State v. Lafountain, 5582

• Decision Date: 18 July 1967
• Docket Number: No. 5582,5582
• Citation: 231 A.2d 635,108 N.H. 219
• Parties: STATE v. William A. LAFOUNTAIN.
• Court: New Hampshire Supreme Court

Page 635

231 A.2d 635

108 N.H. 219

STATE v. William A. LAFOUNTAIN.

No. 5582.

Supreme Court of New Hampshire.

Argued June 6, 1967.

Decided July 18, 1967.

George S. Pappagianis, Atty. Gen., and Henry F. Spaloss, Asst. Atty. Gen., for the State.

Falardeau & Mahan, Richard W. Mahan, Tilton, for defendant.

KENISON, Chief Justice.

The defendant contends the blood test is inadmissible in evidence because only a duly licensed physician or a qualified medical laboratory technician can testify that the blood sample was taken and without this testimony the State's cases must be dismissed. 'The defendant does not contend that as a matter of fact the doctor contaminated the sample with some foreign substance' but contends that in the absence of the doctor's testimony, 'there is no basis for determining if the sample was obtained under sterile conditionsl.' As stated in State v. Reenstierna, 101 N.H. 286, 287, 140 A.2d 572, 574, the 'State has the burden of proving that the chemical test for intoxication was correctly administered in the particular case.'

It is not disputed that the law enforcement offaicers complied with RSA 242-A:69-c in informing and wxplaining to the defendant the consequences and alternatives of taking a blood test. The last sentence of RSA 262-A:69-i provides that all tests 'shall be conducted in the laboratory of the bureau of food and chemistry department of public health.' This requirement was complied with in this case. The first sentence of the same section (RSA 262-A:69-i) provides that 'Only a duly licensed physician or qualified medical laboratory techician * * * may withdraw blood for the purpose of a chemicial test * * *.' The stipulation in this case 'that Dr. Lawrence was a qualified physician and competent to take a blood sample' indicates compliance with this part of the quoted statute. The third sentence of this statute reads as follows: 'No chemical tests authorized by 69-a shall be considered as evidence in any proceeding before any administrative officer or court unless such test is performed in accordance with methods prescribed by the public health officer of this state.' For the most part the methods prescribed by the public health officer relate to the chemical test in the laboratory. But in any event, in the summary of the evidence before us there is no indication of a violation of the prescribed methods. The situation is unlike that in State v. Gallant, 108 N.H. 72, 227 A.2d 597, where no prescribed methods were in existence.

It is suggested that there was a possibility that alcohol may have been used to prepare the skin surface for a puncturing needle. This would affect the reliability of the test. Conceding this to be so for the purposes of argument that fact would go to the weight of the evidence and not to its admissibility. State v. Roberts, 102 N.H. 414, 158 A.2d 458; State v. Gallant, 108 N.H. 72, 227 A.2d 597; Chambers v. Harris Motors Inc., 104 N.H. 111, 179 A.2d 447. 'In this state evidence does not have to be infallible to be admissible. If it is of aid to a judge or jury, its deficiecies or weaknesses are a matter of defense which affect the weight of the evidence but does not determine its admissibility.' State v. Roberts, supra, 102 N.H. 416, 158 A.2d 460. While there is a conflict in the cases (see Erwin, Defence of Drunk Driving Cases, s. 15.06 (2d ed. 1966), a mojority have recognized that the use of antiseptics such as ether or alcohol, while not a recommended procedure, affects the weight and credibility of the test and not its admissibility. State v. Fox, 177 Neb. 238, 249, 128 N.W.2d 576; Crews v. Commonwealth, 205 Va. 547, 138 S.E.2d 265; State v. Schwade, 177 Neb. 844, 131 N.W.2d 421; State v. Erdman, 64 Wash.2d 286, 391 P.2d 518; People v. Modell, 143 Cal.App.2d 724, 300 P.2d 204; Richardson, Modern Scientific Evidence, s. 13.11 (1961). 'It is not the legislative intent that all possibility of inaccuracies or imperfection of the test should be excluded before being received in evidence.' State v. Fox, supra. See also, People v. Malone, 14 N.Y.2d 8, 10, 247 N.Y.S.2d 641, 197 N.E.2d 189, where the lower court was reversed in excluding the blood test because 'it may have contained part of an alcoholic antiseptic agent the doctor may have used.' (Emphasis in the original).

The factual situation in this case is similar to that described in State v. Fornier, 103 N.H. 152 154, 167 A.2d 56, 57: 'The defendant argues that neither the doctor nor the trooper testified as to any labeling or marking for identification of the tube, that neither tube nor container was introduced in evidence, and that neither the doctor nor the trooper identified the tube and container as being the same tube and container in which the defendant's blood was placed. The defendant further points out that there...