2005-111, STATE OF NH v. SHAWN KELLEY

custody. concluded that Kelley was intoxicated, and tried to take him into protective police to report Kelley’s behavior. Three officers arrived at the reception,

pulled away and started to run. The officers grabbed him and told him to put

See RSA ch. 172-B (2002 & Supp. 2005). As they did so, Kelley

Kelley became intoxicated. The bartender at the reception called the Newport The record supports the following. While attending a wedding reception,

against the defendant, Shawn Kelley. We reverse and remand. Court (Cardello, J.) dismissing a complaint of resisting arrest or detention filed BRODERICK, C.J. The State appeals a ruling of the Newport District

and orally, for the defendant. Theodore Lothstein, assistant appellate defender, of Concord, on the brief

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant Errors may be reported by E-mail at the following address:

No. 2005-111 errors in order that corrections may be made before the opinion goes to press. Newport District Court Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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. 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 p. 2 22 as 2

sufficient to resolve this case. determine that the terms are unambiguous, a plain meaning analysis is the plain meaning to divine legislative intent. We disagree. Because we

“technical or otherwise peculiar meaning,”

detentions falling short of arrest such as a

light of the policy or purpose advanced by the statutory scheme.

(1981), thus rendering RSA 64 p. 2 2:2 ambiguous and allowing us to look beyond detention under RSA 642:2.” This appeal followed. State v. Berry, 121 N.H. 324, 327 U.S. 1 (1968). He contends that defining “detention” in this manner gives it a arrest or detention because “RSA 172-B:3 protective custody is not an arrest or Over the State’s objection, the trial court dismissed the charge of resisting Terry stop.” See Terry v. Ohio, 392 because “the legislature intended [it] to encompass arrests, and quasi-criminal falling short of a full-blown arrest.” Kelley argues that RSA 642:2 should be limited to the criminal context

consider words and phrases within the context of the statute as a whole, and in plain and ordinary meaning to the words used by the legislature. Id. We ( p. 2 2003). When construing a statute, we first examine its language, ascribing the of law, we review its ruling de novo. See State v. Boulais, 150 N.H. 216, 218 As the trial court engaged in statutory interpretation, which is a question

each question in turn. transgressions against the welfare and morals of the public. Laws 1979, 378:1. (1976); see also State v. Hutton, 108 N.H. p. 2 279, 285-87 (1967). We address those conditions as health and social problems rather than criminal State v. Fleury, 116 N.H. 577, 578, 579 alcoholism and alcohol abuse. Kelley contended that the legislature defined criminal context, RSA 642:2 applies to “other forms of seizures of the person take intoxicated individuals into protective custody was to decriminalize protective custody under RSA 172-B:3. We have previously stated that, in the detentions in the criminal context, and, if not, whether it encompasses dismiss, we must decide whether RSA 642:2 applies exclusively to arrests and In addressing whether the trial court erred in granting Kelley’s motion to

cruiser, during which time Kelley shouted for help.

criminal statute. He further argued that the policy behind allowing officers to therefore, does not qualify as “arrest or detention” for purposes of RSA 64 p. 2 2:2, a that “protective custody” under RSA chapter 172-B is a civil status and, 2005). He moved to dismiss the charge of resisting arrest or detention, arguing one count of disorderly conduct. See RSA 642:2 (1996); RSA 644:2 (Supp. Kelley was charged with one count of resisting arrest or detention and

officers finally managed to take him into custody and place him in the police his hands behind his back, but he refused and “continued to tighten up.” The civil status in which an incapacitated person is

RSA 172-B:1, X; RSA 172-B: p. 3 3. The term “protective custody” is defined as “a substantially impaired as a result of the presence of alcohol in his system.” custody an individual whose “mental or physical functioning . . . is alcohol abuse. That chapter allows peace officers to take into protective

many years, its use of “detained” indicates that the legislature intended that it As RSA 172-B:1, XIII was enacted after RSA 642:2 had been in effect for

RSA 172-B:1, XIII (emphasis added).

