State v. Gallant

• Decision Date: 29 March 1967
• Citation: 227 A.2d 597,108 N.H. 72
• Parties: STATE v. Ludger GALLANT.
• Court: New Hampshire Supreme Court

Page 597

227 A.2d 597

108 N.H. 72

STATE v. Ludger GALLANT.

Supreme Court of New Hampshire.

Argued Jan. 4, 1967.

Decided March 29, 1967.

George S. Pappagianis, Atty. Gen., and John A. Durkin, Manchester, for the State.

Leonard, Leonard & Prolman, Nashua (David M. Prolman, Nashua, orally), for defendant.

KENISON, Chief Justice.

The defendant's first objection to the evidence of the results of the test of a sample of his blood is that it was taken approximately one and one-half hours after his arrest. 'It is only logical that the sooner after the event the specimen is taken for analysis, the more accurate will be the estimate of blood alcohol concentration at the time of the act in issue. But because it could not be or was not dene immediately after the event, does that mean the result of such a chemical test is inadmissible in subsequent litigation either civil or criminal? Our courts have answered in the negative, unless there are statutory time restrictions which otherwise control. (There are no statutory time restrictions in New Hampshire). 'In reported decisions in which the issue has been raised, the lapse between the occurrence of the event and the time of taking of a specimen for analysis has ranged from one hour to four hours.' Donigan, Chemical Tests and the Law 45 (The Traffic Institute-Northwestern University, 2d ed.1966). State v. Tripp, 158 Me. 161, 180 A.2d 601; State v. Cannon, 17 Utah 2d 105, 404 P.2d 971. Although the principal holding in State v. Sturtevant, 96 N.H. 99, 70 A.2d 909 is no longer controlling in view of the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 it may be noted that the chemical blood test taken in that case was 'about two hours after the collision.' State v. Sturtevant, supra, 96 N.H. 100, 70 A.2d 911. See State v. Davis, 108 N.H. --, 226 A.2d 873 (decided March 7, 1967). It was held in State v. Fornier, 103 N.H. 152, 155, 167 A.2d 56 that blood samples are not inadmissible as a matter of law on the sole ground that they were taken some point after arrest. See Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. In that case it was recognized that generally the delay works in favor of the accused, although there may be extraordinary circumstances where the alcoholic content in the defendant's blood would be lower at the time of arrest than when the blood sample was taken. This goes to the weight of the evidence and not to its admissibility. State v. Roberts, 102 N.H. 414, 158 A.2d 458. See Chalmers v. Harrison Motors, 104 N.H. 111, 179 A.2d 447.

The defendant's second objection to the admission of the evidence of the results of the blood test is on the ground that the analysis was not made in the laboratory until five days after the sample of blood was obtained. No cases have been called to our attention which support this contention. Although the transcript of the evidence in the district court is not before us, it appears from the reserved case that the defendant's witness testified that the five-day period 'would prevent an accurate result in that there would be a chemical reaction within the sample, during this period, which would make the test results higher or lower.' This was disputed by the State's witness who testified that the five-day period 'would not change the result or accuracy of the blood content finding.' We do not pass on the validity of these opposing opinions because this is a matter for determination by the district court on all the evidence in the case. Under the statute (RSA 262-A:63) the blood test is not conclusive and the statute provides that '(e)vidence that there was, at the time alleged, fifteen-hundredths percent, or more by weight of alcohol in his blood, is prima facie evidence that the defendant was under the influence of intoxicating liquor.' This same statute further specifically provides that other competent evidence may be introduced 'bearing upon the question whether or not the defendant was under the influence of intoxicating liquor.' RSA 262-A:63.

Under this statutory framework we cannot say as a matter of law that a laboratory analysis five days after the blood sample was obtained was inadmissible. See Erwin, Defense of Drunk Driving Cases, ch. 14 (2d ed. 1966). The long and short of the matter is that in this state chemical tests to determine intoxication are considered reliable. State v. Reenstierna, 101 N.H. 286, 140 A.2d 572. In specific cases such tests may be challenged for inaccuracy or other reasons which present questions of fact for the Trial Court. The following statement in State v. Roberts, 102 N.H. 414, 416, 158 A.2d 458 is pertinent: 'In this state evidence does not have to be infallible to be admissible. If it is of aid to a judge or jury, its deficiencies or weaknesses are a matter of defense which affect the weight of the evidence but does not determine its admissibility. Scientific tests for...