Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2019-0603

September 29, 2021

Reversed and Remanded

 

  • Whether the performance of a BAC test on a blood sample, which was drawn by the State with the defendant’s valid consent, constitutes a search within the meaning of Part I, Article 19 of the New Hampshire Constitution or the Fourth Amendment to the United States Constitution.

 

Upon being arrested for driving under the influence of alcohol and after being informed of his administrative suspension rights, defendant consented to provide the State a blood sample to determine BAC. After providing the blood sample but before the sample was tested by the State Laboratory, defendant notified the State he withdrew his consent. The State Laboratory then tested the blood sample. Defendant moved to suppress the results of the BAC test on the grounds that it performed an unreasonable search when it tested his blood sample without his consent or a warrant. Trial court granted defendants motion, finding that defendant had a reasonable expectation of privacy, withdrew his consent, and no other exception to the warrant requirement applied. The State unsuccessfully sought reconsideration from the trial court, and this appeal followed.

Whereas the defendant conceded the State lawfully withdrew the blood sample, the court narrowly construed the issue as whether the BAC test was a search. The Court applied the reasoning in State v. Bazinet, 170 N.H. 680 (2018) and State v. Davis, 161 N.H. 292 (2010), as well as the intent behind the implied consent law, RSA 329:26, in holding that defendant did not have an expectation of privacy in his BAC that society is prepared to recognize as reasonable. The Court also declined to accept the defendant’s argument that a constitutionally protected interest existed in the portion of the blood sample that would be retained by the State if the defendant exercised his statutory right to perform private testing on a portion of the blood sample that was drawn with his consent.

 

Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general, Benjamin W. Maki, assistant attorney general, and Elizabeth C. Woodcock, assistant attorney general, on the brief, and Elizabeth C. Woodcock, assistant attorney general orally) for the State. Stephanie Hausman, deputy chief appellate defender, Concord, on the brief and orally for the defendant.