2014-0025, State of New Hampshire v. Alex Ducharme

convict him of DUI. We affirm. consider the “confusion doctrine”; and (4) found the evidence sufficient to evidence obtained after he had invoked his Miranda rights and f ailed to oc curred and, therefore, that the implied consent statute applied; (3) admitted cause to arrest him for DUI; (2) concluded that a valid arrest for DUI had Circuit Court (Stephen, J.) erred when it: (1) ruled that the police had probable (DUI). See RSA 265 - A:2 (Supp. 2012) (amended 2012). He argues that the following a bench trial, for driving under the influence of intoxicating liquor CONBOY, J. The defendant, Alex Ducharme, appeals his conviction,

and orally), for the defendant. Law Offices of Robert J. Moses, of Amherst (Robert J. Moses on the brief

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney

No. 2014 - 025 6 Circuit C ourt – Hillsborough District Division th

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 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, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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 2

re peated that he did not understand. asked the defendant what he did not understand and the defendant simply what had been read to him and the defendant said that he did not. The officer influence of alcohol or drugs.” The officer asked the defenda nt if he understood out of acts alleged to have been committed while you were driving under the first line of the ALS form states: “You have been arrested for an offense arising Suspension (ALS) form. See RSA p. 2 265 - A:4 (Supp. 2012) (amended 2012). The present. The officer then read to the defendant the Administrative License did not wish to spe ak with the officer or answer questions without a lawyer (1966). The defen dant made clear that he understood his rights and that he room and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 At the police station, the officer brought the defendant to the booking

into the parking lot. bouncer, who informed the officer that he had observed the defendant drive transported the defendant to the Hillsborough police station, he spoke with the been there before he placed the defendant in the cruiser. Before the officer after which he “detected a distinct odor of alcohol” in the cruiser that had not When he re turned to his cruiser, he arrested the defendant for simple assault, cruiser and went to separate the two individuals involved in the latest fight. “figure out exactly what was going on.” The officer left the defendant in the defendant and placed him in the back of the cruiser so that the officer could another fight broke out in the parking lot. The officer handcuffed the trouble with his balance.” While the officer was talking with the defendant, coming from [the defen dant’s] breath,” and that the defendant “was having “eyes were bloodshot and red.” He also noticed “a distinctive odor of alcohol Once they were at the cruiser, the officer noticed that the defendant’s

the defendant back to his cruiser. approached the men, and then, to separate him from the situation, escorted would back down,” the bouncer went to the officer for assistance. The officer testified that he could smell alcohol on the defendant. When “neither party defendant and the other man several times to “back down.” The bouncer side and then “got into an altercation with another” man. The bouncer told the parking lot and park. The defendant got out of the vehicle from the driver’s While he was outside, t he bouncer saw the defendant drive into the bar’s

one of the people involved in the altercation. the officer arrived, he first met with the bouncer and t hen made contact with an officer from the Antrim Police Department was dispatched to the bar. When the bar and then “spilled. . . into the parking lot.” The police were called and outside at around midnight to deal with an altercation that had originated in March 5, p. 2 2011, the bouncer at Redneck s Bar and Grill in Antrim was called The testimony at trial established the following sequence of events. On p. 3 3

The State disagreed, arguing that the defendant was effectively arrested for DUI contended that the officer did not have probable cause to arrest him for DUI. derived therefrom should be suppressed. Alternatively, the defendant for the officer to use the ALS form and, as a result, the form and any evidence that, because the implied consent statute did not apply to him, it was improper Subsequently, the defendant moved for reconsideration, maintaining

defendant’s o bjection. intoxicating liquor or controlled drugs. The trial court overruled the arising out of acts committed while he was driving under the influence of statute did not apply to him because he had not been arrested for an offense b een arrested only for simple assault and, therefore, that the implied consent results of the field sobriety tests and the breath test. He claimed that he had At trial, the defendant objected to the admission of the ALS form and the

blood alcohol level of 0.17. The defendant also took a breath test, and the results indicated that he had a He determined that the defendant failed the HGN and the walk - and - turn tests. walk - and - turn, the one leg stand, and the Romberg balance field sobriety tests. The officer then administered the horizontal gaze nystagmus (HGN), the

