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2005-546, DANIEL PROULX v. DIRECTOR, NH DIVISION OF MOTOR VEHICLES
emanating from the vehicle, Officer Barnett asked the plaintiff to submit to field
slurred, his eyes were glassy and bloodshot, and a faint odor of alcohol was
(DMV). We affirm. defendant, the Director of the New Hampshire Division of Motor Vehicles
Superior Court (
cross the double yellow line. After noticing that the plaintiff’s speech was Brookline Police Department stopped the plaintiff’s vehicle after observing it dispute on appeal. On September 10, 2004, Officer Douglas Barnett of the The trial court recited the following facts, which the parties do not
Department of Safety upholding the suspension of his driver’s license by the
Hicks, J.) affirming the decision of the New Hampshire
DALIANIS, J.
The plaintiff, Daniel Proulx, appeals the order of the
attorney general, on the brief and orally), for the defendant. Kelly A. Ayotte, attorney general (Wynn E. Arnold, senior assistant
to press. Errors may be reported by E-mail at the following address: Robert J. Moses, of Amherst, by brief and orally, for the plaintiff.
Opinion Issued: November 3, 2006 Argued: September 13, 2006
DIRECTOR, NEW HAMPSHIRE DIVISION OF MOTOR VEHICLES
page is: http://www.courts.state.nh.us/supreme. v.
DANIEL PROULX
editorial errors in order that corrections may be made before the opinion goes No. 2005-546 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as refused to submit to any blood test.
officer and court of this state.”
the form. Ultimately, for reasons not relevant to this opinion, the plaintiff
shall be inadmissible as evidence in any proceeding before any administrative
signed the form. The plaintiff initialed each line, indicating that he understood about one of the lines on the form, the plaintiff agreed to the blood test and where he again read the ALS form to the plaintiff. Following a brief discussion enforcement officer fails to comply with the provisions of [RSA 265:87], the test of the law enforcement officer.” Under RSA 265:87, II (2004), “[i]f the law [i]nform him of the consequences of his refusal to permit a test at the direction
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agreed. He transported the plaintiff to a nearby hospital for the blood test, court, which upheld the decision of the hearing examiner.
to be blood, urine or breath . . . is given, the law enforcement officer shall . . . all findings of fact on questions properly before the hearings officer are deemed
his license “could” be suspended if he refused to submit to it. is legally erroneous. superior court’s decision on appeal unless the evidence does not support it or it See RSA 265:91-b, II(f) (2004) (no license such order is unjust or unreasonable.” RSA 263:76 (2004). We will uphold the
the state.” The plaintiff then asked if he could take a blood test and Barnett breathalyzer test. Barnett responded “that his license could be suspended by the suspension be upheld. Thereafter, the plaintiff appealed to the superior then asked Barnett about the consequences of refusing to submit to the (2004). RSA 265:87, I(c) (2004) requires that, “[b]efore any test of a person’s the burden to show that the order was clearly unreasonable or unlawful, and submit to the test designated by the law enforcement officer. RSA 265:92, I New Hampshire law mandates license suspension for those who refuse to
See Saviano, 151 N.H. at 318. the consequences of refusing the requested test because Barnett told him that
the court is satisfied, by a clear preponderance of the evidence before it, that superior court may not set aside or vacate the decision appealed from “unless Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 318 (2004). The suspension of his driver’s license. The hearing examiner recommended that prima facie lawful and reasonable. RSA 263:75, II (2004); see also breathalyzer test. The plaintiff replied that he wanted to think about it. He
In an appeal to the superior court from an ALS decision, the plaintiff has
On appeal, the plaintiff argues that Barnett inadequately advised him of
The plaintiff requested an administrative hearing to challenge the suspension (ALS) form to the plaintiff and asked if he would submit to a
Once in the police cruiser, Officer Barnett read the administrative license
under the influence. sobriety tests. Officer Barnett subsequently arrested the plaintiff for driving hearing examiner reasonably could have found that any misunderstanding
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the officer told him that “his license could be suspended by the state,” the
your own expense. portion of our sample of your breath, blood, or urine for testing at
Although after the officer read the ALS form to the plaintiff for the first time, statements and signed where it stated: “I have been informed of these rights.” this state will be suspended. was read to the plaintiff for a second time, he initialed each of the above See Saviano, 151 N.H. at 316-17. The record further shows that after the form
resident operating privilege to drive in this state will be suspended. New Hampshire driver’s license/operating privileges or non- 6. If you refuse to submit to a test requested by the officer, your
such an additional test(s). You also have the right to obtain a admissible in court. 5. If you refuse to take a test or tests, the refusal can be
in pertinent part: decision. The officer read the ALS form to the plaintiff twice. That form states, privileges or non-resident operating privilege or right to drive in suspended if he refused to submit to the test, we uphold the trial court combination of these. of 0.02 or more), your New Hampshire driver’s license/operating alcohol concentration of 0.08 or more (or if you are under age 21, 4. If you submit to a blood, urine or breath test which shows an
expense. Upon your request, you will be given the opportunity for breath taken by a person of your own choosing at your own 3. You have the right to a similar test or tests of blood, urine or
officer adequately advised the plaintiff that his driver’s license would be to perform a breath, blood or urine, or physical test, or any alcohol or drug concentration in your system. You may be asked discretion of a law enforcement officer, in order to determine the his license or driving privilege”). 2. You are being asked to submit to a test or tests, at the
alcohol or drugs. 1. You have been arrested for driving under the influence of
Because there is evidence in the record to support a finding that the
person of the fact that refusal to permit the test would result in suspension of suspension unless hearing officer finds that “officer informed the arrested 4
BRODERICK, C.J., and DUGGAN and GALWAY, JJ., concurred.
Affirmed.
the plaintiff for the second time. from the officer’s use of the word “could” was cured when he read the form to