2004-742, STATE OF NH v. SUZANNE BARKUS

were not, then t he evidence was insufficient to convict her. We affirm. were admitted, the trial court improperly relied upon them, and that if they v. Arizona, 384 U.S. 436 (1966). The defendant contends that if the results administered following an alleged violation of her Miranda rights. See Miranda inform the parties whether it had suppressed the results of a breath test (2004). She argues that the Salem District Court (Korbey, J.) erred in failing to for driving while under the influence of intoxicating liquor. See RSA 265:82 DALIANIS, J. The defendant, Suzanne Bark us, appeals her conviction

and orally), for the defendant. R obert Stein & Associates, PLLC, of Concord (Robert A. Stein on the brief

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Peter K. Odom, assistant attorney

No. 2004 - 742 Salem District C ourt

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

trial court take judicial notice that I - 93 is a “way” as defined in RSA p. 2 259:125 proved[.]”). The State responded with a motion in limine requesting that the least ten days prior to trial if said ‘way’ or public highway must be formally See Dist. Ct. R. 1.22 (“[A] party shall notify the opposing party or counsel at de manding formal proof that I - 93 is a “way,” a required element of this offense. intoxicating liquor under RSA 265:82. Prior to trial, she filed a notice The defendant was charged with driving while under the influence of

concentration of 0.16. then performed the breath test, the results of which showed a blood alcohol an administrative license suspension (ALS) rights form, which she s igned. He Windham Police Department. Upon arrival, Trooper Kane read the defendant to submit to a breath test. She stated that she was, so he brought her to the Police Department was inoperable. He ask ed the defendant if she was willing Trooper Kane learned that the breath analysis machine at the Salem

cruiser and brought her to the Salem Police Department. driving while under the influence. Trooper Kane placed the defendant in his After administering the test, he informed her that she was unde r arrest for generally id. He then asked her to submit to a preliminary breath test (PBT). glass. At no time did he provide the defendant with Miranda warnings. See a series of questions regarding her physic al condition and the contents of the Trooper Kane approached the defendant in the ambulance and asked her

the smell of Kahlua, a liqueur. registration from the car, he smelled the contents of the glass and recognized containing a brown liquid in the driver’s cu p holder. While retrieving the treated, Trooper Kane examined her vehicle and observed a “clear glass” taken to an ambulance that had arrived at the scene. While she was being if she h ad been drinking, and she replied that she had not. She was then Trooper Kane noticed that the defendant’s speech was slurred. He asked

Massachusetts, before changing her answer to Bretton Woods, New Hampshire. was coming from; she replied that she had been skiing at Bretton Woods, happened. She replied that she did not know. He then asked her where she defendant produce her license and registration, and then asked her what had noted a strong odor of vomit in the immediate area. He requested that the appeared “dazed or confused” and her eyes were glazed over. Trooper Kane Trooper Kane found the defendant seated in the driver’s seat. She

the driver’s side of the vehicle appeared to be covered in mud and vomit. southbound shoulder of the highway near Exit 1 in Salem. He observed that Interstate 9 p. 3 3 (I - 93), came upon an automobile parked at an angle on the April 1, p. 2 2004, New Hampshire State Trooper David Kane, while patrolling The record supports the following facts. At approximately 3:00 p.m. on 3

erred in failing, both during and after trial, to “provide findings of fact and law The defendant, citing RSA 491:15 (1997), asserts that the trial court

and District Court Rule 1.22. prove that the alleged offense occurred on a “way” as required by RSA 265:82 to convict her. Finally, the defendant argues that the State failed to formally the results were suppressed, she contends that there was insuffi cient evidence admitted, they constituted inadmissible “fruit of the poisonous tree.” But, if the results of the Windham breath test. She asserts that if the results were inform the parties, either during or after the trial, whether it had suppressed On appeal, the defendant argues that the trial court erred in failing to

the influence of intoxicating liquor. evidence presented at trial” that the defendant was guilty of driving while under public way. It further noted that the trial court found “on the ba sis of all the had failed to object at trial to the court’s taking of judicial notice that I - 9 p. 3 3 is a on September 29, 2004, and denied it. The order explained that the defendant The trial court heard argument on the motion a t the sentencing hearing

purposes of RSA 265:82 (2004). upon the State’s purported failure to establish that I - 9 p. 3 3 was a “way” for the breath test. She further urged the trial court to reconsider its verdict based trial court specify whether or not it had suppressed the resu lts of the Windham defendant moved for clarification and/or reconsideration, requesting that the on August 12, 2004, finding the defendant guilty. On August 18, 2004, the After taking the case under ad visement, the trial court issued an order

