Depoutot v. Raffaelly
| Decision Date | 04 October 2005 |
| Docket Number | No. 05-1529.,05-1529. |
| Citation | 424 F.3d 112 |
| Parties | Robert DEPOUTOT, Plaintiff, Appellant, v. John RAFFAELLY, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Michael J. Sheehan, for appellant.
Charles P. Bauer, with whom John T. Alexander and Ransmeier & Spellman, PC, were on brief, for appellee.
Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SCHWARZER,* Senior District Judge.
This case involves a meandering motorist who claims that the arresting officer violated his constitutional right to substantive due process at the touch of a button (wrongfully terminating a breath alcohol test administered after the plaintiff's arrest for drunken driving). The district court determined that the facts, even when viewed in the light most hospitable to the plaintiff's theory of the case, did not state a substantive due process claim and that, in all events, the officer was entitled to qualified immunity. After careful consideration, we affirm the district court's order.
As the district court resolved this case at the summary judgment stage, we rehearse the facts in the light most agreeable to the nonmovant (here, the plaintiff), consistent with record support. Brady v. Dill, 187 F.3d 104, 106 n. 1 (1st Cir.1999). Because the constitutionality of the arresting officer's decision to terminate the plaintiff's breath test lies at the core of this controversy, we focus on the facts available to the officer at the time of the test.
During the early morning hours of November 18, 2001, defendant-appellee John Raffaelly, a member of the Northfield, New Hampshire police department, arrested plaintiff-appellant Robert DePoutot on suspicion of driving while intoxicated. Raffaelly transported the plaintiff to a police station in nearby Laconia for the purpose of administering a breath alcohol test. The plaintiff concedes that probable cause existed for the arrest and eschews any challenge to the officer's decision to conduct a further investigation.
The Laconia police department relies upon an "Intoxilyzer 5000" machine to measure blood alcohol content (BAC). The Intoxilyzer computes a subject's BAC on the basis of two breath samples. To generate a valid sample, the subject must exhale continuously into a tube connected to the Intoxilyzer for four seconds and provide the machine with approximately one liter of air. Each breath sample must be given within a separate two-and-one-half minute window; if the subject fails to provide a testable sample within either the first or second window, the machine automatically cancels the test.
Under New Hampshire law, the refusal of a person suspected of drunken driving to submit to a breath test results in an automatic license suspension, regardless of whether the person is ultimately convicted of violating any of the state's rules of the road. See N.H.Rev.Stat. Ann. § 265:92(I) (2004). Although the statute supplies no special definition of the term "refusal," the New Hampshire Supreme Court has explained that "[a] driver's entire conduct, not merely words expressing consent or refusal," informs the determination. Jordan v. State, 132 N.H. 34, 561 A.2d 1078, 1080 (1989). Because a driver "must comply with all the procedures necessary to produce accurate measurements of breath-alcohol levels," one who "expresses consent while intentionally preventing accurate testing" may be deemed to have refused to submit to the test within the meaning of the statute. Id.
The plaintiff had a prior conviction for driving while intoxicated and, accordingly, did not come to the breath test as a stranger. After re-familiarizing the plaintiff with the Intoxilyzer, Raffaelly informed him of his right, under state law, to obtain additional testing at his own expense. See N.H.Rev.Stat. Ann. § 265:87. Once Raffaelly had secured the necessary consent, see id. § 265:92, the breath test commenced.
During the first two-and-one-half minute window, the plaintiff experienced two false starts, exhaling a small amount of air into the tube but ultimately failing to generate a full sample. After the second failed attempt, Raffaelly re-instructed the plaintiff about the Intoxilyzer's proper operation and warned him that any subsequent failure to provide the required sample would be deemed a refusal to submit to the test. On his third try, the plaintiff provided a satisfactory sample and the Intoxilyzer rated his BAC at 0.04 percent. That was well below the level that, under New Hampshire law, comprised prima facie evidence of inebriation. See id. § 265:89 (). Consistent with his general practice, Raffaelly did not immediately disclose the results of this initial analysis to the plaintiff.
