State v. Davis

• Decision Date: 07 March 1967
• Citation: 226 A.2d 873,108 N.H. 45
• Parties: The STATE of New Hampshire v. Thomas W. DAVIS.
• Court: New Hampshire Supreme Court

Page 873

226 A.2d 873

108 N.H. 45

The STATE of New Hampshire v. Thomas W. DAVIS.

Supreme Court of New Hampshire.

Argued Nov. 1, 1966.

Reargued Feb. 7, 1967.

Decided March 7, 1967.

George S. Pappagianis, Atty. Gen. and Norman E. D'Amours, Asst. Atty. Gen., for the State.

Goodnow, Arwe & Ayer, Keene, Francis H. Ayer, Keene, for defendant.

DUNCAN, Justice.

The defendant was involved in a motor vehicle collision on April 24, 1965 on the public highway from Keene to Marlboro, 'both vehicles in the east bound lane.' The agreed facts are as follows:

'The Defendant was alone in his car with his feet on the driver's side and his head on the passenger side of the car. The accident occurred at about 7:00 P.M., and the police arrived to investigate shortly thereafter. Officer Rosin gave oxygen to the driver and was unable to talk with him because he had intermittent periods of unconsciousness. The officer observed the strong odor of alcohol on his breath. Officers Rosin and Metcalf helped the Defendant out of the motor vehicle, at which time he was taken to the hospital by ambulance. Officer Metcalf took pictures of the scene at that time. Upon arrival at the hospital, Dr. Ballou, the attending physician, gave the Defendant emergency treatment for lacerated face, shock, fractures of ankle, etc. In order to treat the partient, and in the event he should need blood, Dr. Ballou had Mr. Lawrence Derby, the laboratory technician employed by the Elliot Community Hospital, take blood samples. The initial blood samples taken were used to type and cross-match the Defendant's blood with other blood in the event he needed a transfusion. At the request of Dr. Ballou, Mr. Derby took a second sample of blood 15 minutes later and a third sample of blood about 9:30 a.m. At that time, the second sample of blood was placed in an ordinary test tube and had clotted, and the third sample of blood was placed in the sealed container normally used by the police for alcoholic testing. The second and third samples of blood taken eventually found their way to the police station, there being no evidence of how they were transported from the hospital to the police station, and from the police station they were delivered to Miss Guptill at the State Laboratory by Chief Bridgham on April 28, 1965. The State Laboratory testing indicated a .18 alcoholic content in the second sample of blood taken and a .16 alcoholic content in the third sample of blood taken.

'On the day following the taking of blood samples, Officer Rosin talked with the Defendant at the hospital, at which time the Defendant told him that he had had two drinks of liquor prior to the accident and had fallen asleep. He also told the officer that he was alone in the car with his dog. The State introduced one of the pictures taken by Officer Metcalf showing the Davis car after the accident in the left hand lane of the highway.'

The objections and motions, all of which were denied subject to the defendant's exceptions, were as follows:

'1. The Defendant objected to any testimony by Dr. Ballou on the basis that he was serving in a dual capacity, as attending physician and for the police department in taking the second and third samples of blood.

'2. That the testimony of Dr. Ballou was improper because of a physician-patient privilege.

'3. That the testimony of Dr. Ballou and Mr. Derby be stricken because there was no showing by the State of consent by the Defendant to the taking of his blood.

'4. That the testimony of Officer Rosin be stricken with respect to conversation to the Defendant the following day because the Defendant had not been warned prior to the conversation of his legal right to remain silent, and that he might have legal counsel.

'5. That there was no expert testimony that the Defendant was under the influence of intoxicating liquor.

'6. That there was no evidence that the Defendant was the operator of the automobile.'

The principal issues presented relate to the defendant's motion to strike the testimony of the attending physician and the hospital technician, upon the ground there was no showing that the defendant consented to the taking of his blood, and to the motion to strike the testimony of the police officer concerning his conversation with the defendant on April 25, 1965, on the ground that the defendant was not first warned of his constitutional right to remain silent, or advised of his right to legal counsel.

Although the agreed statement does not indicate the specific testimony of the physician and the technician to which objection was made, it may be assumed that it served at the least to identify the samples of defendant's blood which were analyzed and found to have an alcoholic content sufficient under the statute to constitute prima facie evidence that he was under the influence of intoxicating liquor. RSA 262-A:63.

The gist of the defendant's objection is that the taking of his blood without his consent was an unlawful search and seizure, in violation of his constitutional rights. At the outset we may take note that State v. Sturtevant, 96 N.H. 99, 70 A.2d 909, is not now controlling, in view of the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, overruling Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, and holding that the Fourth Amendment, applied to the states through the Due Process Clause, requires the exclusion of unconstitutionally seized evidence. State v. Coolidge, 106 N.H. 186, 190-191, 208 A.2d 322. We note also that we are not here concerned with the so-called 'implied consent' law which provides for blood tests at the direction of an officer 'having reasonable grounds to believe the person to have been driving' but became effective after the date of the offense charged here, and therefore is not controlled by this decision. RSA 262-A:69-a; Laws 1965, 238:1. See State v. Findlay (Iowa) 145 N.W.2d 650; People v. Lane, 240 Cal.App.2d 634, 49 Cal.Rptr. 712.

The decision of Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, relied upon by the State, would furnish a conclusive answer to the defendant's contention, so far as it is grounded upon the Federal Constitution, but for one circumstance which we regard as decisive. It does not appear that the defendant was under arrest when the blood was taken. The Schmerber case stemmed from a conviction of the offense of driving an automobile mobile while under the influence of intoxicating liquor, under California law a misdemeanor as is the offense with which the defendant is charged under our statute. Schmerber objected to receipt in evidence of an analysis of a blood sample taken by a physician in a hospital despite his refusal to consent. In concluding that this was not a violation of Schmerber's constitutional rights, the Court relied upon the fact that the taking of blood accompanied his arrest within two hours of the accident in which he had been involved, under circumstances reasonably warranting a belief that delay for the purpose of seeking a search warrant would threathen destruction of the evidence. Id., 770, 86 S.Ct. 1826. Taking of the sample was considered to be 'an appropriate incident to (his) arrest.' Id., 771, 86 S.Ct. 1836.

In the case before us however, the agreed facts fail to show that the defendant was under arrest when the blood was taken, or that his arrest was in any sense contemporaneous therewith. See Cannon v. State, 235 Md. 133, 137, 200 A.2d 919; Annot. 89 A.L.R.2d 715, 798. The record shows that the complaint was sworn to under date of June 1, 1965, and the...