State v. Doyle, 7784

• Decision Date: 17 October 1977
• Docket Number: No. 7784,7784
• Citation: 117 N.H. 789,378 A.2d 1379
• Parties: STATE of New Hampshire v. Lawrence DOYLE.
• Court: New Hampshire Supreme Court

Page 1379

378 A.2d 1379

117 N.H. 789

STATE of New Hampshire v. Lawrence DOYLE.

No. 7784.

Supreme Court of New Hampshire.

Oct. 17, 1977.

David H. Souter, Atty. Gen., and Peter W. Heed, Atty., Concord, for the state.

Fisher, Parsons, Moran & Temple, Dover (Edward T. Clancy, Dover, orally), for defendant.

PER CURIAM.

Two questions of law in a misdemeanor case have been transferred by the district court in advance of a trial on the merits. The impact on this court's caseload and workload resulting from the increasing prevalence of such transfers by district and municipal courts has induced this court to declare through the instant case the standards for such transfers to this court.

On December 11, 1976, the defendant was involved in an accident, taken to a hospital and treated. A blood sample was obtained. Defendant was then taken to a police station, arrested, charged with a second offense DWI, and released on bail. A complaint was not issued until January 6, 1977, and the next day a hearing was held on defendant's motion to produce "pursuant to RSA 262-A:69-b" a quantity of the blood sample taken in December. The motion was granted but counsel failed to pursue the matter by going to Concord to obtain the sample as provided by the standard policy of the State Police Laboratory. The sample was later destroyed, in accordance with that policy, and a motion to suppress and a motion to dismiss were then filed. The former motion was transferred to this court without ruling, the latter was denied by Nadeau, J. No trial has ever been held.

This case was transferred in accordance with RSA 502-A:17-a (Supp.1975) which provides that "(in) any criminal case . . . questions of law may be transferred to the supreme court in the same manner as from the superior court under RSA 491:17. . . ." (emphasis added). The latter provision permits transfer if the presiding justice "think(s) fit" such a determination by this court.

The superior court rules in RSA 491: App.R. 88 (Supp.1975), new Rule 96 in the 1977 version, provide that motions to suppress in criminal cases "shall be transferred on appeal after trial and not in advance of trial except in the discretion of the Court in exceptional circumstances." (Emphasis added.)

There is no single sentence in the rules of the district and municipal courts that has in its text the policy and implicit rationale of the superior court rule. When this court approved the district and municipal court rules in 1976, it was thought that certain of the rule provisions being approved, when linked, did provide that policy and rationale. Rule 2.8C (2) provides that exceptions to the court's denial of a motion to suppress in advance of trial shall be noted "and the trial shall proceed as scheduled." (Emphasis added.) Subsection (3) provides that the court "may, in its discretion," reserve and transfer exceptions in advance of trial. This court thought in 1976, and thinks now, that the policy and implicit rationale of the superior court rule, that had been approved by this court were being proposed by the district and municipal courts in these two rule provisions. See Rule 1.11 A; cf. State v. Hennessey, 110 N.H. 447, 270 A.2d 613 (1970) (vacated transfer of questions of law to supreme court in a case also appealed to superior court for trial de novo); State v. Deane, 101 N.H. 127, 130, 135 A.2d 897, 899 (1957) (misdemeanant has no right to have questions of law transferred to supreme court).

The caseload of this court doubled from 1970 to 1975 alone. 17 N.H.B.J. 172, at 180 (1976). A review of all of the "State v." cases in volume 116 of the New Hampshire Reports reveals that under the superior court rule, 12 cases were transferred in advance of...