After processing this first sample, the Intoxilyzer automatically recalibrated and opened the second two-and-one-half minute window. Once again, the plaintiff failed to provide a testable sample on at least two attempts.1 Raffaelly repeated both his procedural instructions and his warning that a subsequent failure to generate a suitable sample would be construed as a refusal to submit to the test. When the plaintiff's further efforts proved unsuccessful, Raffaelly pressed the machine's "R" button — an action that served to record the plaintiff's refusal and terminated the test. At that point, the two-and-one-half minute window for receiving the second breath sample had not yet closed.
The plaintiff asserts that while striving to provide the required breath samples, he "cough[ed]," "gagg[ed]," and repeatedly complained to Raffaelly that he was having trouble breathing. He also complained that Raffaelly's conduct was "scaring" him. And, finally, he says that he requested that a blood test rather than a breath test be administered.2 He acknowledges, however, that he never informed Raffaelly of any medical condition that might be interfering with his ability properly to perform the breath test.
Raffaelly denies that there were any objective indications that the plaintiff was physically unable to complete the test. From his coign of vantage, the plaintiff appeared to be obstructing the test either by holding his breath or by placing his tongue over the opening in the tube.
After the machine had registered the refusal, Raffaelly released the plaintiff from custody. The plaintiff repaired to a local hospital and obtained a blood test. A retrograde analysis of that sample, which was extracted more than two hours after the aborted breath test, suggested that the plaintiff's BAC was approximately 0.03 percent at the time of the breath test.
Raffaelly went ahead with the driving while intoxicated charge. Even though that charge eventually was dropped, New Hampshire state authorities administratively suspended the plaintiff's license for two years for refusing to submit to a breath test. The length of the suspension was based, in part, on the plaintiff's prior conviction for driving while intoxicated. See id. § 265:92(I)(b)(1).
The plaintiff availed himself of the state's administrative appeal procedure. See id. § 265:91-d. At a hearing held on January 4, 2002, he presented medical testimony that he suffered from occupationally induced asthma and that, although this condition may not have manifested itself in external signs, it likely prevented him from producing the required breath samples. Despite this evidence, the hearing officer found that the plaintiff had willfully refused the breath test and upheld the license suspension.
The plaintiff sought judicial review of the hearing officer's decision in state superior court. In July of 2002, that court, leaning heavily on the medical testimony and the allocation of the burden of proof, found the evidence insufficient to uphold the finding that the plaintiff had willfully refused to submit to a breath test. Hence, the court reversed the hearing officer's decision and restored the plaintiff's driving privileges.
The plaintiff then filed suit against Raffaelly in the federal district court. Pertinently he invoked 42 U.S.C. § 1983 and asserted a substantive due process claim.3 The allegedly offending conduct was Raffaelly's premature termination of the breath test.
Following discovery, the district court granted Raffaelly's motion for summary judgment. The court held, first, that Raffaelly's conduct was not sufficiently conscience-shocking to constitute a violation of the substantive component of the Fourteenth Amendment's Due Process Clause. As a fallback, the court concluded that, in all events, Raffaelly would be entitled to the protection of qualified immunity. This timely appeal ensued.
Our analysis proceeds in two stages. First, we set out the summary judgment standard. Then, after mapping the landscape of substantive due process, we turn to the merits of the plaintiff's claim.
In adjudicating a motion for summary judgment, a district court construes the facts "in the light most amiable to the nonmovant[ ] and indulge[s] all reasonable inferences favorable to [him]." Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). The Civil Rules empower the court to render summary judgment only when this portrait of the case depicts "no genuine issue as to any material fact" and establishes "that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A factual issue is "genuine" if "it may reasonably be resolved in favor of either party" and, therefore, requires the finder of fact to make "a choice between the parties' differing versions of the truth at trial." Garside, 895 F.2d at 48 (citations and internal quotation marks omitted). Material facts are those that "possess the capacity to sway the outcome of the litigation under the applicable law." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (citation and internal quotation marks omitted).
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