“stated to [the officer] that he was drunk.” and “agreed to the requested testing.” During this process, the defendant defendant time to think about it. The reafter, the defendant signed the for m as to whether to submit to the requested testing and that he gave the He stated that h e told the defendant that it was up to him to make the decision the defendant was “[h]esitating, he wasn’t sure what to do, how to proceed.” ALS form granting consent to the requested testing. The officer explained that understood. The officer testified that the defendant first refused to sign the and the defendant the n initialed next to each line indicating that he indicated that he did not understand. The officer “explained everything to him” reading each line whether he understood. Several times the defendant the remainder of the ALS form to the defendant line by line, asking him after he understood. The defendant stated that he did, after which the officer read The officer reread the first line to the defendant and asked him again if

intoxicated.” reading the ALS form, why he was under arrest . . . [f]or driving while that the purpose of th is explanation was to tell the defendant “why I was drove back, and that’s where we were at. . . that moment.” The officer testified statements stating that [the defendant] drove away from Rednecks and then defendant] assault another male.” He explained that he had “witness tense assault” and that “[w]hile taking that report [he] had witnessed [the the defendant “that [he] had been called . . . to Rednecks Bar & Grill for a past - The officer then “explained everything to [the defendant] again.” He told p. 4 4

by mathematical calculations in making this determination,” but instead “must or to make out a pri ma facie case.” Id. (quotation omitted). “We are not bound probabilities and not the amount of evidence required to sustain a conviction determining whether the police had probable cause, we review reasonable an offense.” State v. Maga, 166 N.H. 279, 286 (201 p. 4 4) (quotation omitted). “In reasonable caution and prudence in believing that the arrestee has comm itted has “knowledge and trustworthy information sufficient to warrant a person of the defendant for DUI. An officer has probable cause to arrest when he or she We begi n by addressing whether the officer had probable cause to arrest

as the results from the field sobriety test and the breath test. maintains, therefore, that the court should have excluded the ALS form as well without s uch an arrest, the implied consent statute did not apply. He that there was no evidence that a valid arrest for DUI occurred, and that that the officer had probable cause to arrest him for DUI. He also contends On appeal, t he defendant argues that the trial court erred by conc luding

I. Probable Cause and DUI Arrest

of the DUI charge. This appeal followed. counsel.” The trial court denied the defendant’s motion and found him guilty case that [the defendant] was confused about his right to remain silent or to the court were to apply the doctrin e, “[t]here is no objective evidence in this that New Hampshire has not adopted the “confusion doctrine,” but that even if be suppressed under the “confusion doctrine.” The State objected, asserting this distinction, t he results of the field sobriety tests and the breath test should purpose of ALS.” According to the defendant, because the officer did not clarify silent as to an assault case versus the absence of that right for the narrow cla rify and explain to the Defendant the distinction between his right to remain defendant’s invocation of the right to remai n silent “required that the officer further argued tha t the officer ’s administration of Miranda followed by the arguments that he was im properly arrested for driving under the influence. He The defendant again moved for reconsideration, reiterating his

DUI. there was sufficient probable cause to allow the officer to make an arrest for” Th us, th e co urt concluded that, “[u]nder this totality of the circumstances, from the bouncer was received that the D efendant d rove to the scene. . ..” an odor of alcohol, unsteadiness on feet, and bloodshot eyes. Further, a report because the officer “had observed indicia of impairment at the scene, including court further found that there w as probable cause for the def endant’s arrest arrested for DUI when the officer read him the first line of the ALS form. The The trial court agreed with the State and ruled that the defendant was

cause to do so existed at that time. when the officer read him the first line of the ALS form, and that probable p. 5 5

the defendant. probable cause to arrest the defendant for DUI bef ore he read the ALS form to making contact.” These facts, taken as a whole, provided the officer with “it was a continuous event, [the defendant] driving back and then [the officer] the prosecutor’s question a s to whether, based upon the bouncer’s statements, the defendant drive into the parking lot. The officer responded affirmatively to the defendant to the police station, the bouncer told him that he had observed before he p laced the defendant in the cruiser. Before the officer transported “detected a distinct odor of alcohol” in the cruiser that had not been there balance.” After the officer arrested the defendant for simple assault, he defendant’s] breath” and that the defendant “was having trouble with his and red.” He also noticed “a distinctive odor of alcoh ol coming from [the defendant to his cruiser, he observed that the defendant’s “eyes were bloodshot defendant had committed a DUI offense. When the officer first escorted the We conclude that the officer had sufficient evidence suggesting that the

