2016-0293, The State of New Hampshire v. James Bazinet

arrived there unconscious. We affirm. testing done by the State on a blood draw sample taken by the hospital after he the Superior Court (Colburn, J.) denying his motions to suppress the results of causing a fatal collision. See RSA 630:3, II (2016). He appeals the rulings of negligent homicide for driving a motor vehicle while he was intoxicated and HICKS, J. The defendant, James Bazinet, was convicted by a jury of

brief and orally, for the defendant. Christopher M. Johnson, c hief appellate d efender, of Concord, on the

for the State. a ttorney, on the brief, and Sean R. Locke, a ssistant attorney g eneral, orally), Gordon J. MacDonald, attorney general (Nicole E.A. Thorspecken,

No. 2016 - 0293 Hillsborough - southern judicial district

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

defendant implicitly consented to medical treatment. The court further emergency exception to consent in the civil context, the court found that the for blood alcohol content without a warrant. Citing a case discussing the blood draw sample, and that the State acted lawfully in obtaining and testing it defendant did not have a reasonable expe ctation of privacy in the hospital The trial court denied the defendant’s motions. The court ruled that the

hospital blood draw sample by the State. draw sample by the State; and (3) the results of the DNA test performed on the the results of the blood alcohol content test performed on the hospital blood United States Constitution to suppress: (1) the hospital blood draw sample; ( p. 2 2) Hampshire Constitution and the Fourth and Fourteenth Amendments to the relevant here, the defen dant relied upon Part I, Article 19 of the New Prior to trial, the defendant filed several motions to suppress. As

deoxyribonucleic acid (DNA) test on the blood. sign the warrant. The State then ran a blood alcohol content and police were already in lawful p ossession of the blood; thus, the judge did not circuit court judge advised Trefry that he did not need a warrant because the Trefry of the Nashua Police Department sought a warrant to test the blood. A went to the hospital and co llected four of the blood tubes. Thereafter, Officer ( p. 2 2017). Later that day, Sergeant Mederos of the Nashua Police Department all hospital blood or urine s amples taken from the defendant. See RSA 329:26 Department delivered a letter to SNHMC requesting, pursuant to RSA 329:26, Early the next morning, Detective MacGregor of the Nash ua Police

reveal internal bleeding or show deficient electrolyte levels. patients upon their arrival. The phlebotomist testified that the blood tests ca n routine medical pra ctice to immediately obtain blood samples from trauma hospital blood draw sample). According to the phlebotomist, it is the hospital’s blood, which were sent to the hospital’s internal lab for testing (hereinafter, injur ies. After his arrival, a phlebotomist drew five tubes of the defendant’s Hampshire Medical Center (SNHMC). He arrived unconscious and with critical The defendant was taken to the emergency room at Southern New

side of the center console containing liquid that smelled like alcohol. front windshield. Berry also discover ed a thermos - type cup in the passenger hairs, consistent with the defendant’s hair color, embedded in the glass of the been wearing a seatbelt at the time of the crash. He saw short grayish - brown examined the vehicl e and noticed that neither the passenger nor the driver had crash, Officer Berry of the Nashua Police Department arrived at the scene. He vehicle into a tree in Nashua. His female passenger died. Shortly after the approximately 11:00 p.m. on December 1, p. 2 2012, the defendant crashed his defendant’s motions to suppress, or are otherwise undisput ed. At The following facts are drawn from the trial court’s orders denying the p. 3 3

Evidence obtained in violation of a defendant’s rights under Part I, Article 19 his houses, his papers, and all his possessions.” N.H. CONST. pt. I, art. 19. a right to be secure from all unrea sonable searches and seizures of his person, Part I, Article 19 of our State Constitution provides: “Every subject hath

DNA done by the S tate should have been suppressed. sample and the subsequent testing on the sample for blood alcoh ol content and he consented to the hospital blood draw sample, the hosp ital blood draw read the defendant’s argument as being that, because it was error to find that We begin by addressing the defendant’s argument regarding consent. We

Ball, 124 N.H. 226, 2 p. 3 31 - 33 (1983). State Constitution, and cite federal opinions for guidance only. See State v. hospital blood draw sample. We first address the defendant’s claims under the not maintain an expectation of privacy in his DNA contained within the results, the defendant argues that the trial court erred by finding that he did find that he implicitly consented to the hospital blood draw. As to the DNA erred by relying upon the emergency exception to the requirement of consent to on the hospital blood draw sample, the defendant argues that the trial court With respect to both the DNA and the blood alcohol content tests the State ran and the Fourth and Fourteenth Amendments to the United States Constitution. violated his rights under Part I, Article 19 of the New Hampshire Constitution the results of the blood alcohol content and DNA tests performed by the S tate On appeal, the defendant argues that the trial court’s failure to suppress

court’s lega l conclusions de novo. Id. at 295. clearly erroneous. State v. Davis, 161 N.H. 292, 294 - 95 (2010). We review the the trial court’s factual findings unless they lack support in the record or are When reviewing a trial court’s rulings on a motion to suppress, we accept

