2007-279, STATE OF NH v. DAVID A. MACDONALD

The defendant, David A. MacDonald, appeals his

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Esther B. Piszczek, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2007-279 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 stopped the defendant.

produced his license and registration. The moment that the defendant began stop in itself.” Meyer had to repeat himself several times before the defendant

speed for a “downtown” area. Meyer was so “alarm[ed]” that he pulled out and defendant’s car “stuck out” because it was traveling at an “excessive” rate of when “everybody [is] piling out of the bars.” At about 1:15 a.m., the that “get[s] a lot of bar . . . [and] pedestrian traffic” at that time because it’s

doubt. defendant “seemed somewhat confused” as if he were “sort of perplexed by the that the defendant was under the influence of alcohol beyond a reasonable Meyer asked the defendant for his license and registration. The

was sitting in his patrol car and observing a public road in downtown Dover, Meyer testified that at approximately 1:00 a.m. on February 1 p. 2 2, 2006, he

light most favorable to the State, we hold that a rational juror could have found Considering the evidence and all inferences to be drawn from it in the

was impaired to any degree. State v. Wiggin, 151 N.H. 305, 309 ( p. 2 2004). influence of intoxicating liquor,” the State need only prove that the defendant influence of intoxicating liquor.” To prove that the defendant was “under the attempt to drive a vehicle upon any way . . . while such person is under the influence of intoxicating liquor. RSA 265:82, I, provides, in pertinent part: “No person shall drive or solely circumstantial, it was sufficient to convict him of driving while under the evidentiary item in context, not in isolation. Id. consider the evidence in the light most favorable to the State and examine each all rational conclusions except guilt. Id. Under this standard, however, we still 416, 424 (2003). When the evidence is solely circumstantial, it must exclude could have found guilt beyond a reasonable doubt. State v. Evans, 150 N.H. and all reasonable inferences from it in the light most favorable to the State, station. defendant must prove that no rational trier of fact, viewing all of the evidence influence of alcohol, placed him under arrest, and transported him to the police To prevail upon his challenge to the sufficiency of the evidence, the

dispute because, even if we assume, without deciding, that the evidence was consisted of both circumstantial and direct evidence. We need not resolve this parties dispute whether the evidence in this case was solely circumstantial or support a finding that he was under the influence of intoxicating liquor. The On appeal, the defendant argues that the evidence was insufficient to

observations and training, Meyer concluded that the defendant was under the perform three field sobriety tests, all of which he failed. Based upon his keep it up for the full thirty seconds. p. 3 During the test, the defendant was unable to raise his foot three inches and

the one-leg stand test. Again, the defendant had trouble staying balanced.

would prevent him from performing the tests. imaginary straight line. Meyer next instructed the defendant how to perform refused to take a blood-alcohol concentration test. not in any one of the steps.” Nor could he turn as directed or walk an balance. During the actual test, the defendant’s feet “were never heel to toe, could not keep his left foot in front of his right foot and he kept losing his

resolve). rebut State’s evidence, but any conflicts in evidence were for fact finder to back of the car. The defendant did not mention any physical limitations that throughout the booking process. Additionally, he testified that the defendant conditions affected his ability to perform field sobriety tests may have tended to difficulty with his contact lenses, ankle and knee problems and that snowy instructing the defendant how to perform it. During this phase the defendant intoxicated. See Wiggin, 151 N.H. at 309-10 (testimony that defendant had could have found beyond a reasonable doubt that the defendant was in the light most favorable to the State, we conclude that a reasonable juror Viewing this evidence and all reasonable inferences to be drawn from it

January 1, 2007). (repealed, amended and reenacted as RSA 265-A:10 (Supp. 2007), effective

his hand on the car. He held on to the car as he walked from the front to the strongly of alcohol, he seemed “out of it,” and Meyer had to repeat himself and was unsteady on his feet. To keep his balance, the defendant had to put the defendant continued to exhibit signs of intoxication: his breath smelled of debris. He observed that the defendant had difficulty getting out of the car that the defendant was impaired and then arrested him. At the police station, side as possible. Meyer then conducted the walk-and-turn test, first interaction with and observations of the defendant, Meyer formed the opinion defendant’s eyes bounced at the point where the pupil was as far over to the Based upon the defendant’s performance on all three tests and Meyer’s the onset of nystagmus occurred prior to forty-five degrees, and each of the

perform three field sobriety tests, choosing a location that was well lit and clear

even understand what he was saying.” Both of the defendant’s eyes involuntarily jerked while trying to follow the pen, Meyer first administered the Horizontal Gaze Nystagmus (HGN) test.

Meyer further testified that he told the defendant to step out of the car to

breath. When he asked the defendant where he had been, Meyer “couldn’t speaking, Meyer smelled “the strong odor” of alcohol emanating from his p. 4 4

the walk-and-turn test were essentially unremarkable.” light most favorable to the State, a rational juror could have found beyond a set of facts, viewed in context. Given the evidence in this case, viewed in the the HGN test. In therefore, not controlling. Our decision in Lorton was based upon its precise For the above stated reasons, Lorton is easily distinguished and,

any way.” process. at the police station that Meyer had to repeat himself during the booking lean on his car for balance. In exhibited continued signs of intoxication after his arrest, by being so “out of it” free of debris. Further, unlike the defendant in Lorton, the defendant here also conditions,” id. at 735, while here the tests were conducted in a well-lit area, Additionally, in Lorton, both tests “were conducted under less than ideal

and the one-leg stand test and “the results of the defendant's performance on

Lorton, the defendant performed only the walk-and-turn test

The defendant in this case failed all three field sobriety tests, including

Id. at 73 p. 4 4.

out of his car and “walked with a normal gait without stumbling or faltering in from [the defendant’s] breath,” while in Lorton, the defendant had no difficulty getting had difficulty getting out of his car, was unsteady on his feet, and needed to Meyer instantly noticed “the strong odor of an alcoholic beverage emanating signs of physical impairment than did the defendant in Lorton. The defendant Additionally, the defendant here demonstrated significantly stronger

for driving. Id. at 732-33. license and registration without incident and effectively articulate his reason had been. In contrast, the defendant in Lorton was able to produce both his response in producing both, and mumbled unintelligibly when asked where he confused upon being asked for his license and registration, had a delayed “moderate” odor. Id. at 732 (quotation omitted). Here, the defendant appeared

obvious, immediate signs of intoxication. Upon speaking to the defendant, In contrast to the defendant in Lorton, the defendant here demonstrated

and . . . stopped in a safe and prudent manner.” Lorton, 1 p. 4 49 N.H. at 732-33. turn and failed to use a turn signal, he did not “operat[e] his vehicle erratically bars were closing. In Lorton, although the defendant had made a right-hand defendant because he was speeding in a crowded, downtown area just as the This case is distinguishable from Lorton. First, Meyer stopped the

his intoxication was insufficient to support his conviction. We disagree. driving under the influence of intoxicating liquor, holding that the evidence of N.H. 732, 733-3 p. 4 4 (2003), in which we reversed the conviction of a defendant for The defendant argues that this case is similar to State v. Lorton, 149 p. 5 5

impairment.” In light of our holding, we need not address this issue. impaired based on such observations is circumstantial evidence of

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

observations of intoxicated behavior or a witness’s opinion that a defendant is extent that Lorton can be said to hold that either a witness’s direct We note that the State urges us to clarify or overrule Lorton “to the

intoxicating liquor and was thus driving while under the influence of alcohol. reasonable doubt that the defendant was impaired to some degree by