286 - 87 (quotations and brackets omitted). reasonable and prudent people, not legal technicians, act.” Maga, 166 N.H. at concern for the factual and practical considerations of everyday life on which “mathematical calculations,” but instead “must approach the issue with a assessing whether an officer has probable cause, we are not bound by precisely how long he had been back at the bar. As explained above, in it necessary fo r the officer to know the exact time the defendant drove or operating vehicle and officer then smelled alcohol on driver’s breath). Nor was while intoxicated because witness informed officer that he had seen driver 1999) (concluding that officer had probable cause to arrest driver for driving defendant); McCabe v. Director of Revenue, 7 S.W.3d 12, 13 - 14 (Mo. Ct. App. witness’s identification of him as driver and trooper’s observations of probable cause to arrest defendant for driving while intoxicated based upon WL 187 p. 5 5904, at *5 (Minn. Ct. App. Ma y 12, 2014) (finding that trooper had probable cause to arrest him for DUI. See State v. Farah, No. A13 - 2017, 2014 necessary for the officer to have actually observed the defendant driving to have back at the bar bef ore the officer made contact with him. However, it was not whether and when the defendant had been driving or how long he had been The defendant argues that the officer had no knowledge regarding

(quotation omitted). contrary to the manifest weight of the evidence.” Maga, 1 p. 6 66 N.H. at 287 the evidence is viewed in the light most favorable to the State, the decisio n is will not overturn a trial court’s determination of probable cause unless, when the arrest was made. State v. Vandebogart, 139 N.H. 14 p. 5 5, 164 (1994). “We but rather as a whole, and from the arresting officer’s point of view at the time officer had probable cause, we do not view each item of evidence separately, act.” Id. at 286 - 87 (quotations and brackets omitted). In assessing whether an of everyday life on which reasonable a nd prudent people, not legal technicians, approach the issue with a concern for the factual and practical considerations 6

officer had probable cause to make warrantless arrest); State v. N elson, No. 04 the course of reading her rights he advised her she had been arrested” and arrest for driving under the influence effected by officer “at the station when in see also Appeal of Dungan, p. 6 681 P.2d 750, 753 (O kla. 1984) (finding appellant’s defendant that he was under arrest for DUI before reading statutory warning); potential charges other than DUI at time of initial arrest and did not tell for DUI when officer read statutory warning, even though officer mention ed two DUI statute and defendant’s “actual arrest” meant that defendant was arrested (holding that “coincidence of probable cause to arrest” defendant for violating arrest of the defendant for DUI. See Underwood, 661 S.E.2d at 532, 530 - 31 simple assault, the officer ’s reading of the first line of the ALS form constituted because the defendant was already in custody as a result of his arrest for because the officer had probab le cause to arrest the defendant for DUI, and in custody by virtue of his arrest for simple assault. We conclude that, forthcoming to answer for the commission of a crime.” Here, the defendant was an “arrest” as “the taking of a person into custody in order that he may be the ALS form to the defendant, to arrest him for DUI. RSA 594:1 (2001) defines As discussed above, the officer had probable cause, at the time he read

