State v. Ducharme

• Decision Date: 12 May 2015
• Docket Number: No. 2014–025,2014–025
• Citation: 167 N.H. 606,116 A.3d 1281
• Parties: The STATE of New Hampshire v. Alex DUCHARME
• Court: New Hampshire Supreme Court

167 N.H. 606

116 A.3d 1281

The STATE of New Hampshire

v.Alex DUCHARME

No. 2014–025

Supreme Court of New Hampshire.

Argued: February 19, 2015

Opinion Issued: May 12, 2015

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Law Offices of Robert J. Moses, of Amherst (Robert J. Moses on the brief and orally), for the defendant.

CONBOY, J.

The defendant, Alex Ducharme, appeals his conviction, following a bench trial, for driving under the influence of intoxicating liquor (DUI). See RSA 265–A:2 (Supp.2012) (amended 2012). He argues that the Circuit Court (Stephen, J.) erred when it: (1) ruled that the police had probable cause to arrest him for DUI; (2) concluded that a valid arrest for DUI had occurred and, therefore, that the implied consent statute applied; (3) admitted evidence obtained after he had invoked his Miranda rights and failed to consider the "confusion doctrine"; and (4) found the evidence sufficient to convict him of DUI. We affirm.

The testimony at trial established the following sequence of events. On March 5, 2011, the bouncer at Rednecks Bar and Grill in Antrim was called outside at around midnight to deal with an altercation that had originated in the bar and then "spilled ... into the parking lot." The police were called and an officer from the Antrim Police Department was dispatched to the bar. When the officer arrived, he first met with the bouncer and then made contact with one of the people involved in the altercation.

While he was outside, the bouncer saw the defendant drive into the bar's parking lot and park. The defendant got out of the vehicle from the driver's side and then "got into an altercation with another" man. The bouncer told the defendant and the other man several times to "back down." The bouncer testified that he could smell alcohol on the defendant. When "neither party would back down," the bouncer went to the officer for assistance. The officer approached the men, and then, to separate him from the situation, escorted the defendant back to his cruiser.

Once they were at the cruiser, the officer noticed that the defendant's "eyes were bloodshot and red." He also noticed "a distinctive odor of alcohol coming from [the defendant's] breath," and that the defendant "was having trouble with his balance." While the officer was talking with the defendant, another fight broke out in the parking lot. The officer handcuffed the defendant and placed him in the back of the cruiser so that the officer could "figure out exactly what was going on." The officer left the defendant in the cruiser and went to separate the two individuals involved in the latest fight. When he returned to his cruiser, he arrested the defendant for simple assault, after which he "detected a distinct odor of alcohol" in the cruiser that had not been there before he placed the defendant in the cruiser. Before the officer transported the defendant to the Hillsborough police station, he spoke with the bouncer, who informed the officer that he had observed the defendant drive into the parking lot.

At the police station, the officer brought the defendant to the booking room and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant made clear that he understood his rights and that he did not wish to speak with the officer or answer questions without a lawyer present. The officer then read to the defendant the Administrative License Suspension (ALS) form. See RSA 265–A:4 (Supp.2012) (amended 2012). The first line of the ALS form states: "You have been arrested for an offense arising out of acts alleged to have been committed while you were driving under the influence of alcohol or drugs." The officer asked the defendant if he understood what had been read to him and the defendant said that he did not. The officer asked the defendant what he did not understand and the defendant simply repeated that he did not understand.

The officer then "explained everything to [the defendant] again." He told the defendant "that [he] had been called ... to Rednecks Bar & Grill for a past-tense assault" and that "[w]hile taking that report [he] had witnessed [the defendant] assault another male." He explained that he had "witness statements stating that [the defendant] drove away from Rednecks and then drove back, and that's where we were at ... that moment." The officer testified that the purpose of this explanation was to tell the defendant "why I was reading the ALS form, why he was under arrest ... [f]or driving while intoxicated."

