2010-166, Opinion of the Justices (Eliminating Requirement for Additional Breath Test Samples)

constitution or the New Hampshire constitution?" "(2) Does HB 1146 violate any other provisions of the United States

States constitution or the New Hampshire constitution? "(1) Does HB 1146 violate the due process clause of either the United

their opinion on the following questions of law: "That the Justices of the Supreme Court be respectfully requested to give

"Resolved by the House of Representatives:

of HB 1146; now, therefore, be it "Whereas, certain questions have arisen concerning the constitutionality

the House; and "Whereas, HB 1146 has been introduced and is presently pending before

own independent analysis; and taken and the captured sample or sample be given to the suspect for his or her a DWI suspect be sufficient to allow an additional test for each breath sample "Whereas, HB 1146 eliminates the requirement that samples of breath of

and eliminating requirements for additional breath tests for blood alcohol content; "Whereas, there is pending in the House, House Bill 1146, 'An Act

15, 2010: resolution on March 11, 2010, and filed it with the supreme court on March The New Hampshire House of Representatives adopted the following

(Eliminating Requirement for Additional Breath Test Samples)

No. 2010-166 Request of the House

any other provisions" of the Federal or State Constitution. Historically, we State Constitution, and second, whether enactment of HB 1146 would "violate enactment of HB 1146 would violate the Due Process Clause of the Federal or We have been asked to opine upon two questions. First, whether

requirements of RSA p. 2 265-A:7 and RSA 265-A:8 unchanged. arrange for an alternative chemical test." HB 1146 would leave the remaining but would mandate that the person "be given a reasonable opportunity to that a second sample of the arrested person's breath be collected or preserved, Additionally, as amended by HB 1146, RSA 265-A:7, II would no longer require her own choosing, instead of the right to have "similar test or tests" conducted. person the right to have additional blood or urine tests by a person of his or As amended by HB 1146, RSA 265-A:8, I(a) would give the arrested

enforcement's direction is inadmissible. RSA p. 2 265-A:8, III. prerequisites to tests set forth in RSA 265-A:8, the test administered at law his or her own choosing." If law enforcement fails to comply with the be informed of his or her right to "a similar test or tests made by a person of additional test" to be conducted. RSA 265-A:8, I(a) mandates that the person person's breath, the sample must be "sufficient to allow an equivalent RSA 265-A:7, I. Under RSA 265-A:7, II, when the police capture the arrested made available to the [arrested person] or his or her counsel upon request." quantity of said sample sufficient for another test, which quantity shall be conducted. Additionally, the testing laboratory must retain for thirty days "a the police must extract a sufficient quantity of blood to allow two tests to be the purpose of performing a chemical test to determine blood alcohol content, of blood from a person arrested for driving under the influence of alcohol for alcohol testing. Pursuant to RSA 265-A:7, I, when the police extract a sample relating to the implied consent of motor vehicle drivers to submit to blood preserved. RSA 265-A:4-:16 (Supp. 2009) comprise the statutory scheme of breath taken pursuant to RSA 265-A:4 (Supp. 2009) be collected or RSA 265-A:8 (Supp. 2009) to eliminate the requirement that a second sample House Bill (HB) 1146 proposes to amend RSA 265-A:7 (Supp. 2009) and

your resolution. conclusions, return the following separate replies to the questions presented in The undersigned justices of the Supreme Court, reaching differing

To the Honorable House of Representatives: p. 3 3

statute required that only blood and urine samples "be of sufficient quantity to similar test or tests made by any person of his own choosing"; however, the (1982) (repealed 2006) applied had the right "at his own expense to have a RSA 265:86 then in effect provided that any person to whom RSA 265:84 second breath sample. See RSA 265:86 (1982) (repealed 2006). Specifically, second blood sample, but did not require the State to take and preserve a was decided, the statutory scheme required the State to take and preserve a constitutional concerns that the Cornelius majority identified. When Cornelius which existed when Cornelius was decided, and, therefore, raises the same The statutory scheme, as amended by HB 1146, would be similar to that

process. Id. at 929- p. 3 30 (Batchelder, J., and King, C.J., dissenting). resulted in a process that was fundamentally unfair and violative of due do this "undermine|d] the integrity of the fact-finding process" and, therefore, at 929 (Batchelder, J., and King, C.J., dissenting). The ability of the police to independent analysis by the defendants [were] available." Cornelius, 122 N.H. control of the prosecution despite the fact that other courses permitting could choose the "evidentiary technique that [was] solely and completely in Martin, 125 N.H. 672, 676 (1984). By choosing the breath test, the police Justices, 131 N.H. at 592 (opinion of Souter and Thayer, JJ.); see State v. discretion in selecting the type of test to be administered." Opinion of the able to control a defendant's access to a second sample through their unbridled majority's ruling "was that due process was violated because the police were take and preserve a second breath sample. The primary rationale for the choose to administer a breath test, it is unconstitutional for the State not to court (King, C.J., and Batchelder and Douglas, JJ.) ruled that when the police In State v. Cornelius, 122 N.H. 925, 928-31 (1982), a majority of the