of the poisonous tree.” The trial court took the matter under advisement. Department (the Windham breath test) on the grounds that it constituted “fruit obj ected to the admission of the breath test taken at the Windham Police defendant was in the ambulance. Relying upon that ruling, the defendant then suppressed the inculpatory statements elicited by Trooper Kane while the again invoking the State and Federal Constitutions, and the trial court the PBT results. The defendant argued in suppo rt of her motion to suppress, At the August 10, 2004 trial, the State conceded the inadmissibility of

court did not address the motions prior to trial. scene violated her rights under the State and Federal Constitutions. The trial The motion contended that Trooper Kane’s questioning of the defendant at the State from the use and/or comment on evidence seized from the defendant.” The defendant also filed a pre - trial motion to “suppress and preclude the

formally prove that element of the offen se at trial and in her presence. (200 p. 4 4). The defendant objected, asserting that the State was obligated to 4

court’s legal conclusions, however, is de novo. Id. erroneous. State v. Hight, 1 p. 4 46 N.H. 746, 748 (2001). Our review of the trial its factual findings unless they lack support in the record or are clearly When reviewing a trial court’s ruling on a motion to suppress, we accept

N.H. 226, 231 - 33 (1983). cla ims, relying upon federal law only to aid in our analysis. State v. Ball, 12 p. 4 4 protections of the New Hampshire Constitution, we must first address those violated the State and Federal Constitutions. When a defendant invokes the breath test, and, thus, admitting the results of the Windham breath test court and the inadmissible PBT results are inex tricably tied to the Windham The defendant contends that the statements suppressed by the trial

assumption that the results of the breath test were admitted into evidence. verdict up on “all the evidence presented at trial,” we proceed upon the specifically suppress the results of the Windham breath test and based its helpful to this court. Nonetheless, because the trial court declined to written findings provide a clear basis for appellate review and, as such, are Though we find no unsustainable exercise of discreti on, we do note that

(1993). and do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 p. 4 491:15). The defendant’s remaining arguments on this issue are without merit because neither party requested finding s of fact or rulings of law under RSA 814 (2004) (trial court’s order denying motion for clarification was sufficient was, therefore, not error. See Town of Merrimack v. McCray, 150 N.H. 811, motion for cla rification and/or reconsideration without further explanation 122 N.H. 587, 590 (1982). The trial court’s order denying the defendant’s is not required to issue findings of fact and rulings of law. See Hardy v. State, the trial court’s denial. Absent a request pursuant to RSA 491:15, a trial court 144 N.H. 262, 264 (1999). We find no unsustainable exercise of discretion i n Municipality of Conway, 144 N.H. 642, 654 (2000); see also Smith v. Shephard, absent an unsustainable exercise of discretion. See Mt. Valley Mall Assocs. v. We will uphold a trial court’s decision on a motio n for reconsideration

request was denied. court’s findings in her motion for clarification and/or reconsideration. This its order finding the defendant guilty that she requested an explication of the found and the rulings of law . . . .”). It was not until afte r the trial court issued shall, if either party requests it, give his decision in writing, stating the facts of law pursuant to RSA p. 4 491:15. See RSA 491:15 (“The court or justice . . . At trial, neither party submitted a request for findings of fact and rulings

p. 4 491:1 p. 5 5 applies, we disagree. adequate for proper appellate review.” Assuming without deciding that RSA 5

confession than with the confession itself might reasona bly decide that the (“An officer more concerned with the physical fruits of an unlawfully obtained holding was the deterrence of initial unlawful police conduct. Id. at 182 - 83 primary illegality and the subsequent search. Id. The stated rationale for our the fact that no act of free will on the defendant’s part intervened between the waiver.” Id. at 182 (emphasis added). Essential to our reasoning in Gravel was under authority of a search warrant founded on statements obtained without a with the inanimate evidentiary products of a Miranda violation, items seized Gravel is inapposite to the case before us. In that case, we were “faced

at trial. Id. at 176. subsequent search was illegal and all evidence seized thereby was inadmissible because the search warrant was tainted by the Miranda violation, the the defendant’s conviction for possession of cocaine, we concluded that ultimately yielded cocaine and related paraphernalia. Id. at 174 - 7 p. 5 5. Reversing Miranda rights, then used that information to procure a search w arrant that In Gravel, police elicited information from a defendant in violation of his