statutes. One example is in RSA chapter 172-B regarding alcoholism and defined in the Criminal Code, but derivatives of it are used elsewhere in the includes the protective custody authorized by RSA 172-B: p. 3 3. “Detention” is not detentions, we must now determine whether “detention,” as used in RSA 642:2, Having determined that this section is not limited to “criminal”

context. to hold that RSA 642:2 does not apply solely to detentions in the criminal of the “detentions” to which RSA 642:2 may apply. It is sufficient for this case State v. Haas, 1 p. 3 34 N.H. 480, 484 (1991). We need not define the precise scope

on the street or in the gutter. some other orderly process, rather than by physical confrontation government, and those who do not, resolved in the courts or by context. have apparent differences between those who wield the authority of passing day is enlightened when its laws reflect a high purpose to A society which seemingly becomes more complex with each

818 (2005). We have further recognized: delay.” and provides for the safety of officers. See State v. Beauchesne, 151 N.H. 80 p. 3 3, doing so fosters the effective administration of justice, discourages self-help, individuals are to follow the commands of law enforcement officials, because purpose. By enacting this section, the legislature articulated a policy that Our plain meaning analysis is further supported by the statute’s

ignores the plain meaning and arbitrarily assigns it solely to the criminal takes on the technical or otherwise peculiar meaning suggested by Kelley if one criminal context to the exclusion of other applications. Indeed, the word only 1961). Nothing in these definitions suggests that “detain” must be applied in a Webster’s Third New International Dictionary 616 (unabridged ed. means “to hold or keep in or as if in custody,” “to keep back,” and to “stop [or] effect an arrest or detention of the person or another.” RSA 6 p. 4 42:2. “Detain” law enforcement official, including a probation or parole officer, seeking to knowingly or purposely physically interferes with a person recognized to be a The crime of resisting arrest or detention is committed when a “person 4

whom to charge with resisting arrest and detention. The policies set forth by However, we urge prosecutors to exercise their discretion in determining

309, 311-13 (199 p. 4 4) (examining public safety exception to exclusionary rule). place the general public or officers in harm’s way. Cf. State v. Lopez, 139 N.H. and require public assistance, we will not excuse or condone conduct that may 135 N.H. 369, 372 (1992). While these often include those who are intoxicated occasions with the most unruly members of our population. State v. Murray, We recognize that it is the police officer’s unhappy lot to deal on many

protective custody under RSA 172-B:3. knowingly or purposely physically interferes with his being taken into for resisting arrest or detention under RSA 6 p. 4 42:2 where the individual and premeditation.”). Accordingly, we hold that an individual may be convicted public. the province of the jury to determine whether intoxication negated deliberation which is not directly injurious to the welfare or property of the 626:4 (1996); RSA 172-B:4; alcoholic beverages or other behavior related to consumption State v. Hamel, 123 N.H. 670, 678 (1983) (“It was any criminal act, although it may negate an element of an offense. See RSA Laws 1979, 378:1. However, intoxication is not an excuse or justification for

of the public. The general court therefore declares that: congruent with their needs. rather than criminal transgressions against the welfare and morals appropriate medical and other humane rehabilitative services socially disabled persons and shall be provided adequate and II. Alcoholics and alcohol abusers shall be treated as sick and

was to equate resisting protective custody with resisting detention. criminal prosecution solely because of their consumption of protective custody from the ambit of RSA 6 p. 4 42:2, we conclude that its intent I. Alcoholics and alcohol abusers shall no longer be subjected to 642:2 to apply only to criminal cases, nor explicitly exempted RSA 172-B:3

words advisedly. alcohol abuse are correctly perceived as health and social problems It is the policy of the state of New Hampshire that alcoholism and

articulated the policy behind the protective custody statute: We recognize that, in the preamble to RSA chapter 172-B, the legislature

to use the word “detained” in RSA 172-B:1, XIII, and neither amended RSA

Starr v. Governor, 151 N.H. 608, 610 (200 p. 4 4). Where it chose

legislature knew the meaning of the words it chose, and that it used those be included within the scope of the earlier statute. We presume that the p. 5 5

642:2, and remand for further proceedings consistent with this decision.

as well when sentencing such offenders.

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

that RSA 172-B:3 protective custody is not an arrest or detention under RSA Accordingly, we reverse the trial court’s order to the extent that it ruled

making these decisions, and our trial courts are encouraged to consider them the legislature in the preamble to RSA chapter 172-B should be considered in