State v. Sage, 2016–0698

• Decision Date: 09 February 2018
• Docket Number: No. 2016–0698,2016–0698
• Citation: 180 A.3d 1098,170 N.H. 605
• Parties: The STATE of New Hampshire v. Meghan SAGE
• Court: New Hampshire Supreme Court

170 N.H. 605

180 A.3d 1098

The STATE of New Hampshire

v.Meghan SAGE

No. 2016–0698

Supreme Court of New Hampshire.

Argued: October 12, 2017

Opinion Issued: February 9, 2018

Gordon J. MacDonald, attorney general (Scott Chase, attorney, on the brief and orally), for the State.

Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally), for the defendant.

LYNN, J.

The defendant, Meghan Sage, appeals her conviction for driving under the influence (DUI), second offense, see RSA 265–A:2, I (2014); RSA 265–A:18, IV (2014), following a de novo jury trial in the Superior Court (Wageling, J.), see RSA 599:1 (Supp. 2016). On appeal, she argues that the trial court erred by: (1) denying her motion to suppress evidence derived from expansion of the underlying traffic stop; (2) declining to exclude breathalyzer test results, or alternatively dismiss her charge, for an alleged violation of her due process rights under Part I, Article 19 of the New Hampshire Constitution ; and (3) enhancing her sentence under RSA 265–A:18, IV based upon a 2008 conviction from Maine for operating under the influence (OUI), see Me. Rev. Stat. Ann. tit. 29–A, § 2411 (Supp. 2007). We affirm.

I

The following facts are taken from the trial court's orders in this case. At approximately 5:00 a.m. on April 19, 2014, Trooper Ronchi of the New Hampshire State Police observed a vehicle traveling at 88 miles per hour in a 65 mile-per-hour zone on Interstate 95. See RSA 265:60, II (2014). After giving pursuit, Ronchi caught up to the vehicle and observed that it had not slowed, but was now traveling at 91 miles per hour. Ronchi activated his emergency lights and the vehicle promptly pulled over.

Ronchi approached the vehicle and made contact with its operator and sole occupant, a female later identified as the defendant. While he spoke to the defendant, Ronchi detected the odor of alcohol emanating from her vehicle and observed that she had red, watery eyes. Ronchi requested the defendant's license and registration, which she produced without difficulty, and then inquired into her travels. Initially, the defendant explained that she was on her way from work to her boyfriend's house in Connecticut. As the two continued to converse, however, the defendant altered her story, contending that she was on her way from home, not work.

Concerned that she might be impaired based upon the foregoing observations, Ronchi asked the defendant how much alcohol she had consumed prior to operating her vehicle. The defendant replied "none." His concern remaining, Ronchi asked the defendant if she would be willing to perform field sobriety tests. The defendant agreed to do so and subsequently failed each test—horizontal gaze nystagmus

, walk-and-turn, one-leg stand—Ronchi administered. Ronchi thereafter placed the defendant under arrest for DUI and transported her to the Hampton police station for processing.

After arrival at the station and review of her rights under the Administrative License Suspension form, the defendant consented to a breath test. Testing of her breath samples revealed a blood alcohol level of 0.12. Upon hearing the results, the defendant requested a blood test at least three separate times. Ronchi denied the requests, explaining to the defendant each time that his investigation was complete and he had no need to conduct further testing. Ronchi in turn provided the defendant with capture tubes containing her breath samples. See RSA 265–A:7 (2014) (amended 2016).

A bail commissioner subsequently arrived and released the defendant on $2,500 personal recognizance bail. The defendant was then offered several opportunities to use a telephone. When she was unsuccessful in arranging for someone to pick her up at the station, Ronchi placed the defendant in protective custody due to her intoxication level and transported her to the Rockingham County House of Corrections. After being held in protective custody for 8 hours, during which she made additional telephone calls to family members to no avail, the defendant was released from the house of corrections. She did not seek to have an independent blood test performed at any point thereafter.

Following a bench trial, the circuit court found the defendant guilty of DUI. See RSA 265–A:2, I. The defendant then appealed to the superior court for a de novo jury trial. See RSA 599:1. Prior to trial, the defendant moved to suppress evidence obtained during the traffic stop, arguing that Ronchi unlawfully expanded the scope of the stop when he asked her to perform field sobriety tests. The defendant further moved to exclude the results of her breath test, or to dismiss the charge, arguing that Ronchi violated her due process rights by denying her the opportunity to obtain an independent blood test. See RSA 265–A:7 (2014) (amended 2016). The defendant also challenged the State's intent to use her prior OUI conviction from Maine for sentence enhancement purposes, see RSA 265–A:2, I, :18, IV, asserting that Maine's OUI offense was not "reasonably equivalent" to New Hampshire's DUI offense under the elements-based approach to the determination established by this court in State v. Hull, 149 N.H. 706, 710, 827 A.2d 1001 (2003).