489. 1 p. 3 31 N.H. 583, 596 (1989) (opinion of Johnson, J.); see Trombetta, 467 U.S. at apparent and comparable evidence is unavailable." Opinion of the Justices, preserve evidence at least in those circumstances where its exculpatory value is (1984). Towards this end, due process "imposes a duty on the State to present a complete defense." California v. Trombetta, 467 U.S. 479, 485 requires] that criminal defendants be afforded a meaningful opportunity to 238 (2004); see N.H. CONST. pt. I, art. 15. "IT)his standard of fairness ... look to the principles of fundamental fairness. State v. Hearns, 151 N.H. 226, assessing a defendant's due process claim under the State Constitution, we opinions only for guidance. See State v. Ball, 124 N.H. 226, 231-33 (1983). In We first address this question under the State Constitution, citing federal

We turn, therefore, to the first question. question. See Opinion of the Justices (Weirs Beach), 1 p. 3 3 p. 4 4 N.H. 711, 717 (1991). keeping with that practice, we respectfully decline to answer the second have declined to answer general inquiries on constitutional infirmity and, in 4

breath samples), review denied, 868 P.2d 318 (Ariz. 199 p. 4 4). process nor fundamental fairness required the State to provide defendants with accuracy of the model used by the State to test breath samples, neither due 400, 404-05 (Ariz. Ct. App. 1993) (holding that because of the reliability and is no longer required by due process. See Moss v. Superior Court, 857 P.2d capture and preservation of a suspect's breath sample for independent testing technologies. For all of these reasons, the State contends that requiring the such as models that test each of a subject's breath samples with two different prevented New Hampshire "from staying current with emerging technology," The State also asserts that the second breath sample requirement has

samples. sample, and only one company makes the silica gel tubes used for capturing manufacturer makes the instrument that captures and preserves a breath sample. Because only one state requires this, according to the State, only one Hampshire became the only state that requires preservation of a second breath operators. Moreover, the State argues that after Cornelius was decided, New used to capture breath samples, as well as rules pertaining to instrument rules to ensure the "continued accuracy and reliability" of the technology now Additionally, the State observes, the department of safety has promulgated new

process. in protecting a [driving while intoxicated] defendant's right to due instrument itself make having the additional sample superfluous reported value. The replicate testing and built-in safeguards in the accuracy criteria are met, the instrument will not provide a external tests of the instrument itself. Unless all of the internal instrument (called "replicate testing"), as well as internal and involves the analysis of two separate breath samples by the testing availability of separate breath samples, the current procedure Court previously addressed the issue of due process and the [U]nlike the breath analyses that were being performed when this

to measure blood alcohol content. The State contends: Specifically, the State notes that the State now uses much improved technology Northeast Generation Servs. Co., 156 N.H. 656, 660 (2008) (quotation omitted). have robbed the old rule of significant application or justification." Alonzi v. was decided, "facts have so changed, or come to be seen so differently, as to The State argues that Cornelius should be overruled because, since it

of the arrested person's breath be collected or preserved. person of his or her own choosing and no longer requires that a second sample gives the arrested person the right to have "additional blood or urine tests" by a test for thirty days. Similarly, the statutory scheme as amended by HB 11 p. 4 46 allow 2 tests" and that the testing laboratory keep such samples for another p. 5 5

Stat. Ann. tit. 23, §S 1203 (Supp. 2009), 1203a (2007) (requiring law independent testing of his blood or urine is merely illusory. But see Vermont the current statutory scheme, we fear that the right of a suspect to have timely and Batchelder, J.). HB 1146 does nothing to alleviate these concerns. Given second test, no matter what time of day or night." Id. (opinion of Brock, C.J., locate an available, licensed technician capable of promptly performing a C.J., and Batchelder, J.). "While in police custody, the suspect [has] ... to difficulties" in obtaining an independent test. Id. at p. 5 587 (opinion of Brock, the Justices, two justices observed that suspects "face numerous practical of HB 1146. See id. (opinion of Brock, C.J., and Batchelder, J.). In Opinion of an independent test of one's blood or urine diminishes the unconstitutionality urine taken for independent testing." We are not persuaded that the right to arrestee be given a reasonable opportunity to have a test of his or her blood or the captured sample, ... New Hampshire law would still require that an The State further contends that "even with the proposed elimination of

