2009-011, State of New Hampshire v. Wayne Villeneuve

The defendant, Wayne Villeneuve, was tried in the

brief and orally), for the defendant. Law Office of Leonard D. Harden, of Lancaster (Leonard D. Harden on the

general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2009-011 editorial errors in order that corrections may be made before the opinion goes Lancaster District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 p. 2 Hampshire.” the [Conforming Products List] is identical to the instrument used by New

Hampshire instrument did not affect its accuracy or precision, “the 5000 EN on

Transportation, who opined that, because the differences in the New letter from Arthur Flores, a former employee of the United States Department of and it is approved for use in New Hampshire. The State also introduced a

Intoxilyzer 5000EN; it does not need separate approval by government agencies

relevant purposes, the New Hampshire instrument is the same as the breath test, and the results revealed that he had a blood alcohol level of .15. Intoxilyzer 5000EN, the differences do not affect its accuracy. Therefore, for all driving under the influence. Subsequently, the defendant agreed to take a Safety, testified that although the New Hampshire instrument differs from the

Hampshire is the only state that retains a breath sample in this manner. the defendant performed field sobriety tests, Officer Hall arrested him for of the breath that’s supplied by a subject’] to the back of the device.” New Nancy Mobile, an expert employed by the New Hampshire Department of expandable, like a balloon which permits the machine to capture the last part

eyes were red and watery, and Officer Hall smelled the odor of alcohol. After should be recertified, as the differences could “potentially” affect its accuracy. The defendant responded, “[Y]eah, I’ve had a couple beers.” The defendant’s components, including “the ability to attach a . . . tox trap [‘a small defendant that he was being stopped for speeding and crossing the center line.

above, Workman opined that the New Hampshire instrument is not listed and Intoxilyzer 5000EN, the New Hampshire instrument has additional List in the Code of Federal Regulations, because of the differences described passed him. Officer Hall stopped the defendant, identified himself, and told the Although the Intoxilyzer 5000EN is listed in the Conforming Products

features require additional software, wiring, and circuits. or switch, not present on other versions. Workman testified that these added 27, 2010). As a result, the New Hampshire instrument has an extra solenoid, Opinion of the Justices (Breath Test Samples), 160 N.H. __, __ (decided April

This instrument is a modified version of the Intoxilyzer 5000EN. Unlike the lane, and Officer Hall moved to the right to avoid a collision as the defendant testified about the type of breath testing instrument used in New Hampshire. crossed over the center line, so that one of its headlights was in Officer Hall’s Platt, who testified about field sobriety tests, and Thomas Workman, who toward him. The defendant stipulated that he was speeding. His vehicle At trial, the defendant introduced evidence from two experts: Dr. Lance

Officer Blaine Hall of the Northumberland Police saw the defendant driving The record reveals the following. In the early morning of July 7, 2007, p. 3 Hampshire instrument was properly certified.

two times the electrical power to the solenoids.

State argues that the evidence supported the trial court’s ruling that the New

accomplished by splitting two solenoids . . . which, in turn, provides

Hampshire Administrative Rules, Saf-C 6302.01 and RSA 265-A:5, IV. The 3

shield on the back of the machine. This penetration might be

products for breath alcohol measurement devices as required by New Hampshire, a version of the Intoxilyzer 5000EN, is not on the list of conforming case. court’s ruling was clearly untenable or unreasonable to the prejudice of his

unsustainable exercise of discretion. designed may allow radio frequencies to penetrate the protective 5. The defense argues that the way the [New Hampshire] machine is preserve his arguments about the Flores letter for our review. is properly certified.” In its order, the trial court stated: New Hampshire uses is speculative, at best,” and that “the Intoxilyzer 5000 EN concluded that “the chance of inaccuracy of the breath test on the machine The defendant moved to exclude his breath test results. The trial court

results of his breath test because the breath testing device used in New Id.

(2005). To meet this standard, the defendant must demonstrate that the trial

We review the trial court’s decision on the admissibility of evidence for an

don’t have any objection to the letter.” Accordingly, the defendant did not court marked the Flores letter as an exhibit and defense counsel stated, “I the admission of the letter. We agree. Following Mobile’s testimony, the trial

Next, the defendant argues that the trial court erroneously admitted the

The State argues that the defendant expressly waived any objection to

must state explicitly the specific ground of objection. Ericson, 159 N.H. at 386. the appellate court. State v. Brum, 155 N.H. 408, 417 (2007). The objection opportunity to rule upon issues and correct errors before they are presented to Ericson, 159 N.H. 379, 386 (2009). Ordinarily, trial courts should have an specific objection is required to preserve an issue for appellate review. State v. The general rule in this jurisdiction is that a contemporaneous and

admission violated his Confrontation Clause rights. Flores letter because the State failed to provide it to him in discovery, and its The defendant first argues that the trial court erroneously admitted the

I. The Flores Letter cause an inaccurate test.”

p. 4 its own conclusion regarding the accuracy of the breath test results.