Following an evidentiary hearing, the trial court denied the defendant's suppression motion in its entirety. With regard to the stop, the trial court found that Ronchi's expansion of the stop was justified by a reasonable, articulable suspicion that the defendant was driving under the influence. As to testing, the trial court found that the police afforded the defendant the opportunity to obtain an independent test by providing her access to a telephone, after which she made an inadequate effort to arrange for one. Accordingly, the trial court concluded that the defendant had failed to demonstrate a violation of her due process rights.

The trial court also rejected the defendant's challenge to the use of her Maine OUI conviction. Although acknowledging that the elements of the two offenses differ, the trial court determined that, pursuant to Hull, it could also consider the facts underlying the defendant's Maine conviction in determining whether it was reasonably equivalent to a conviction for New Hampshire's DUI offense. After review of the factual allegations in the underlying police records, the trial court found that the defendant's conduct leading to her conviction for Maine's OUI offense would have also sustained a conviction for New Hampshire's DUI offense. Thus, the trial court concluded that the Maine OUI conviction was a "reasonably equivalent offense" for sentence enhancement purposes under RSA 265–A:18, IV. A jury later found the defendant guilty of DUI and the trial court sentenced her as a subsequent offender in accordance with its finding. This appeal followed.

II

The defendant first contends that, after stopping her for speeding, Ronchi unlawfully expanded the scope of the traffic stop when he asked her to step out of the vehicle to perform field sobriety tests. Accordingly, the defendant argues that the trial court erred in denying her motion to suppress all evidence derived from this violation of her rights under the Fourth and Fourteenth Amendments to the United States Constitution and Part I, Article 19 of the New Hampshire Constitution. Because the defendant has failed to demonstrate on appeal that she preserved her federal constitutional argument, see State v. DeCato, 156 N.H. 570, 573, 938 A.2d 898 (2007), we limit our review to her state constitutional argument and rely upon federal law merely to aid our analysis, see State v. Dewitt, 143 N.H. 24, 33, 719 A.2d 570 (1998) ; State v. Ball, 124 N.H. 226, 233, 471 A.2d 347 (1983). "When reviewing a trial court's order on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous, and we review legal conclusions de novo." State v. Blesdell–Moore, 166 N.H. 183, 187, 91 A.3d 619 (2014).

A traffic stop is a seizure for purposes of the State Constitution. Id. "The scope of such an investigative stop must be carefully tailored to its underlying justification, must be temporary, and last no longer than is necessary to effectuate the purpose of the stop." Id. (quotation and brackets omitted). "The scope of a stop may be expanded to investigate other suspected illegal activity only if the officer has a reasonable and articulable suspicion that other criminal activity is afoot." Id. (quotation omitted). "To determine the sufficiency of an officer's suspicion, we evaluate the articulable facts in light of all surrounding circumstances, keeping in mind that a trained officer may make inferences and draw conclusions from conduct that may seem unremarkable to an untrained observer." Id. at 188, 91 A.3d 619. Although we recognize that experienced officers' perceptions are entitled to deference, this deference should not be blind. Id. The "articulable facts must lead to something specific and not simply a general sense that this is probably a bad person who may have committed some kind of crime." Id. at 188–89, 91 A.3d 619 (quotation omitted).

In this case, we agree with the trial court that, based upon the following observations, Ronchi possessed a reasonable and articulable suspicion sufficient to justify expanding the scope of the stop to investigate whether the defendant was driving under the influence: (1) the defendant's inability to maintain a correct speed; (2) the odor of alcohol emanating from her vehicle; (3) her red and watery eyes; and (4) her inconsistent explanations regarding her travels. Consequently, Ronchi was permitted to ask the defendant a moderate number of questions to confirm or dispel this suspicion, see State v. Bell, 164 N.H. 452, 455, 58 A.3d 665 (2012), and to administer field sobriety tests, see State v. Steeves, 158 N.H. 672, 677, 972 A.2d 1033 (2009).

In arguing that the foregoing observations are insufficient to establish a reasonable...