same constitutional infirmities as the scheme at issue in Cornelius. believe that the statutory scheme, as amended by HB 1146, suffers from the N.H. at p. 5 588 (opinion of Brock, C.J., and Batchelder, J.). Accordingly, we and renders that process fundamentally unfair. Opinion of the Justices, 131 require a second sample undermine[s] the integrity of the fact-finding process," "It]he State's discretion in choosing the only test method which [does] not 122 N.H. at 929 (Batchelder, J., and King, C.J., dissenting). As in Cornelius, choose which of the three bodily substances will be examined. See Cornelius, the scheme at issue in Cornelius, vests the police with the sole discretion to is unreasonable. Further, the statutory scheme, as amended by HB 1146, like preserving a second breath sample. The State has not contended that the cost As when Cornelius was issued, the technology still exists for taking and

reasons are as compelling now as they were when Cornelius was decided. tests." Id. at p. 5 587-88 (opinion of Brock, C.J., and Batchelder, J.). These samples of blood or urine when police chose to administer either of those control despite the statute's requirement that the State preserve second ..., could opt for the only evidentiary technique solely and completely in its reasonable," and second, "the prosecution, by choosing to take a breath sample First, "the technology existed for taking such a sample and the cost of it was of the Justices, 131 N.H. at 587 (opinion of Brock, C.J., and Batchelder, J.). statutory requirement of preserving a second blood or urine sample." Opinion due process requires preservation of a second sample of breath in light of the omitted). "The ultimate Cornelius holding advanced two primary reasons why significant application or justification." Alonzi, 15 p. 6 6 N.H. at 660 (quotation administrative oversight of the breath testing process have robbed Cornelius "of We are not persuaded that either technological advances or increased 6

pertains to the Federal Constitution and question two. State Constitution and respectfully decline to answer question one as it We therefore answer question one in the affirmative as it pertains to the

the Due Process Clause of the State Constitution. reasoning of the United States Supreme Court in Trombetta when interpreting Clause of the Federal Constitution. We decline, however, to adopt the upon this precedent, likely HB 114 p. 6 6 would pass muster under the Due Process statute that did not require that a second breath sample be preserved. Based Court in Trombetta, 467 U.S. at 488-91, upheld the constitutionality of a Federal Constitution. We observe, however, that the United States Supreme we need not address in detail whether it violates the Due Process Clause of the Because we find HB 1146 unconstitutional under the State Constitution,

State Constitution. second breath sample be preserved, violates the Due Process Clause of the therefore, we conclude HB 114 p. 6 6, which would eliminate the requirement that a (opinion of Brock, C.J., and Batchelder, J.). For all of the above reasons, samples of breath, blood, and urine." Opinion of the Justices, 131 N.H. at 588 employment of the technology currently in place which preserves second Thus, "[wle are of the opinion that the dictates of basic fairness require the conclude that the proposed breath testing is substantially without risk of error. apparent absence of realistic access to additional testing, we are reluctant to legislative findings have been rendered in that regard. Moreover, in light of the need to capture and preserve a second breath sample, we note that no While we recognize that technological advances may well obviate the

cost of blood draw). agency to maintain sample, and allowing medical facilities to be reimbursed for enforcement to make arrangements for independent blood draw and state p. 7 7

suspect's breath for independent analysis. See Baca v. Smith, 604 P.2d 61 p. 7 7, like New Hampshire, used to require the capture and preservation of a In reaching this conclusion, we find Arizona law instructive. Arizona,

law. See id. independent testing. Accordingly, we believe that Cornelius is no longer good longer requires the capture and preservation of a suspect's breath sample for technological advances, the Due Process Clause of the State Constitution no (2008) (quotation omitted). We agree with the State that given these justification." Alonzi v. Northeast Generation Servs. Co., 156 N.H. 656, 660 technological advances have robbed Cornelius "of significant application or Unlike our colleagues, however, we are persuaded by the State's argument that raises the same constitutional concerns as the majority in that case identified. the court decided State v. Cornelius, 122 N.H. 925 (1982), and, therefore, scheme, as amended by HB 1146, would be similar to that which existed when We agree with our colleagues, for the reasons they propound, that the statutory federal opinions for guidance. See State v. Ball, 124 N.H. 226, 231-33 (1982). We begin by addressing question (1) under the State Constitution, citing

