State v. Denney, 86-451

• Citation: 536 A.2d 1242,130 N.H. 217
• Decision Date: 23 December 1987
• Docket Number: No. 86-451,86-451
• Parties: The STATE of New Hampshire v. Howard W. DENNEY.
• Court: Supreme Court of New Hampshire

Page 1242

536 A.2d 1242

130 N.H. 217

The STATE of New Hampshire v. Howard W. DENNEY.

No. 86-451.

Supreme Court of New Hampshire.

Decided Dec. 23, 1987.

Opinion Dec. 31, 1987.

Stephen E. Merrill, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on the brief, and Steven L. Winer, Asst. Atty. Gen., orally), for the State.

Joanne Green, Asst. Appellate Defender, Concord, by brief and orally, for defendant.

JOHNSON, Justice.

The defendant appeals his conviction of driving while intoxicated, second offense, after a jury trial in the Superior Court (O'Neil, J.), and raises the following question for our review: whether part I, article 15 of the New Hampshire Constitution, guaranteeing due process, precludes the State from introducing into evidence a defendant's refusal to submit to a blood alcohol test (a test), where he had not been warned that his refusal could be used against him at trial. See RSA 265:88-a (Supp.1986). We hold that the admission of the defendant's refusal as evidence in this case deprived him of due process, and we reverse the defendant's conviction and remand for a new trial.

The relevant facts are as follows. Shortly after midnight on December 21, 1985, Officer Jeffrey Bonan of the Gilford Police Department was patrolling the area of Route 11A and Savage Road in Gilford. While traveling westbound on Route 11A, Officer Bonan saw in his rearview mirror a car heading eastbound, straddling the passing lane, and he turned around to follow it. The car made a left-hand turn, without a directional signal, and proceeded up the road about 150 feet. Officer Bonan pulled over behind the vehicle and turned on his blue lights. He approached the vehicle and asked the defendant operator for his license and registration.

After detecting a moderate odor of alcohol on the defendant, whose face was flushed, Officer Bonan asked him to step from the car. After the defendant failed various field sobriety tests, Officer Bonan placed him under arrest for driving while intoxicated.

En route to the police station, Miranda warnings were administered, and, as is required by statute (RSA 265:87), the defendant was advised of his rights under RSA 265:87 and the "consequences of his refusal to permit a test at the direction of the law enforcement officer." Officer Bonan did not, however, inform the defendant that if he refused to submit to a blood alcohol test the fact that he so refused could be used as evidence against him at trial. The defendant declined to take a blood alcohol test.

At trial, the defendant testified that the odor of alcohol was due to his consumption of four non-alcoholic "near beers," and that his inability to perform the field sobriety tests was the result of a "trick knee," a ruptured disc in his back, and arthritis in his back and his right knee. He testified that he elected not to submit to a blood alcohol test because of his concern that the non-alcoholic beer would produce a false positive result.

The jury found the defendant guilty. The court sentenced him to six months in the house of correction, with all but ten days suspended, imposed a $500 fine, and revoked his driver's license for three years. The defendant then brought this appeal.

We begin our analysis with a discussion of RSA 265:87 as it relates to this case. That statute provides:

"I. Before any [chemical test] is given, the law enforcement officer shall:

(a) Inform the arrested person of his right to have a similar test or tests made by a person of his own choosing;

(b) Afford him an opportunity to request such additional test; and

(c) Inform him of the consequences of his refusal to permit a test at the direction of the law enforcement officer."

(Emphasis added.) RSA 265:88-a (Supp.1986) provides:

"If a person refuses to submit to a [chemical test], such refusal may be admissible into evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by that person while driving or attempting to drive a motor vehicle while under the influence of intoxicating liquor or any controlled drug."

As a sanction against the State, when the officer fails to comply with RSA 265:87, I(c), RSA 265:87, II prohibits the State from introducing the results of the test into evidence at the driver's trial. No statute provides the driver with a remedy when the driver does not take the test, and his refusal is induced by the officer's failure to tell him that his refusal could be introduced as evidence. Therefore, any relief available to the defendant must come from the constitution.

Part I, article 15 of the New Hampshire Constitution provides, in pertinent part: "No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by ... the law of the land." It is well settled that "law of the land" in this article means due process of law. Petition of Harvey, 108 N.H. 196, 198, 230 A.2d 757, 758 (1967).

