2011-732, State of New Hampshire v. Alan Lathrop

The defendant, Alan Lathrop, appeals his conviction for

brief and orally), for the defendant. ___________________________ Law Office of Joshua L. Gordon on the THE SUPREME COURT OF NEW HAMPSHIRE

brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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

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 The interpretation of a statute is a question of law, which we decide de

See

Alderberry Lane is “open for public use” and, therefore, a “way.”

proof that Alderberry Lane is a “way” as defined in RSA 259:125 (Supp. 2012). Before trial, the defendant presented notice of his demand for formal

and maintained way open for public use.” The sole issue on appeal is whether RSA 259:125, II defines “way,” in pertinent part, as “any privately owned

influence of intoxicating liquor.”

owned, no gates or bars prevent entrance to the community.

a 2000 Mercedes Benz 4-door, upon a way, Alderberry Lane, while under the to the cruiser. As a result, the defendant was charged with “driv[ing] a vehicle, against trespass and available for travel only to residents, guests, and specific removed from his vehicle, he could not walk on his own and had to be carried

statutory scheme. State v. Brooks

GUESTS ONLY.” Although these signs indicate that Wildwood is privately- 2 nearby reads: “STOP[.] DO NOT ENTER[.] PRIVATE ROAD[.] MEMBERS & as: “Wildwood On Winnipesaukee[.] A Private Community.” In addition, a sign

argues that Alderberry Lane is not “open for public use” because it is posted slurred, his eyes were bloodshot, his face was flushed, and, after being

in enacting them and in light of the policy sought to be advanced by the entire

legislature as expressed in the words of a statute considered as a whole. Id

Moultonborough. A large sign posted at the entrance identifies the community

Focusing upon the private nature of the community, the defendant defendant’s breath smelled strongly of alcohol, his speech was extremely to elicit a response from the defendant. When he did so, he observed that the, 164 N.H. at ___. were dispatched to the scene. One of the officers approached the vehicle to try 108, 128 (2012). Our goal is to apply statutes in light of the legislature’s intent plain and ordinary meanings to the words used. State v. Moussa, 164 N.H. We first examine the language of the statute, and, when possible, ascribe the

matters of statutory interpretation, we are the final arbiter of the intent of the novo. State v. Brooks, 164 N.H. ___, ___ (decided October 30, 2012). In Alderberry Lane is in a subdivision on Lake Winnipesaukee in

appeal followed.

the couple called 911. Emergency responders and the Moultonborough police

“way” for purposes of the DWI statute and found him guilty of DWI. This Dist. Div. R. 1.22. The trial court determined that Alderberry Lane is a

open and wheels spinning. Because the driver appeared to be unconscious, A couple visiting family on the street discovered the car with its door

driveway and went off the road, over a concrete barrier, and into a utility box. and “a few drinks” at a Chinese restaurant. He failed to make the turn into his definition of “way” in RSA 259:125, II is specifically limited to four statutes –

p. 3 adversely affect areas of law outside of the DWI statute. The application of the

We reject the defendant’s contention that our decision today will

“way.”

Id

Accordingly, we uphold the trial court’s determination that Alderberry Lane is a

governed as to permit ingress, egress, or passage” and, is, therefore, “open.” definition of “open,” the State contends that the road is “so arranged or physical impediment to enter the road and travel on it. Pointing to a dictionary

that is used by residents, guests, and select invitees is a DWI-free zone. construe the statute to provide that a private road in a lakeside community which the public has access. It would be contrary to legislative intent to

language exists, we review legislative history to aid our analysis.” Duquette v. intended to correct or remedy. Appeal of Coastal Materials Corp. We construe statutes to address the evil or mischief that the legislature

open for public use. It asserts that the road is “open” because there is no N.H.H.R. Jour.

comprehensive changes to the DWI law. House Judiciary Comm. H’rg on HB

103 (1987). Public safety requires that DWI statutes apply to any property to

may not be authorized to do so. legislation, private roads in lake developments were specifically referenced. of the public have the right to access the road but, rather, whether the road is Hence members of the public may in fact drive on the road, even though they 110 (1981). In the hearings concerning the proposed “private ways among the areas upon which persons may be convicted of DWI.” The State counters, however, that the question is not whether members See 543. One of these changes was to expand the definition of “way” to include 354 (March 4, 1981) (reprinted in State’s Appendix at 12); see Laws 1981, ch.

in an effort to close various “loopholes” and “get tough on DWI,” made Warden, N.H. State Prison, 154 N.H. 737, 740 (2007). In 1981, the legislature,

Although signage indicates that the road is private, there is no barrier to entry. Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. 673, 677 (2011). invitees are permitted to use the road, it is not “open.” reasonable in the context of this case and, therefore, the statute is ambiguous. We conclude that both proffered interpretations of the statute are

special status, identification, or permit for entry or participation.” Webster’s.

maintains, because only members, guests, and a loosely defined category of Third New International Dictionary 1579 (unabridged ed. 2002). Here, he

emergency vehicles. As the defendant suggests, “open” can mean “requiring no invitees, such as delivery persons, municipal snow plow drivers, and p. 4 4

A f f i r m e d

areas of the law is, therefore, unsupportable.

2012)(Aggravated Driving While Intoxicated). The hypothetical effect on other Operating With Excess Alcohol Concentration); and RSA 265-A:3 (Supp. 2012)(Driving or Operating Under Influence of Drugs or Liquor; Driving or

HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

(Supp. 2012)(Reckless Driving; Minimum Penalty); RSA 265-A:2, I (Supp. RSA 265:71, IV (Supp. 2012)(Additional Parking Regulations); RSA 265:79