The officer reread the first line to the defendant and asked him again if he understood. The defendant stated that he did, after which the officer read the remainder of the ALS form to the defendant line by line, asking him after reading each line whether he understood. Several times the defendant indicated that he did not understand. The officer "explained everything to him" and the defendant then initialed next to each line indicating that he understood. The officer testified that the defendant first refused to sign the ALS form granting consent to the requested testing. The officer explained that the defendant was "[h]esitating, he wasn't sure what to do, how to proceed." He stated that he told the defendant that it was up to him to make the decision as to whether to submit to the requested testing and that he gave the defendant time to think about it. Thereafter, the defendant signed the form and "agreed to the requested testing." During this process, the defendant "stated to [the officer] that he was drunk."

The officer then administered the horizontal gaze nystagmus (HGN), the walk-and-turn, the one leg stand, and the Romberg balance field sobriety tests. He determined that the defendant failed the HGN and the walk-and-turn tests. The defendant also took a breath test, and the results indicated that he had a blood alcohol level of 0.17.

At trial, the defendant objected to the admission of the ALS form and the results of the field sobriety tests and the breath test. He claimed that he had been arrested only for simple assault and, therefore, that the implied consent statute did not apply to him because he had not been arrested for an offense arising out of acts committed while he was driving under the influence of intoxicating liquor or controlled drugs. The trial court overruled the defendant's objection.

Subsequently, the defendant moved for reconsideration, maintaining that, because the implied consent statute did not apply to him, it was improper for the officer to use the ALS form and, as a result, the form and any evidence derived therefrom should be suppressed. Alternatively, the defendant contended that the officer did not have probable cause to arrest him for DUI. The State disagreed, arguing that the defendant was effectively arrested for DUI when the officer read him the first line of the ALS form, and that probable cause to do so existed at that time.

The trial court agreed with the State and ruled that the defendant was arrested for DUI when the officer read him the first line of the ALS form. The court further found that there was probable cause for the defendant's arrest because the officer "had observed indicia of impairment at the scene, including an odor of alcohol, unsteadiness on feet, and bloodshot eyes. Further, a report from the bouncer was received that the Defendant drove to the scene...." Thus, the court concluded that, "[u]nder this totality of the circumstances, there was sufficient probable cause to allow the officer to make an arrest for" DUI.

The defendant again moved for reconsideration, reiterating his arguments that he was improperly arrested for driving under the influence. He further argued that the officer's administration of Miranda followed by the defendant's invocation of the right to remain silent "required that the officer clarify and explain to the Defendant the distinction between his right to remain silent as to an assault case versus the absence of that right for the narrow purpose of ALS." According to the defendant, because the officer did not clarify this distinction, the results of the field sobriety tests and the breath test should be suppressed under the "confusion doctrine." The State objected, asserting that New Hampshire has not adopted the "confusion doctrine," but that even if the court were to apply the doctrine, "[t]here is no objective evidence in this case that [the defendant] was confused about his right to remain silent or to counsel." The trial court denied the defendant's motion and found him guilty of the DUI charge. This appeal followed.

I. Probable Cause and DUI Arrest

On appeal, the defendant argues that the trial court erred by concluding that the officer had probable cause to arrest him for DUI. He also contends that there was no evidence that a valid arrest for DUI occurred, and that without such an arrest, the implied consent statute did not apply. He maintains, therefore, that the court should have excluded the ALS form as well as the results from the field sobriety test and the breath test.

We begin by addressing whether the officer had probable cause to arrest the defendant for DUI. An officer has probable cause to arrest when he or she has "knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense." State v. Maga, 166 N.H. 279, 286, 96 A.3d 934 (2014) (quotation omitted). "In determining whether the police had probable cause, we review reasonable probabilities and not the amount of evidence required to sustain a conviction or to make out a prima facie case." Id. (quotation omitted). "We are not bound by mathematical calculations in making this determination," but instead "must approach the issue with a concern for the factual and practical considerations of everyday life on which reasonable and prudent...