State v. Van Wie
| Decision Date | 23 January 1978 |
| Docket Number | No. 7815,7815 |
| Citation | 118 N.H. 31,382 A.2d 372 |
| Parties | The STATE of New Hampshire v. David VAN WIE et al. |
| Court | New Hampshire Supreme Court |
David H. Souter, Atty. Gen. (Robert V. Johnson II, Asst. Atty. Gen., orally), for the State.
Struckhoff & Kelly, West Lebanon (Lawrence A. Kelly, West Lebanon, orally), for defendant David A. Van Wie.
Donald A. Ingram, Hanover, for defendants Karen L. Rickenrich and Thomas P. Hall.
Each of the defendants was charged in the Hanover District Court with the offense of driving while under the influence of intoxicating liquor, in violation of RSA 262-A:62 (Supp.1975). Each defendant submitted to a breathalyzer test at the time of arrest. RSA 262-A:69-a (Supp.1975). Alleging that the director of the division of public health failed to comply with the mandates of RSA 541-A:4 of the Administrative Procedure Act and RSA 262-A:69-i(III) (Supp.1975) of the Implied Consent Law, each defendant, relying on RSA 262-A:69-i(IV) (Supp.1975) timely moved to exclude the results of the breathalyzer test. After trial and upon the consideration of memoranda submitted by the defendants and the State, but prior to the entry of verdicts, the Court, Slive, J., reserved and transferred the following questions of law under the provisions of RSA 502-A:17-a (Supp.1975) and RSA 491:17:
"A. Has the director of the division of public health prescribed methods for effecting chemical analysis of an arrested person's breath, in accordance with RSA 262-A:69-i(III)?
B. (1) Does the mandate of RSA 262-A:69-i(III) (Supp.) require the director of the division of public health to make a rule within the meaning of RSA 541-A:1(IV)?
(2) If so, has the director of the division of public health complied with the filing requirements of RSA 541-A:2(I)(c)?
C. Should the results of the breathalyzer test be excluded under RSA 262-A:69-i(IV) (Supp.) for failure of the tests to be performed in accordance with methods prescribed by the director of the division of public health?"
At the outset we note that these misdemeanor cases present new and important questions for this court, State v. Varney, 117 N.H. ---, 370 A.2d 289 (1977), and, therefore, "exceptional circumstances" exist under the test set out in State v. Doyle, 117 N.H. ---, 378 A.2d 1379 (1977) regarding the transfers of interlocutory matters.
This court has interpreted RSA 262-A:69-i to hold that its provisions are mandatory and not permissive, State v. Gallant, 108 N.H. 72, 76, 227 A.2d 597, 599 (1967), and impose upon the director an affirmative obligation to promulgate satisfactory methods. Defendants' first contention is that no methods have been "prescribed" by the director of the division of public health (hereinafter director) relative to the performance of chemical analyses of an arrested person's breath.
In 1973 the director filed with the director of legislative services a "Blood Alcohol Manual: A Manual of Information, Sampling, Analytical and Reporting Procedures relating to the Determination of Blood Alcohol Concentrations." (Hereinafter manual.) By issuing and filing the manual the director has taken sufficient affirmative action consistent with the statutory directive to approve and prescribe methods for ascertaining the chemical analyses of the arrested person's breath by a person certified for this purpose. See State v. Amato, 115 N.H. 639, 641, 348 A.2d 339, 341 (1975).
Part VI of the manual recites that this particular part was "(a)dopted under the authority of RSA 262-A:69-i(III)" and is entitled "Prescribed Methods and Qualifications of Personnel Associated with the Chemical Analysis of a Person's Breath for Determining the Alcohol Content of His Blood." (Emphasis added.) The approved method of administering a breathalyzer test is clearly embodied in the manual. It states that the test should be performed with "instruments . . . designed for the express purpose of accurately determining the alcohol content of the breath." It also sets forth a maintenance schedule for the instruments, specifies the chemicals to be employed, regulates the collection of samples, and requires that the report of findings be accompanied with a properly executed operational checklist. This checklist is the method prescribed by the manufacturer of the particular breathalyzer. See State v. Gillis, 114 N.H. 417, 419, 321 A.2d 576, 577 (1974). A brief check of other jurisdictions shows that there is no one authoritative form that these rules and regulations concerning blood alcohol content take even though some of the jurisdictions have similar implied consent sections and administrative procedure acts. See City of Cincinnati v. Duhart, 41 Ohio App.2d 127, 322 N.E.2d 897 (1974); People v. Crawford, 23 Ill.App.3d 398, 318 N.E.2d 743 (1974); City of Olympia v. Sprout, 5 Wash.App. 897, 492 P.2d 586 (1971). We hold, however, that the form used by the director constitutes compliance with the statute.
The defendants also contend that the Administrative Procedure Act, RSA 541-A (Supp.1975) (hereinafter APA) imposes additional obligations upon the director in this case. The APA provides a procedure, including hearings, for the adoption of rules by State agencies. Under RSA 541-A:1(I) (Supp.1975) the division of public health services is a department within the executive branch of State government and, therefore, is an agency subject to the APA. Whether the APA applies and compels the director to comply with the adoption and filing requirements depends upon whether the statements contained in the manual prescribing and approving the methods relative to the chemical analyses are "rules" within the definition set forth in RSA 541-A:1(IV) (Supp.1975). This section provides:
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