“there might be the possibility of an electronic and power problem which might preponderance of the evidence” that, as the defendant’s expert suggested, determined that the defendant had failed to “make even a showing by a

trial court was entitled to weigh the expert testimony and evidence and come to

The trial court concluded that the defendant “did not make even a showing by New Hampshire process was actually ‘checked and debugged.’” The court

Hampshire regulations.” . . .

discretion by admitting the results of the breath test. As the fact-finder, the

precision are concerned.” instrument used by New Hampshire so far as the accuracy and to demonstrate that accuracy is not [compromised]. . . . the accuracy are left to those states that desire to use those features

to determine the weight and credibility to be accorded the expert’s testimony”). Transportation’s perspective, does not render an inaccurate result because the v. Whittaker, 158 N.H. 762, 773 (2009) (stating that “it is up to the fact finder

demonstrates this. The process is now codified in the New

We cannot conclude that the trial court unsustainably exercised its

the 5000EN on the [Conforming Products List] . . . is identical to the

equipment placed on the List. Additional features which do not affect

the sample capture feature of the Intoxilyzer 5000 EN, from the Department of The trial court concluded that the Flores letter “conclusively states that

am sure that your laboratory has retained the data that (Brackets omitted.) analysis of the “captured” alcohol confirms the original analysis. I

not compromised by the addition of this sample feature capability, 12. Finally, Mr. Flores notes, “Since the accuracy of the instrument is Specifications were interested only in the basic accuracy of

checked and debugged so that [if] performed properly, the results of 11. Mr. Flores goes on to state, “The process in New Hampshire was

addressed in the NHTSA Model Specifications. The writers of the 10. . . . Mr. Flores states in his letter, “The ‘capture’ feature is not

. . . .

breath test. potential resulting radio frequencies, could result in a high or low 6. Defendant maintains that the extra power to the solenoids, and the p. 5 Device.’” The Conforming Products List lists the Intoxilyzer 5000EN.

Highway Traffic Safety Administration as an ‘Evidential Breath Measurement instrument “be identified on the ‘Conforming Products List’ by the National according to certain criteria listed in Saf-C 6302.01(b), including that the

requires that the commissioner of safety “approve the breath test instrument”

the accuracy of the New Hampshire machine, the trial court was free to

in accordance with procedures” established by other rules. Saf-C 6302.01(a) shall be offered for evidentiary purposes when performed by certified personnel approved instrument to determine the alcohol concentration of one’s breath Workman testified that, in his opinion, the differences could “potentially” affect

is intended to serve. 5 with the language of the regulation and with the purpose which the regulation we still must examine the agency’s interpretation to determine if it is consistent

safety.” Saf-C 6302.01(a) provides that “breath tests conducted on an affect its accuracy. The Flores letter supports Mobile’s testimony. Although

an agency’s interpretation of its regulations, our deference is not total, because

accordance with methods prescribed by the commissioner of the department of Mobile testified that the New Hampshire machine’s differences do not

important where that intent can be ascertained). While we accord deference to

to words used. before any administrative officer or court unless such test is performed in in the statute and where possible, we ascribe the plain and ordinary meanings authorized by RSA 265-A:4 shall be considered as evidence in any proceeding RSA 265-A:5, IV provides that “[n]o tests of blood, urine, or breath

their entirety and the administrative intent of the issuing authority is see Vector Mktg. Corp., 156 N.H. at 783 (we construe administrative rules in Defending Their Homes v. Lone Pine Hunter’s Club, 155 N.H. 486, 488 (2007); effectuate its overall purpose and avoid an absurd or unjust result. Residents 265-A:5, IV. When construing a statute, we first examine the language found 138 N.H. 298, 300 (1994). We construe all parts of a statute together to which the lawmakers did not see fit to include. Appeal of Astro Spectacular, Courts can neither ignore the plain language of the legislation nor add words

language is plain and unambiguous, we need not look beyond it for further ascribe the plain and ordinary meanings to the words used). When a statute’s N.H. 781, 783 (2008) (when interpreting agency rules, where possible, we administrative rules. Vector Mktg. Corp. v. N.H. Dep’t of Revenue Admin., 156 542 (2009). We apply the same principles of construction in interpreting