of this case. (1991). The defendant now urges us to apply our holding in Gravel to the facts violation are inadmissible at trial. State v. Gravel, 1 3 p. 5 5 N.H. 172, 180 - 84 context, holding that certain physical evidentiary fruits derived from a Miranda Constitution, has specifically interpreted the doctrine to apply in the Miranda (2004). This court, construing P art I, Article 15 of the New Hampshire U.S. 433, 446 - 47 (1974); but see United States v. Patane, 124 S. Ct. 2620 “poisonous tree” was a Fifth Amendment violation. Michigan v. Tucker, 417 Stat es later suggested that the doctrine could be extended to cases where the I, Article 19 of New Hampshire Constitution). The Supreme Court of the United N.H. at 649 - 50 (where the “primary illegality” was a purported violation of Part Amendment violation. See Wong Sun, 371 U.S. at 484 - 88; see also Cobb, 143 search and seizure context, with the primary illegalit y being a Fourth The “fruit of the poisonous tree” doctrine was initially developed in the

results in our “fruit of the poisonous tree” analysis. only be cause of a statutory violation. Therefore, we decline to consider the assume that the PBT results were inadmissible at trial, they were inadmissible New Hampshire Constitution be excluded from trial). We note that even if we evidence derivatively obtained through a violation of Part I, Article 19 of the N.H. p. 6 638, 6 p. 5 50 (1999) (The “fruit of the poisonous tree” doctrine r equires that See, e.g., Wong Sun v. United States, 371 U.S. 471 (1963); State v. Cobb, 143 The “fruit of the poisonous tree” doctrine is one of constitutional application. should have been suppressed as “fruit of the po isonous tree.” We disagree. The defendant first contends that the results of the Windham breath test 6

law, RSA 2 p. 6 65:84, states that “[a]ny person who drives a vehicle upon the ways As to the inadmissible statements, New Hampshire’s “implied consent”

second test. provide the mandated advisory did not preclu de the administration of the 2 p. 6 65:84.” Id.; see also RSA 265:84 (2004). The fact that Trooper Kane did not shall be construed to prevent or require a subsequent test pursuant to RSA However, RSA 265:92 - a, I, also states that “nothing contained in this section subsequent test pursuant to RSA 265:84.” See RSA 265:92 - a, I (2004). her taking of the test [would] not be construed to prevent or require a defendant, as required by RSA 265:92 - a, that “her failure to take the test or . . . by the State), it was inadmissible only because Trooper Kane did not ad vise the First, assuming that the PBT was inadmissible (and therefore never proffered evidence precludes independent consideration of the Windham breath test. We disagree with the defendant’s asserti on that the earlier, inadmissible

be independently considered by the court.” were not “sufficiently attenuated from the earlier and inadmissible evidence to despite the intervening ALS warnings, the results of the Windham breath test established, she continued to cooperate with Trooper Kane. She contends that incriminating statements and the PBT results. Believing her guilt to be firmly breath test, “the proverbial cat was out of the proverbial bag” because of her The defendant next argues that w hen she assented to the Windham

doctrine to the case before us. will.”). We therefore decline to apply the Gravel “fruit of the poisonous tree” the derivative second confession [is] a product of the defendant’s own free ascribing taint to and excluding [a] later confession [is] difficult to justify when of Gravel. See Gravel, 135 N.H. at 182 (“[D]eterrence of police misconduct by enforcement function, while doing little to further the intended deterrent effect we would curtail the ability o f the police to perform an important law 2 p. 6 65:87, is inadmissible simply because it follows an earlier Miranda violation, we to hold that a breath test, otherwise lawfully administered pursuant to RSA rights, the d efendant engaged in an intervening act of her own free will. Were civilly liable.”). By electing to proceed with the test after being informed of her that evidence may itself be considered in determining whether he is guilty or . . . but in return he will lose his license for a time and his decision to suppress N.H. 253, 258 (1985) (“[A] defendant may suppress [blood alcohol test] evidence refusing to provide the physical evidence at issue. See State v. Cormier, 127 the appellant in Gravel, the defendant here was presented with the option of test after being advised of her right to refuse under RSA 265:87 (2004). Unlike In this case, the defendant voluntarily consented to the Windham breath

statements.”). benefits of securing admissible derivative evidence outweighed the loss of the p. 7 7

establish that the alleged offense occu rred on a “way,” a required element of the The defendant’s final argument is that the State failed to formally