142 N.H. 705, 707 (1998). statute). W e review questions of law de novo. In re 1994 Chevrolet Cavalier, influence constituted a second arrest for a violation of driving under influence law to defendant who was under arrest for an offense other than drivin g under standard of review to determine whether officer’s reading of implied consent See State v. Underwood, p. 6 661 S.E.2d 529, 531 - 32 (Ga. 2008) (applying de novo of the first line of the ALS form effectuated an arrest for DUI as a matter of law. under arrest for simple assault. Thus, the issue is whether the officer ’s reading the officer read th e first line of the ALS form to him, the de fendant was already driving under the influence of alcohol or drugs.” It is undisputed that when for an offense arising out of acts alleged to have been committed while you were officer read him the first line of the ALS form stating: “You have been arrested The trial court found that the defendant was arrested for DUI when the

well as the results from the field sobriety test and the breath test. Accordingly, he contends that the court should have excluded the ALS form as simple assault, and, therefore, the implied con sent statute did not apply. arrested him for DUI. The defe ndant maintains that he w as arrested only for erroneously ruled that, by reading the first line of the ALS form, the officer vehicle while under the influence.” The defendant argues that the trial court commi tted while the person was driving or in actual physical control of a motor driver must “be arrested for an offense arising out of acts alleged to have been contends that, in order for the State to invoke the implied consent statute, a Hampshire Division of Motor Vehicles, 151 N.H. 315 (2004), the defendant our interpret ation of the implied consent statute in Saviano v. Director, New for DUI and, therefore, the implied consent statute did not apply. Relying upon Nonetheless, the defendant argues that he was never actually arrested p. 7 7

process t hat is “highly regulated by State law, and is presented in virtually the because instructing a suspect about the state’s implied consent law involves a ‘interrogation.’”); State v. Blouin, p. 7 716 A.2d 826, 829 - 30 (Vt. 1998). This is so o n a state’s implied consent law do not fall within [the] definition of Geasley, 619 N.E.2d 1086, 1089 - 90 (Ohio Ct. App. 1993) (“Police instructions the meaning of Miranda.” Id. at 274 (quot ation omitted); see also State v. whether the suspect will take a blood - alcohol test is not an interrogation within the context of an arrest for driving under the influence, “a police inquiry of Miranda rights. This distinction is immaterial. As we recognized in Goding, in submitting to testing after he had been advised of, and had invoked, his 128 N.H. at 269, while in this case, the defendant was quest ioned about alcohol test ing before he had been advised of his Miranda rights, see Goding, case, the defendant was questioned about submitting to breathalyzer and blood The defendant argues that God ing is distinguishable because, in that

496 - 9 p. 7 7 (1986). evidence in criminal trials.” Id. at 274; see also State v. Lescard, 128 N.H. 495, spoken in response to implied consent law questioning are admissible as Miranda warnings, and that “voluntary admissions, comments, or explanations consent law questioning is not “interrogation,” which must be preceded by should have been suppressed. Goding, 128 N.H. at 273. We held that implied Miranda admission s, give n in response to implied consent law questioning, In Goding, we addressed whether the defendant’ s post - arrest, pre -

despite the fact that the Defendant had invoked his right to counsel.” was appropriate for the officer to continue with the ALS and Field Sobriety tests interrogation for purposes of” Miranda. The court, therefore, concluded that “it ALS form and conducting breath, blood, urine or physical tests are not ruled that, pursuant to State v. Goding, 128 N.H. 26 p. 7 7 (1986), “a reading of the any evidence obtained after he in voked his Miranda rights. T he trial court The defendant next argues that the trial court erred by failing to exclude

II. Miranda and “The Confusion Doctrine”

statute applied in this case. that the trial court did not err in its determination that the implied consent consent form, he effectively arrested the defendant for DUI. We, therefore, hold this case, when the officer read the defendant the first line of the implied charge, he was also being arrested for DUI, we co nclude that, u nder the facts of clearly inform the defendant that, in addition to his arrest on the assault T hus, although the better practice would have been for the officer to

meet the arrest requirement” of state’s implied consent law). specifically advised [defendant] that he was under arrest” and “was sufficient to that phrase “‘you have been arrested’” on “Informing the Accused form 1546 - CR, 2004 WL 29 p. 8 84829, at *2 (Wis. Ct. App. Dec. 28, 2004) (concluding 8