Appeal of Garrison Place Real Estate Inv. Trust, 159 N.H. 539,

instrument used to test his breath did not comply with Saf-C 6302.01 and RSA Moreover, we disagree with the defendant’s argument that the

additional solenoid could have caused an inaccuracy in his breath test results. a preponderance of the evidence as to” Workman’s conclusion that the required to produce documents it does not possess. p. 6 correctly found that it did not commit a discovery violation because it is not

the machine’s accuracy or precision.” The State counters that the trial court

Court (

machine prevented him “from allowing his expert to conduct an evaluation of

Hampshire Intoxilyzer 5000EN including schematics or manuals.” The Trial

and that the State’s failure to produce materials specific to the New Hampshire manuals provided were not specific to” the machine used to test his breath, unreasonable to the prejudice of his case. trial, he learned “that the schematics, electronic diagrams and various

Bornstein, J.) granted the defendant’s request “only to the extent that

and RSA 265-A:5, IV. Prior to trial, the defendant sought “access to any certified, New determining that the New Hampshire instrument complied with Saf-C 6302.01 478 (2003).

discretion was unsustainable, the defendant must show that it was clearly materials for the New Hampshire machine. Specifically, he alleges that, during Dodds, 159 N.H. 239, 248 (2009). To show that the trial court’s exercise of discovery violation absent an unsustainable exercise of discretion. State v. We will not reverse the trial court’s decision with respect to an alleged

conclude that the trial court unsustainably exercised its discretion by

K and listed machine were included on list of approved instruments, because differences between Option violation by failing to produce a service manual, schematic diagram and bill of Finally, the defendant argues that the State committed a discovery required by state law); III. Discovery Violation

breath-alcohol levels”). noting that they were promulgated “to ensure accurate measurements of breathalyzer model for purposes of accuracy and reliability). We cannot (rejecting defendant’s argument that modified version differed from listed

decision that BAC Datamaster Option K is an approved machine, although not

even though version of Intoxilyzer not listed on conforming products list as defendant. See Rabusitz, 145 P.3d at 862, 874 (breath test results admissible Other courts have rejected similar arguments to those advanced by the

(construing prior version of regulations governing breath-alcohol tests and N.W.2d 904, 905-06 (Wis. 1998); cf. Jordan v. State, 132 N.H. 34, 36 (1989) Reedy, 2006 WL 648861, at * 2 (Ohio Ct. App. 2006); State v. Busch, 5 p. 7 76 773; State v. Rabusitz, 145 P.3d 861, 862, 874 (Haw. Ct. App. 2006); State v. complies with RSA 265-A:5, IV and Saf-C 6302.01. See Whittaker, 158 N.H. at disregard his testimony and conclude that the New Hampshire instrument 7 possible. Hampshire, and that it had asked the manufacturer to provide as much as

this fact. there was no manual specific to the version of the Intoxilyzer used in New machine, Mobile stated that she had repeatedly informed defense counsel of

defense to delve into its ‘inaccuracy’ theory further.” manufacturer did not provide those materials.

for the defendant all materials that it had pertaining to the Intoxilyzer, that provided by the State in discovery were not specific to the New Hampshire BRODERICK, C.J., and DALIANIS, HICKS and CONBOY, JJ., concurred.

or recklessly failed to turn over any discovery that would have allowed the Affirmed. schematics and a bill of materials specific to the New Hampshire machine, the not within the control of the prosecutor or police department.”). State that its duty to disclose exculpatory material does not extend to records

See State v. Downs, 15 p. 7 7 N.H. 695, 698 (2008) (“We agree with the

We agree with the trial court. The State represented that it gave counsel defendant contends that he first learned during trial that the materials

they’d be able to get it.” The trial court ruled that the State had not “willingly used in New Hampshire. Although the State asked the manufacturer for faith effort in this case to get what [the defendant] asked for, I don’t think manufacturer, which was for “the general Intox 5000 EN,” not the instrument what I’ve just heard, because I don’t think that even if [the State] made a good including the only schematics and bill of materials provided by the The trial court concluded that it could not “dismiss or sanction . . . given

was no service manual specific to the New Hampshire machine. Although the

testified that the State produced all materials held by the State Laboratory, such documentation exists and is in the State’s possession.” At trial, Mobile