Accordingly, the evidence was sufficient to convict her. law in denying the defendant’s motion to suppress the Windham breath test. Based upon the foregoing, we find that the trial court did not err a s a matter of contest that the statutory prerequisites for the Windham breath test were met. Schmerber, 384 U.S. at p. 7 760 - 64. We further note that the defendant does not LeCouffe, 152 N.H. 148, 152 (2005); see also Patane, 124 S. Ct. at 2629 - 30; the Federal Constitution as we do under the State Constitution. See State v. context of the defendant’s arguments, we reach the same conclusions under Because th e Federal Constitution affords no greater protection in the

was not deprived of any protection under our State Constitution. the belief that the inadmissible statements already established her guilt, she Thus, even if the defendant consented to take the Windham breath test under refuse to provide a sample, it is not constitutionally obli gated to do so. Id. sample. Cormier, 12 p. 7 7 N.H at 258. Though it also grants a qualified right to constitutionally permitted to do, a qualified obligation to provide such a California, 384 U.S. 757 (19 66). The State therefore imposes, as it is defendant’s Fifth Amendment right against self - incrimination.”); Schmerber v. [can] force a defendant to submit to a blood - alcohol test without violating the of due proc ess.”); South Dakota v. Neville, 459 U.S. 553, 554 (1983) (“[A] State the State to obtain the defendant’s permission. . . . Neither does the guarantee at 255, 257 (1985) (“The privilege against self - incrimination does not require Zyla v. Turner, Director, 134 N.H. 259, 262 (1991); see also Cormier, 127 N.H. constitutional right to refuse to provide a sample for a blood alcohol test. See law that a driver arrested for driving while under the influence has no Constitution apply only to evidence that is testimonial in character, it is settled Moreover, because the protections of Part I, A rticle 15 of our State

encounter with Trooper Kane. State, the defendant impliedly assented to the breath test prior to her made “knowingly and intelligently”). By driving her vehicle on the roads of this alleging that a defendant’s decision to submit to a bl ood - alcohol test was not challenge brought under Part I, Article 15 of the New Hampshire Constitution exchanges with Trooper Kane. See id. at 6 p. 7 74 - 75 (rejecting a due process the defendant’s decision ma y have been influenced by the earlier, inadmissible State v. Jenkins, 12 p. 8 8 N.H. 672, 675 (1986). It is therefore immaterial whether driving on New Hampshire’s public roads implies consent to take the test.” that the act of submitting to a breath test “is voluntary because the very act of Div. of Motor Vehicles, 151 N.H. 315, 319 (2004). We have, accordingly, held influence of intoxicating liquor.” RSA 265:84; see also Saviano v. Director, N.H. examinations for the purpose of determining whether such person is under the of this state shall be deemed to have given consent to physical t ests and 8

concurred. BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ.,

that element of the offense was established. judicial notice that I - 93 was a “way” for the purposes of RSA 265: p. 8 82. Thus, Therefore, on the State’s proffer, the trial court should have taken mandatory of I - 93 as a “way” is generally known and not subject to reasonable dispute. maintained by the New Hampshire Department of Transportation.” The status determination by simply verifying the same through the records that are this court to be such a ‘public highway or street’ and is capable of ready the trial court that “Interstate 93 is generally known within the jurisdiction of of I - 93 as a “way” as defined in RSA 259:125. In its motion, the State informed “way” with a motion in limine re questing that the trial court take judicial notice The State responded to the defendant’s notice requesting formal proof of

necessary information. N.H. R. Ev. 201(e). judicial notice if it is requested by a party and the court is supplied with the questioned. N.H. R. Ev. 201(a)(1), (2). It is mand atory that a court take ready determination by resort to sources whose accuracy cannot reasonably be known within the jurisdiction of the trial court or capable of accurate and reasonable dispute. N.H. R. Ev. 201(a). Such a fact must either be generally A trial court may take judicial notice of a fact that is not subject to

thereby satisfying the “formal proof” requirement of the rule. See id. the rule that precludes a trial court from taking judicial notice of a fact and obligation. See Dist. Ct. R. 1.22. Moreover, there is nothing in the language o f Nothing in the language of District Court Rule 1.22 gives rise to such an presence, that I - 93 was a “way” for the purposes of RSA 265: p. 8 82. We disagree. Court Rule 1.22 placed an obligation upon the State to f ormally prove, in her The defendant contends that her pre - trial notice pursuant to District

(2004). crime, and that her conviction must, therefore, be reversed. See RSA 265: p. 8 82