State v. Rocheleau, 7791

• Decision Date: 17 October 1977
• Docket Number: No. 7791,7791
• Citation: 117 N.H. 792,378 A.2d 1381
• Parties: The STATE of New Hampshire v. Paul ROCHELEAU.
• Court: New Hampshire Supreme Court

Page 1381

378 A.2d 1381

117 N.H. 792

The STATE of New Hampshire v. Paul ROCHELEAU.

No. 7791.

Supreme Court of New Hampshire.

Oct. 17, 1977.

David H. Souter, Atty. Gen., and Richard B. McNamara, Concord, Atty., for the State.

William P. Shea, Sanbornville, and Lee W. Mattson, Center Harbor, for defendant.

KENISON, Chief Justice.

The defendant was convicted of driving while under the influence of intoxicating liquor in violation of RSA 262-A:62 (Supp.1975) in the Dover District Court. Defendant appealed his conviction to the Strafford County Superior Court. Prior to trial, the defendant moved to suppress the results of a blood test upon the ground that he had not been placed under arrest at the time the blood sample was taken. The Court (Mullavey, J.) denied defendant's motion after hearing and defendant seasonably excepted to the court's ruling. The defendant was found guilty by the court after a jury waived trial, and the issues raised by these exceptions were then reserved and transferred to this court. RSA 491:17.

The defendant while operating his motor vehicle was involved in a single car accident in Dover, New Hampshire on June 22, 1976, causing injuries to the defendant. An officer of the Dover Police Department arrived at the scene and rode with the defendant in the ambulance to the hospital. While in the emergency room, after considering the defendant's general appearance and noticing an odor of alcoholic beverages about him, the officer told the defendant that he was placing him under arrest and advised him of his rights under RSA 262-A:69-a (Supp.1975) (the implied consent law). He requested the defendant to submit to a blood test and the defendant consented. Shortly after the blood sample was taken the officer left the hospital, without taking any further action with respect to the defendant. The defendant was subsequently released from the hospital and returned home.

The following day the officer went to the defendant's home but learned that he had been readmitted to the hospital early that day, where he remained until July 14, 1976. The officer took no further action until August 13, 1976, when he served upon the defendant a summons to appear in court. The defendant was never arraigned and no bail proceedings took place pursuant to the arrest.

Defendant contends that his motion to suppress should have been granted because it is required that there be an arrest before a blood sample can be obtained pursuant to the implied consent statute, RSA 262-A:69-a (Supp.1975); State v. Scanlon, 110 N.H. 179, 263 A.2d 669 (1970), and that here an arrest never in fact occurred.

RSA 594:1 defines an arrest as "the taking of a person into custody in order that he may be forthcoming to answer for the commission of a crime." To constitute an arrest there must exist an intent on the part of the arresting officer to take the person into custody and a corresponding understanding by the person arrested that he is in custody. " State v. Wolfson, 116 N.H. 227, 229, 356 A.2d 692, 694 (1976); State v. Brodhead, 116 N.H. 39, 40, 351 A.2d 57, 58 (1976); E. Fisher, Laws of Arrest 43 (1967). No magic words or formal declaration of arrest is required. State v. Garceau, 108 N.H. 209, 211, 231 A.2d 625, 627 (1967). Nor is it necessary that the defendant subsequently remain in custody or that a criminal complaint be instituted against him to have had a valid arrest. RSA 594:18; State v. Hutton, 108 N.H. 279, 288, 235 A.2d 117, 123 (1967); O'Connor v. Bucklin, 59 N.H. 589, 591 (1879). Whether or not an arrest has in fact taken place depends upon the facts and circumstances of each case. State v. Brodhead, supra, 116 N.H. at 40, 35 A.2d at 58. The officer in this case asserted as much control over the defendant as the...