State v. Taylor, 88-184

• Decision Date: 13 November 1989
• Docket Number: No. 88-184,88-184
• Citation: 566 A.2d 172,132 N.H. 314
• Parties: The STATE of New Hampshire v. Daniel TAYLOR.
• Court: New Hampshire Supreme Court

Page 172

566 A.2d 172

132 N.H. 314

The STATE of New Hampshire v. Daniel TAYLOR.

No. 88-184.

Supreme Court of New Hampshire.

Nov. 13, 1989.

John P. Arnold, Atty. Gen. (John S. Davis, Asst. Atty. Gen., on brief and orally, and Mark E. Howard, on brief), for the State.

James E. Duggan, Chief Appellate Defender, Concord, on brief and orally, for defendant.

JOHNSON, Justice.

The defendant was convicted of driving while under the influence of intoxicating liquor, subsequent offense, after a two-day jury trial. RSA 265:82, I(a) (Supp.1988). On appeal he argues that the Trial Court's (Dickson, J.) instruction to the jury that his blood alcohol level of .13 percent was prima facie evidence that he was driving under the influence of intoxicating liquor was in error. The defendant contends that since his blood alcohol content was tested approximately one hour and fifteen minutes after he was arrested, the test results do not accurately reflect his blood alcohol content at the time he was operating his vehicle. We hold the instruction was proper and affirm.

Officer Bryan Neal of the Concord Police Department was on routine patrol on May 2, 1987, when, at approximately 12:25 a.m., he observed the defendant's small pickup truck traveling on North State Street at a fairly slow rate of speed for the time of day and the traffic conditions. After the vehicle passed the officer he noted through his rear view window that the vehicle was hugging the right side of the road as if it was beginning to pull over to the side of the road. Seeing this, the officer turned his vehicle around and approached the defendant's vehicle with the intent to offer assistance.

Since the defendant's vehicle came to a stop partially in the roadway, Officer Neal activated his blue lights as he stopped in order to protect the safety of the operator and himself. The defendant immediately exited his vehicle, approached the officer and spontaneously exclaimed, "I know I only had two beers, but I feel too drunk to drive and I won't drive anymore."

The officer asked the defendant his name and date of birth, but the officer noted that he appeared confused and dazed. He failed to give the officer his date of birth. The officer then conducted the standard field sobriety tests, which indicated sufficient impairment for the arrest of the defendant for DWI at 12:34 a.m. During the tests the officer also noted that the defendant's speech was slurred and that his eyes were glassy and red.

As the defendant was being transported in the police cruiser to the Concord police station, Officer Neal detected a strong odor of alcohol. Upon arrival at the station, the defendant was placed in a holding cell until a certified intoximeter operator could be called to administer the blood alcohol test. Officer Neal, based on the field sobriety tests and observations of the defendant, gave the opinion that the defendant "was unfit to drive the motor vehicle." Hence, on the testimony of the officer alone, a reasonable jury could have found the defendant guilty of DWI.

Officer Lionel Talbot, a certified intoximeter operator, then came to the station to conduct a test of the defendant's blood alcohol. He performed the test following the mandated twenty-minute waiting period during which the officer could observe the defendant. See N.H. Admin. Rules, He-P 2206.02. The police station was apparently busy on the evening in question. At 1:38 a.m. the test was conducted, and it indicated that the defendant's blood alcohol content was .13 percent.

The defendant was charged with driving "[w]hile ... under the influence of intoxicating liquor...." RSA 265:82, I(a) (Supp.1988). In order to convict a person under this provision, the State need not prove that the defendant's blood alcohol content was .10 percent or more at the time he was operating his vehicle, see RSA 265:82, I(b) (Supp.1988), but need only prove impairment to any degree. State v. Slater, 109 N.H. 279, 280, 249 A.2d 692, 694 (1969). A two-day jury trial was held. Following the close of the evidence and the arguments, the trial court gave the following charge to the jury:

"During the course of the trial, you heard evidence that a chemical test was conducted for the purpose of determining the alcoholic content of the defendant's blood at the time the test was performed. You have heard evidence that the test yielded a result of .13.... [E]vidence that there was ten one-hundredths percent or more by weight of alcohol in the defendant's blood is what we call prima facie evidence that the defendant was under the influence of intoxicating liquor. What does that mean? Prima facie evidence is, simply, evidence which, standing alone, is enough for you to find that the defendant was under the influence of alcohol. However, simply because the test result was over .10 does not require you to find that the defendant was under the influence of alcohol. Evidence that there was a certain percent by weight of alcohol in the defendant's blood is not conclusive, but should be considered by you along with other evidence in deciding whether or not the defendant was operating under the influence of intoxicating liquor."

An instruction relating to the prima facie evidentiary value of a test result is specifically provided for under RSA 265:89 (Supp.1988), which provides in part:

"Evidence. Upon complaint, information, indictment or trial of any person charged with the violation of RSA 265:82 or 82-a, the court may admit evidence of the amount of alcohol in the defendant's blood at the time alleged, as shown by a test of his breath, blood, or urine as provided in RSA 265:84. Evidence that there was, at the time alleged, 5/100 percent, or less, by weight of alcohol in his blood is prima facie evidence that the defendant was not under the influence of intoxicating liquor. Evidence that there was, at the time alleged, more than 5/100 percent and less than 10/100 percent by weight of alcohol in his blood is relevant evidence but is not to be given prima facie effect in indicating whether or not the defendant was under the influence of intoxicating liquor; but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. Evidence that there was, at the time alleged, 10/100 percent or more by weight of alcohol in his blood is prima facie evidence that the defendant was under the influence of intoxicating liquor."

The defendant objects to the trial court's instruction because, as the record demonstrates, the defendant's driving occurred approximately one hour and fifteen minutes before the test was administered, and hence the State failed to establish a temporal nexus between the alcohol in the defendant's blood at the time he was operating the vehicle and the defendant's level of blood alcohol at the time of the test. The defendant focuses his argument on the words in RSA 265:89 (Supp.1988), "at the time alleged," which he argues refer to the time of the offense, and on the evidence offered by Officer Talbot that the measure of blood alcohol increases, after consumption, for a period of approximately one hour to an hour and fifteen minutes. This increase of alcohol in the blood after consumption for a period of time, and then the decrease of alcohol in the blood thereafter, is known as the "blood alcohol curve." The defendant, in effect, contends that the State must prove the amount of alcohol in his blood when he was operating his vehicle in order for the trial court to give the instruction relative to prima facie evidence. We disagree.

RSA 265:89 (Supp.1988) provides that evidence of a .10 percent or greater blood alcohol content "at the time alleged" is prima facie evidence that the defendant was under the influence of alcohol. We agree with the defendant that the phrase "at the time alleged" refers to the time of the offense alleged in the complaint, which was the time the defendant was operating the motor vehicle while under the influence of alcohol. However, the statute's use of the phrase "at the time alleged" does not require us to hold that the State was...