that the tests are administered at the direction of a law enforcement officer having reasonable grounds to believe the person has been driving while under the influence. Further, it was noted that the very act of driving on New Hampshire’s roads implies consent to take the test.

Additionally, they noted that nothing in the record suggested that the officer acted unreasonably in the circumstances. Specifically, there was evidence that the defendant (1) knew the officer from prior encounters; (2) had spoken to the officer in English in these encounters; (3) told the officer twice at the police station that he spoke English; and (4) affirmatively indicated to the officer that he understood the statements on the form.


Christopher Johnson, chief appellate defender, Concord, for the defendant. Gordon MacDonald, attorney general (Sean Locke, assistant attorney general), for the State.