67 So. 3d at 1056 - 57. State v. Leavitt, 527 A. 2d 403, 406 (N.J. 19 p. 8 87) (citing cases); see also Kurecka,

consequences of confusion and not be penalized for the refusal. the refusal is privileged, the motorist should not suffer the and then refuses to take the breath test in the mistaken belief that other (breath test refusal) no t according assistance of counsel — one warning (Miranda) according the assistance of counsel, the confused by the two warnings concerning assistance of counsel — [s]ome jurisdictions have held that when a motorist is

N.W.2d at 654. Thus, and a showing that the defendant actually was ‘confu sed.’” Reitter, 595 to the ‘confusion doctrine,’ however, is premised on a reading of Miranda rights taking a breath test” (quotation and brackets omitted)). “A defendant’s access licensee believes that he or she had the right to consult with counsel prior to will be excused if, due to a prior administration of the Miranda warnings, the that, under “confusion doctrine,” “a licensee’s refusal to submit to a breath test Kurecka v. State, 67 So. 3d 1052, 1056 (Fla. Dist. Ct. App. 2010) (explaining to invoke counsel before taking the test.” Reitter, 595 N.W.2d at 654; see also chemical test will be excused if the defendant believed he or she had the right of states”). “Under the ‘confusion doctrine,’ a defendant’s refusal to submit to a App. Oct. 1, 2014) (noting that “confusion doctrine” is “recognized in a minority State v. Colosimo, No. 13 - 1066, 2014 Iowa App. LEXIS 946, at *13 (Iowa Ct. consent laws.” State v. Reitter, 595 N.W.2d 646, 654 (Wis. 1999); see also interplay between Miranda rights and the lack of right to counsel under implied ‘confusion doctrine’ to situations in which a defendant might be misled by the not apply to implied consent proce dures. Some “jurisdictions apply the the defendant precisely why he was under arrest and that Miranda rights do d octrine,” and find that the officer induced confusion b y failing to explain to The defendant maintains, howe ver, that we should adopt the “confusion

responded by comment ing on his state of inebriation). information and wished to submit to test, notwithstanding that defendant and implied consent l aw and asked defendant whether he understood the officer provided defendant with relevant informati on about breathalyzer test U.S. 5 p. 8 82, 604 - 05 (1 p. 9 990) (finding no interrogation for Miranda purposes when d efendant had invoked his Miranda rights. See Pennsylvania v. Muniz, 496 officer to continue with the ALS and field sobriety t ests despite the fact that the Accordingly, the trial court did not err by finding that it was proper for the suspect has been advised of, and has invoked, his Miranda rights. does not become “interrogation” merely because the inquiry is made after the police inquiry abo ut whether a suspect will submit to testing in this context request to submit to fingerprinting or photography.” Id. (quotation omitted). A same words to all suspects.” Goding, 128 N.H. at 274. “It is similar to a police 9

62. Because a challenge to the sufficiency of the evidence raises a claim of must ex clude all reasonable conclusions except guilt. Belleville, 166 N.H. at to one or more of the elements of the charged offense is solely circumstantial, it provided they can be reasonably drawn therefrom. Id. When the evidence as proved and also inferences from facts found as a result of other inferences, doubt. Id. Further, t he trier of fact may draw reasonable inference s from facts evidence may be sufficient to support a finding of guilt beyond a reasonable not in isolation. State v. Kelley, 15 p. 9 9 N.H. 449, 455 (2009). Circumstantial evidence, we examine each evidentiary item in t he context of all the evidence, reasonable doubt. State v. Belleville, 166 N.H. 58, 61 (2014). In reviewing the the light most favorable to the State, could have found guilt beyond a trier of fact, viewing all o f the evidence and all reasonable inferences from it in sufficiency of the evidence, the defendant must demonstrate that no rational evidence sufficient to convict him of DUI. To prevail in his challenge to the Finally, the defendant argues that the trial court erred in finding the

