Harlan v. State, 6589
| Decision Date | 30 April 1973 |
| Docket Number | No. 6589,6589 |
| Citation | 308 A.2d 856,113 N.H. 194 |
| Parties | Shirley L. HARLAN v. STATE. |
| Court | New Hampshire Supreme Court |
Emile R. Bussiere and Kenneth R. McHugh, Manchester, for plaintiff.
Warren B. Rudman, Atty. Gen., and John C. Boeckeler, for the State.
The question transferred for decision in this case is 'whether a law enforcement officer who has arrested the operator of a motor vehicle for driving while intoxicated and who has followed the procedures of RSA 262-A:69-c is required to give a chemical test to the operator when the operator at first refuses but changes his mind one hour after such refusal and then requests the test.'
On August 6, 1972, the plaintiff was arrested and charged with driving under the influence of intoxicating liquor. She was informed by the arresting officer that unless she submitted to a breathalyzer test she would lose her license for a period of ninety days pursuant to the implied consent statute, RSA 262-A:69 (Supp.1972). She initially refused to submit to the test because she wished first to consult with her attorney. Unable to reach her attorney, plaintiff called her husband who immediately came to the police station and suggested that she take the test. She informed the police officer of her decision to submit to the test but was informed that the test would not be administered because too much time had elapsed since her initial refusal. The time between her refusal and subsequent request to take the test was one hour.
The director of motor vehicles revoked plaintiff's license of ninety days (RSA 262-A:69-e (Supp.1972)), and the revocation was sustained after an administrative hearing. RSA 262-A:69-f (Supp.1972). Plaintiff petitioned the superior court to review the revocation order (RSA 262-A:69-g), and a hearing was held before the Court (Perkins, J.) on September 12, 1972. The superior court ordered that the revocation be rescinded and transferred the question to this court for review.
The implied consent statute provides that a person arrested for operating a motor vehicle while under the influence of liquor 'shall be deemed to have given consent to a chemical test or tests of any or all or any combination of the following: blood, urine, or breath . . ..' RSA 262-A:69-a (Supp.1972); see Hallet v. Johnson, 111 N.H. 152, 276 A.2d 926 (1971). 'If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test . . ., none shall be given, but the director of the division of motor vehicles . . . shall revoke his license to drive . . . for a period of ninety days . . .' RSA 262-A:69-e (Supp.1972) (emphasis added). RSA 262-A:69-c provides that the officer shall '(1) inform the arrested person of his right to have a similar test or tests made by a person of his own choosing, (2) afford him an opportunity to request such additional test, and (3) inform him of the consequences of his refusal t permit a test at the direction of the law enforcement officer.'
Plaintiff's primary contention is that the purpose of the implied consent statute is the securing of a reliable blood-alcohol test whenever possible, and that this purpose is best served by allowing a person initially refusing to submit to the test a reasonable time after the refusal to reconsider and to then demand that the test be administered. She urges that this period for reconsideration should extend for as long a time as the test results still will be valid, which may be as long as four hours after the arrest. State v. Gallant, 108 N.H. 72, 227 A.2d 597 (1967). The State has admitted that the test would have been valid had it been administered immediately after the plaintiff requested it. But the position of the State is that the statute contemplates that once the driver has indicated his refusal to submit to the test, 'none shall be given' regardless of how soon thereafter the driver changes his mind.
Other courts considering whether a person properly advised by the police may rescind an initial refusal to submit to an implied consent law blood-alcohol test and demand that the test then be administered have almost unanimously concluded that the test need not be administered once a substantial period has elapsed from the initial refusal. Zidell v. Bright, 264 Cal.App.2d 867, 71 Cal.Rptr. 111 (1968) (); Krueger v. Fulton, 169 N.W.2d 875 (Iowa 1969) (1 hour, 23 minutes); State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971) (1 1/4 hours); In re Brooks, 27 Ohio St.2d 66, 271 N.E.2d 810 (1971) (1/2 hour); Application of Kunneman, 501 P.2d 910 (Okl.App.1972) (); Sundstrom License, 47 Pa.D. & C.2d 1 (3 hours); see Mills v. Bridges, 93 Idaho 679, 471 P.2d 66 (1970) (under 1 hour); Dobbins v. Tofany, 38 A.D.2d 870, 328 N.Y.S.2d 1004 (Sup.Ct.1972) (within 2 hours); Donigan, Chemical Tests and the Law, 26-27 (Supp.1972). Those few cases holding that the driver was entitled to the test after initially refusing have been based upon the driver's reasonable misunderstanding of his rights and responsibilities under the law due to statements made by the police. E.g., Sweeney v. Tofany, 30 A.D.2d 934, 293 N.Y.S.2d 876 (Sup.Ct.1968) (1 hour); Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969) (20 minutes).
We think that our implied consent statute like most others contemplates that the test be administered without unreasonable delay. See State v. Gallant, 108 N.H. 72, 227 A.2d 597 (1967); Zidell v. Bright, supra. 'Clearly implied in the statute is the requirement that one of its described tests be submitted to and completed expeditiously; otherwise the purpose of the law would be frustrated.' Smith v. Cozens, 25 Cal.App.3d 300, 302, 101 Cal.Rptr. 787, 788 (1972). '(T)he testing officers should not be required 'to await the driver's...
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