In State v. Cormier, 127 N.H. 253, 260, 499 A.2d 986, 991 (1985), this court held that the evidentiary use of a DWI defendant's refusal to provide a sample of breath or bodily substance for chemical testing does not violate the guarantee against compelled self-incrimination provided by part I, article 15 of the State Constitution. Thus, there remains only the question, presented here, whether the evidentiary use of such a refusal violates due process under the same constitutional provision. We need not discuss any federal due process issue, see South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), since this issue is not raised on appeal and is deemed waived.

The case before us concerns the admission into evidence at a criminal or civil trial of the driver's refusal to take the test. Without doubt, the admission of the refusal into evidence, pursuant to statute, is a direct consequence of refusing. Thus, in order to affirm the defendant's conviction, we would have to interpret due process as allowing admitting into evidence the driver's refusal to take the test when the officer has not complied with RSA 265:87, I(c). We interpret the statute to deny admission of the results of the test where the officer has failed to warn the defendant of the direct consequences of his failure to take the test. We have stated previously that, "[T]he ultimate standard for judging a due process claim ... is the notion of fundamental fairness." State v. Martin, 125 N.H. 672, 676, 484 A.2d 1176, 1179 (1984); see Appeal of Public Serv. Co. of N.H., 122 N.H. 1062, 1072, 454 A.2d 435, 441 (1982).

The implied consent law provides to an individual arrested for a violation or misdemeanor a statutory right to refuse to render a sample for a blood alcohol test. State v. Cormier, 127 N.H. 253, 257-58, 499 A.2d 986, 989 (1985). Such a refusal, however, cannot be accomplished with impunity. "[T]he legislature has attached two strings to a refusal." Id. at 258, 499 A.2d at 989. Cormier goes on to explain that the strings are, first, that RSA 265:92 (Supp.1986) provides that refusal to submit to a blood alcohol test results in a possible maximum one-year administrative revocation of the arrestee's driver's license, and, second, that RSA 265:88-a (Supp.1986) provides for the admission of a refusal as evidence in court.

RSA 265:87, I(c), however, requires the arresting officer to "[i]nform [the arrested person] of the consequences of his refusal to permit a test" before a test is given. (Emphasis added.) In the instant case, the defendant was apprised of only one of the two "strings" or direct consequences attached to a refusal. We read RSA 265:87, I(c) to require informing the arrestee, before the test is given, that a refusal to permit a test, pursuant to RSA 265:84, may be introduced as evidence in court. RSA 265:88-a (Supp.1986). An arrestee who refuses to take the test is not likely to be cognizant that in doing so he is producing "evidence" for the State to use against him at trial, whereas in submitting to a test the arrestee likely understands that he is providing such evidence to the State.

We note that the process due the defendant in this case is to be distinguished from the process due a defendant when collateral consequences, not direct consequences, are in issue. Such was the case in State v. Ramsden, 117 N.H. 772, 378 A.2d 1370 (1977), where we rejected an arrestee's claim that the police are obligated to inform a person how to get a license reinstated after it has been revoked for failing to take a breathalyzer test. Id. at 773, 378 A.2d at 1370. Likewise, in State v. Levey, 122 N.H. 375, 445 A.2d 1089 (1982), we rejected the defendant's argument that she must be informed that a DWI conviction could be used to impose a mandatory jail sentence for a subsequent offense. Id. at 377, 445 A.2d at 1090. More recently, in State v. Jenkins, 128 N.H. 672, 517 A.2d 1182 (1986), we held that due process does not require that defendants be informed they may face enhanced charges based upon blood alcohol test results. Id. at 675, 517 A.2d at 1184. We followed this same approach earlier this year in the case of Hess v. Turner, 129 N.H. 496, 529 A.2d 386 (1987). In Hess we held that the timing of a revocation is a consequence that need not be the subject of a warning. Id. at 494, 529 A.2d at 388. Neither due process nor any statutory provision requires that an arrested person be advised of all possible consequences. Id. Rather, if the legislature wanted an arrested person to be so advised, it would so legislate. State v. Ramsden supra.

Collateral consequences arise during the sentencing stage of the criminal process, where due process requirements are less stringent. State v. Breest, 116 N.H. 734, 755, 367 A.2d 1320, 1336 (1976). "The judge can 'exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of...