III. Sufficiency of the Evidence

81 A.3d 7 p. 9 9 (Pa. 2013); see also Leavitt, 527 A.2d at 407 - 08. Dept. of Transp., 72 A.3d 294, 296 n.2 (Pa. Commw. Ct. 2013), appeal denied, deciding whether to submit to the requested ALS tests. See McKenna v. Com., form advising suspects that there is no right to speak with counsel prior to Department of Safety to consider whether to include a provision in the ALS setting.”). Therefore, we encourage the legislature and the New H ampshire state briefly that the right to counsel does not attach to the implied consent also Reitter, 595 N.W.2d at 655 (“[W]e see no harm in allowing the officer to statement does not apply in the ALS context. S ee Leavitt, 527 A.2d at 407; see because the right to consult with an attorney before giving any oral or written right to consult with counsel before deciding whether to consent to testing would be better fo r officers to simply advise suspect s that they do not have the the circumstances of this case, we note that to avoid potential confusion, i t Nonetheless, although we decline t o adopt the “confusion doctrine” under

all owing the State to admit the ALS form and the ensuing test results. his rights”). Accordingly, we conclude that the trial court did not err in defendant because defendant “was not confused with respect to the exercise of A.2d at 408 (concluding that “confusion doctrine” could not be asserted by that the D efendant specifically was confused” (quotation omitted)); Leavitt, 527 and upholding trial court’s ruling that there was “no evidence in the record Iowa App. LEXIS p. 9 946, at *18 - 21 (declining to recognize the “confusion doctrine” defendant’s invitation t o adopt the “confusion doctrine.” See Colosimo, 2014 Leavitt, 527 A.2d at 406; Reitter, 595 N.W.2d at 654. We, therefore, decline the “confusion doctrine” contemplates. See Kurecka, 67 So. 3d at p. 10 1056 - 57; entitlement to counsel before taking the tests. This is not the situation that the tests or the breath test. Nor does he allege that he was confused as to his Here, the defendant did not refuse to submit to either the field sobriety 10

the defendant drive into the parking lot to when the officer observed signs of that there was a continuous sequence of events from when the bouncer saw In light of this testimony, the trier of fact could reasonably have inferred

observed the defendant drive into the par king lot. transporting him to the police station, the bouncer told the officer that he had point after the officer arrested the defendant for simple assault, but prior to been there before he placed the defendant in the cruiser. Significantly, at some defendant, he “detected a d istinct odor of alcohol” in the cruiser that had not onto [the defendant] to keep him from falling.” After the office r arrested the officer and, “in doing so he was stumbling a bit,” and t he o fficer had to “hold balance.” The officer testified that the defendant was “pulling away from” the [the defendant’s] breath,” and that the defendant “was having trouble with his bloodshot and red.” He also noticed a “dis tinctive odor of alcohol coming from back to his cruiser. He testified that he noticed that the defendant ’s “eyes were defendant. He stated that he approached the men and brought the defendant The officer testified as to what happened after he encountered the

assistance. The bouncer testified that he could smell alcohol on the defendant. man would back down from the altercation, the bouncer went to the officer for altercation with another” man. Because neither th e defendant nor the other s aw the defendant e merge from the driver’s side of the vehicle and get “into an described the sequence of events that occurred thereafter. He stated that he bouncer testified that he observed the defendant drive into the parking lot and defendant drove a vehicle while under the influence of intoxicating liquor. The that a rational trier of fact could have found it sufficient to establish that the Viewing the evidence in the light most favorable to the State, we conclude

anythin g to drink after he returned to the bar. “the temporal framework” and did not know whether the defendant had time he was allegedly operating the vehicle” because the officer did not know he did so because the officer “had no knowledge of [his] state of sobriety at the a vehicle, there was insufficient evidence that he was unde r the influence when driving.” He further contends that, even if the State could prove that he drove drove a vehicle, in part, because the officer “had no personal knowledge of [his] The defendant argues that the evidence was insufficient to prove that he

that the defendant was impaired to any degree. Kelley, 159 N.H. at 452. intoxicating liquor,’” the State need ed only to prove beyond a reasonable doubt 265 - A:2, I. To prove that the defendant was “‘ under the i nfluence of upon a ny way” while he was “under the influence of intoxicating liquor.” RSA a reasonable doubt that the defendant drove or attempted to “drive a vehicle To convict the defendant of DUI, the State was required to prove beyond

517 (2014). legal error, our standard of review is de novo. State v. Collyns, 166 N.H. 514, p. 11 11

DALIANIS, C.J.