N.H. p. 7 711, 717 (1991). decline to answer question (2). See Opinion of the Justices (Weir Beach), 134 answer question (1) in the negative. Like our colleagues, we respectfully Clause of the State or Federal Constitution. For the reasons that follow, we Question (1) asks whether HB 1146 would violate the Due Process

breath be collected or preserved. to HB 1146, the law will no longer require that a second sample of the person's "reasonable opportunity to arrange for an alternative chemical test." Pursuant urine tests" conducted by a person of his or her own choosing and the under the influence would have the right only to have "additional blood or have a "similar test" conducted. Under HB 1146, a person arrested for driving eliminate the requirement that the person be informed of his or her right to an equivalent additional test to be conducted. HB 1146 also proposes to to eliminate the requirement that the breath sample be sufficient to allow for of his or her own choosing," RSA 265-A:8, I(a). House Bill (HB) 1146 proposes must be informed of his or her right to "a similar test or tests made by a person additional test" to be conducted, RSA 265-A: p. 7 7, II (Supp. 2009), and the person for blood alcohol content, the sample must be "sufficient to allow an equivalent of a person arrested for driving under the influence for the purpose of testing it Under the current statutory scheme, when the police capture the breath

requirement that a second breath sample be captured or preserved, does not fairness. Accordingly, we conclude that HB 1146, which eliminates the breath samples are no longer required by due process and fundamental technology used to analyze the blood alcohol content of breath, secondary to the legislature, that given the accuracy and reliability of the current Like the Moss court, we too believe, based upon the evidence submitted

(quotation omitted); see Trombetta, 467 U.S. at 4 p. 8 85. defense," and are no longer required by due process. Moss, 857 P.2d at 405 samples "no longer add anything meaningful to the opportunity to present a given the accuracy and reliability of the Intoxilyzer 5000, secondary breath Id.; see California v. Trombetta, 467 U.S. 479, 489 (1984). The court ruled that that it was extremely unlikely that preserved samples would be exculpatory. of the Intoxilyzer 5000 and the replicate testing procedures, the court opined silica gel sample or secondary sample." Id. Given the sophisticated technology even "more accurate than the independent test methods used to analyze the accurate and reliable testing method with built-in safeguards." Id. at 405. It is blood alcohol content of a suspect's breath, "[t)he Intoxilyzer 5000 is a very in inverse proportion." Id. at 404. Unlike prior instruments for testing the sample as the unique means of impeaching test results correspondingly wanes Intoxilyzer 5000 used in Dean ... - the demonstrable value of an extra breath reliability - from ... the GCI Mark IV Intoximeter used in Baca to the testing equipment used increases in sophistication and, concomitantly, in 1994). The Moss court observed that "[a]s the technological development of the P.2d 400, 404-05 (Ariz. Ct. App. 1993), review denied, 868 P.2d 318 (Ariz. to capture and preserve a second breath sample. Moss v. Superior Court, 857 Hampshire, due process and fundamental fairness no longer required the state an Intoxilyzer 5000, which is the predecessor to the model used in New Appeals ruled that because of the reliability and accuracy of replicate testing by In 1993, in response to a statutory amendment, the Arizona Court of

7 p. 8 89 P.2d 180, 184 (Ariz. 1990). state expense with a preserved blood sample, State ex rel. Dean v. City Court, between a replicate breath test with no preserved sample and a blood test at and that no second sample is required when the suspect is offered a choice disapproved of on other grounds by State v. Velasco, 799 P.2d 821 (Ariz. 1990), Harrison, 755 P.2d 1172, 1174 (Ariz. Ct. App.), review denied (Ariz. 1988), and satisfied as long as the second sample is "reasonably reliable," State V. is destroyed, later Arizona court decisions have ruled that due process is required the state to take and preserve a second sample when the test sample Baca, 604 P.2d at 620, the Arizona Supreme Court ruled that due process 104-05 (Ariz. Ct. App. 1999) (citing cases), review denied (Ariz. 2000). While in have modified due process requirements. Mack v. Cruikshank, 2 P.3d 100, 620 (Ariz. 1979). As breath-testing technology has advanced, Arizona courts questions presented. p. 9 Hampshire House of Representatives, in support of negative answers to the on behalf of the Committee on Criminal Justice and Public Safety of the New Representative Stephen J. Shurtleff, of Penacook, filed a memorandum

Program, in support of affirmative answers to the questions presented. filed a memorandum on behalf of the New Hampshire Appellate Defender David M. Rothstein, acting chief appellate defender, of Concord, & a.,

answers to the questions presented. Hampshire Association of Criminal Defense Lawyers in support of affirmative (Mark Stevens on the memorandum), filed a memorandum on behalf of the New (John Durkin on the memorandum), and Law Office of Mark Stevens, of Salem memorandum), and Burns, Bryant, Cox, Rockefeller & Durkin, P.A., of Dover Lothstein Law Office, PLLC, of Concord (Theodore Lothstein on the

State in support of negative answers to the questions presented. attorney general, on the memorandum), filed a memorandum on behalf of the Michael A. Delaney, attorney general (Diana E. Fenton, assistant

result under the Federal Constitution. See Trombetta, 467 U.S. at 488-91. violate the Due Process Clause of the State Constitution. We reach the same