Saviano v. Dir., N.H. Div. of Motor Vehicles
| Decision Date | 26 August 2004 |
| Docket Number | No. 2003–0772.,2003–0772. |
| Court | New Hampshire Supreme Court |
| Parties | Michael SAVIANO v. DIRECTOR, N.H. DIVISION OF MOTOR VEHICLES. |
Law Office of Mark Stevens, of Salem (Mark Stevens on the brief and orally), for the plaintiff.
Kelly A. Ayotte, acting attorney general (Andrew B. Livernois, assistant attorney general, on the brief and orally), for the defendant.
The plaintiff, Michael Saviano, appeals the order of the Superior Court (T. Nadeau , J.) affirming the decision of the New Hampshire Department of Safety hearings officer upholding the suspension of his driver's license by the defendant, the director of the division of motor vehicles. We affirm.
The record supports the following facts. On June 17, 2003, Sergeant Fisher of the Pelham Police Department, while off-duty and driving his own private vehicle, observed the plaintiff's vehicle crossing the center and fog lines and exceeding the speed limit on Marsh Road in Pelham. He followed the plaintiff and radioed dispatch to request that a marked cruiser respond to a vehicle "operating erratically."
Sergeant McDowell and Officer Stahl responded in separate cruisers and pursued the plaintiff with their emergency lights and sirens activated. The plaintiff continued to drive erratically and failed to stop. Sergeant McDowell pulled beside him and edged the plaintiff's vehicle to the side of the road. As the plaintiff came to a stop, he "swerved to the side of the road and then swerved back on the road just missing [a] mailbox."
Sergeant McDowell and Officer Stahl ordered him out of his car and he refused. After the order was repeated numerous times, Officer Stahl opened the driver's door and ordered the plaintiff to step out. The plaintiff attempted to shut the door, but the officer successfully forced him out of the car. He then arrested him for disobeying a police officer because he failed to stop when signaled to do so. The plaintiff was placed in Officer Stahl's cruiser for transport to the police station. While en route, the officer detected a strong odor of alcohol emanating from the plaintiff.
At the police station, Officer Stahl read him a modified Administrative License Suspension (ALS) or Implied Consent form because he was under arrest for disobeying a police officer and the officers suspected that he had been driving while intoxicated. Section I, lines 1–6 of a standard ALS form read:
In Section I of the modified ALS form read to the plaintiff, lines 3 and 4 had a line through them and lines 1 and 2 had been altered to read:
The plaintiff signed the form in two places, indicating that he had been informed of his rights and that he agreed to the requested testing.
The plaintiff then took and failed three field sobriety tests. Officer Stahl then asked the plaintiff to take a preliminary breath test (PBT), advising him that "[it] was not his breath test, [and that] it was unofficial." He informed him that it was just to prove or disprove what he had already witnessed while conducting the field sobriety tests. The plaintiff agreed to take the test. The PBT revealed a Blood Alcohol Content of 0.141, confirming Officer Stahl's suspicion that the plaintiff was driving while under the influence of alcohol. See RSA 265:82 (Supp.2003).
Officer Stahl then charged the plaintiff with driving while under the influence of alcohol and read him a standard ALS form. The plaintiff refused to sign it or submit to the requested breath test. Accordingly, on June 23, 2003, the director of the division of motor vehicles suspended his driver's license pursuant to RSA 265:92 (Supp.2003).
The plaintiff requested an ALS hearing and, on August 5, 2003, the hearings officer upheld the suspension. On October 30, 2003, the superior court affirmed the decision of the hearings officer. This appeal followed.
The plaintiff argues that: (1) RSA 265:84 (Supp.2003), the implied consent statute, does not apply unless a driver is arrested for an offense alleging operation under the influence of liquor or a controlled drug or a combination of both; (2) the revocation of his driver's license violated his due process rights because the modified ALS form, read to him while he was in custody for disobeying a police officer, as opposed to driving under the influence, was inaccurate, misleading and prejudicial; (3) the use of the PBT result at the ALS hearing violated his due process rights; and (4) the administration of the PBT prejudiced his ability to make an informed decision whether to submit to the second requested breath test.
In an appeal to the superior court from an ALS hearing, the plaintiff has the burden to show that the order upholding the suspension was clearly unreasonable or unlawful, and all findings of fact on questions properly before the hearings officer are deemed to be prima facie lawful and reasonable. RSA 263:75, II (Supp.2003); Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 503, 823 A.2d 752 (2003). We defer to the trial court's factual findings, provided there is evidence in the record to support them. Jacobs, 149 N.H. at 503, 823 A.2d 752. However, we review the trial court's application of the law to the facts de novo . Id. at 504, 823 A.2d 752.
The plaintiff first argues that the implied consent statute does not apply unless a driver is arrested for an offense alleging operation under the influence of liquor or a controlled drug or a combination of both. He contends that because the implied consent statute had not been triggered at the time the officer read him the modified ALS form, his rights to due process under Part I, Article 15 of the State Constitution and the Fourteenth Amendment to the Federal Constitution were violated. We disagree.
In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Phetteplace v. Town of Lyme, 144 N.H. 621, 624, 744 A.2d 630 (2000). In interpreting a statute, we first look to the language of the statute itself and, if possible, construe that language according to its plain and ordinary meaning. Appeal of Northeast Rehab. Hosp., 149 N.H. 83, 85, 816 A.2d 970 (2003). Where the language is clear on its face, its meaning is not subject to modification. Marcotte v. Timberlane/Hampstead School Dist., 143 N.H. 331, 337, 733 A.2d 394 (1999). Unless we find that the statutory language is ambiguous, we need not look to legislative intent. Appeal of Town of Newington, 149 N.H. 347, 352, 821 A.2d 1100 (2003). We review the trial court's interpretation of a statute de novo . Monahan–Fortin Properties v. Town of Hudson, 148 N.H. 769, 771, 813 A.2d 523 (2002).
The implied consent statute provides that a motor vehicle operator "shall be deemed to have given consent" to the tests it describes when "arrested for any offense arising out of acts alleged to have been committed while the person was driving ... a vehicle while under the influence of intoxicating liquor or controlled drugs," provided the tests are "administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving ... while under the influence of intoxicating liquor or controlled drugs." The plain meaning of the statute indicates that it applies following an arrest for any offense , so long as it was allegedly committed while the person was driving under the influence of intoxicating liquor or controlled drugs.
In this case, the...
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