2006-366, CHARLES HUDSON v. DIRECTOR, NH DMV

The plaintiff, Charles Hudson, appeals the denial by the

assistant attorney general, on the brief and orally), for the defendant. Kelly A. Ayotte, attorney general, of Concord (Nancy J. Smith, senior

brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Law Offices of Richard N. Foley, of Portsmouth (Richard N. Foley on the

DIRECTOR, NEW HAMPSHIRE DIVISION OF MOTOR VEHICLES

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2006-366 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham 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 blood were p. 2 court, which denied the petition, finding that any violations in the taking of the A:30). Hudson appealed the hearings examiner’s decision to the superior

privileges under RSA 265:91-a, II(b) (2004) (repealed and replaced by RSA 265-

meanings to the words used.

of 0.08 or more and was therefore subject to a suspension of his operating

the hearings officer are deemed to be unreasonable or unlawful, and all findings of fact on questions properly before bears the burden to show that the order upholding the suspension was clearly

examine the language of the statute and ascribe the plain and ordinary which, upon laboratory testing, revealed a BAC of 0.17. alcoholic cleanser used to prepare the skin. considered as a whole. State v. Gubitosi, 152 N.H. 673, 682 (2005). We first (ALS) form, which he read and signed. He then consented to a blood test, the person withdrawing the blood; and (3) does not list the type of non- are the final arbiter of legislative intent as expressed in the words of the statute administered alcohol concentration test that disclosed an alcohol concentration date and time the blood was drawn; (2) does not provide the name and title of Prison, 153 N.H. 603, 605 (2006). In matters of statutory interpretation, we upheld the order of suspension, finding that Hudson submitted to a properly is a question of law that we review de novo. Debonis v. Warden, N.H. State that accompanied his blood test to the laboratory. The hearings examiner 318 (2004). Resolution of this appeal requires statutory interpretation, which 263:75 (2004); Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315,

In an appeal to the superior court from an ALS hearing, the plaintiff

hospital, Maloney presented him with an administrative license suspension alcoholic cleanser used and because the transmittal slip: (1) states the wrong should have been excluded because there was no indication of the type of noncomply with the applicable regulations due to mistakes in the transmittal slip violations were de minimis. Specifically, he argues that the blood test results On appeal, Hudson argues that the court erred in finding that the

de minimis.

transported to Portsmouth Regional Hospital for medical treatment. At the

administrative review of the record by a hearings examiner, alleging failure to purposes. The department suspended Hudson’s license. Hudson requested and laboratory results to the New Hampshire Department of Safety for ALS The Portsmouth Police Department referred the ALS form, arrest report

Maloney arrested Hudson for driving while intoxicated, and he was

alcohol content (BAC) of 0.168. failed. He also took a preliminary breath test (PBT), which revealed a blood the commissioner of the department of safety.” p. 3 court unless such test is performed in accordance with methods prescribed by considered as evidence in any proceeding before any administrative officer or

(2004): “No tests of blood, urine or breath authorized by RSA 265:84 shall be

117 N.H. 163, 164 (1977), or the sample was taken by a person not specifically twelve-day delay between obtaining and testing the sample, State v. Varney, with the methods prescribed by the commissioner. Under RSA 265:85, IV improperly sealed, State v. Paul, 116 N.H. 252, 253-54 (1976), there was a the past, we have not excluded the results of blood tests where the sample was Groulx, 109 N.H. 281, 282 (1969) (construing predecessor of RSA 265:85). In testing the blood, and not to the methods by which it was obtained. State v. RSA 265:85, IV and its predecessors as relating solely to the standards for For almost thirty years we have construed the exclusionary language in specimen collection form.

excluded the blood test as evidence when the transmittal slip failed to comply specimen . . . . Thus, the issue before us is whether the hearings examiner should have . . . . (5) The type of non-alcoholic cleanser used to prepare the site

265:85, I, 270:52 I or 215-A:11-d, I shall complete a blood accordance with He-P 2202.03; (4) The date and time the specimen was drawn in

. . . .

(1) The name and title of the person withdrawing the

(f) The completed blood specimen collection form shall include:

version at Hampshire Administrative Rules, He-P 2202.03(b), (f)(1), (4) and (5) (current (e) The person who collects the blood specimen pursuant to RSA

. . .

drugs. ingredients that would interfere with an analysis for alcohol or blood specimen will be drawn. The cleanser shall contain no (b) A cleanser shall be used to clean the area of skin where the

N.H. Admin. Rules, Saf-C 6402.02), which required in pertinent part:

methods prescribed by the commissioner of the department of safety in New The parties do not dispute that the State’s form did not comply with the in the taking of the blood were p. 4 hearings examiner was not error. The superior court ruled that any violations

standards for testing blood. Therefore, the admission of the blood test by the

itself was not performed in accordance with the regulations governing the

results. Finding no error, we affirm.

standards for conducting the chemical test.

reliability of the blood test itself and no argument presented that the blood test BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

properly assign little weight to the violations in considering the blood test corroborating evidence as Hudson’s PBT result, the superior court could

dissent, the court has consistently construed the exclusionary language such important part of the test because it relates to the test’s reliability. Despite his

Here, there is no evidence in the record that the violations affected the

Paul, 116 N.H. at 254 (citing LaFountain, 108 N.H. at 231).

may affect the weight given to the test, but not its admissibility under the not require exclusion of the test results under RSA 265:84, IV; such violations violations of regulations governing the methods used in obtaining the blood do

dissented, stating that the method of securing the blood sample is an In State v. LaFountain, 108 N.H. 219, 222 (1967), Justice Grimes

violations did not relate to the standard for testing the blood. although these methods may have been required by regulation or statute, the permitted to do so by the statute, Groulx, 109 N.H. at 281-83, because,