fol lowed. The jury convicted the defendant of negligent homicide. This appeal

hospital blood draw sample. results of the defendant’s blood alcohol content test it performed on the i mprint on the driver’s side of the windshield. The State further presented the firefighters testified to observing hair that “[s] eemed to be from the male” in an pointed toward the driver’s side of the vehicle. In addition, one of the who, upon arriving at the scene of the crash, observed the defendant’s feet the blood draw sample. The State also offered testimony from two firefighters obtained from the blood on the windshield matched the defendant’s DNA from Hampshire Division of State Police forensic science laboratory that the DNA At trial, the State presented testimony by a criminalist in the New

when the police later tested the defendant’s blood for DNA.” concluded that “no ‘search’ occurred within the meaning of our constitutions p. 4 4

of a patient, where those results are requested by law enforcement for law results obtained and recorded by a hospital as part of its consensual treatment expectation of privacy under the Fourth Amendment “in blood alcohol test reasoning of courts in those jurisdictions that do not recognize a reasonable We looked to other jurisdictions for guidance and found persuasive the obtained by the hospital and given to the State pursuant to RSA 329:26. Id. had a reasonable expectation of privacy in his bloo d alcohol content test result the defendant’s blood. Id. at 295. The issue, t hen, was whether the defendant medical purposes, there was no state involvement in the drawing or testing of We determined that b ecause the blood was drawn by the hospital for

content test run by the hospital. Id. sought and obtained, pursuant to RSA 329:26, the result of the blood alcohol charged with driving under the influence. Id. Without a warrant, the p olice alcohol concentration. Id. After leaving the hospital, the defendant was treatment, the hospital drew his blood and tested it to determine his blood at 29 p. 4 4. The defendant refused. Id. How ever, as part of the defendant’s Implied Consent Statute, RSA 265 - A:4 (Supp. 2010) (amended 2012, 2017). Id. hospital and asked the defendant to submit to alcohol testing under the that the d efendant was apparently intoxicated, a police officer went to the driving his teacher’s vehicle into a tree. Id. at 293. After obtaining information In Davis, the defendant was taken to a hospital by ambulance after

defendant’s constitutional rights. Id. We held that it did not. Id. at 296, 299. of the blood alcohol content test result performed by the hospital viol ated the took place. In Davis, we addressed whether the State’s request and acquisition question of patient consent [is] essential” to whether an invasion of privacy Relying upon our decision in Davis, the defendant argues that “the

implicate Part I, Article 19. See i d. involvement in the withdrawal, the drawing of the defendant’s blood does not I, Article 19 of the New Hampshire Constitution.” Id. When there is no state person’s body without a warrant or consent is a search and seizure under Part “It is well settled that the government’s withdrawal of blood from a

no violation of the defendant’s rights under Part I, Article 19. Id. invasion of the defe ndant’s reasonable expectation of privacy, there has been one that society is prepared to recognize as “reasonable.” Id. Without an exhibited an actual (subjective) expectation of privacy and that expectation is Id. A warrantless search implicates Part I, Article 19 only if the defendant has violation of the State Constitution, we apply an expectation of privacy analysis.” When determining “whether a warrantless search may give rise to a

at 29 p. 5 5. may be subject to exclusion from evidence in a crim inal trial. Davis, 161 N.H. 5

content test run by the State on the hospit al blood draw sample. by denying the defendant’s request to suppress the results of the blood alcohol blood sample is not material to the analysis. Thus, the trial court did not err alcohol test was performe d by the hospital or the State on the already drawn the hospital did not implicate Part I, Article 19). Whether or not the blood Constitution. See id. (concluding that the drawing of the defendant’s blood by blo od draw itself did not implicate Part I, Article 19 of the New Hampshire drawn for purposes of diagnosis and treatment and, t herefore, the hospital there was no state action in the withdrawal of the defendant’s blood; it was consider whether the defendant consented to the hospital blood draw because purpose of diagnosis and treatment by hospital personnel. We need not hospital, there is no dispute that the hospital blood draw was done for the Here, although the defendant was unconscious when he arrived at the

whether t he withdrawal involved state action, s ee Davis, 161 N.H. at 29 p. 5 5. influence of intoxicating liquors or controlled drugs,” RSA 329:26; and (2) investigation for driving a motor vehicle while such person was under the diagnosis and treatment in connection with the incident giving rise to the and testing thereof, i s whether: (1) the withdrawal was done “for purposes of the defendant has a reasonable expectation of privacy in the State’s acquisitio n circumstances of the actual blood draw, for purposes of determining whether (emphasis added). We now hold that what is important regarding the the defendant’s consent to medical treatment was not at issue in that case. I d. Though we referred to the “consensual treatment of a patient” in Davis,

Id. at 298

controlled drugs. driving while u nder the influence of intoxicating liquors or connection with an incident giving rise to an investigation for are requested by law enforcement for law enforcement purposes in part of its consensual treatment of a patient, where those results blood alcohol test re sults obtained and recorded by a hospital as [S] ociety does not recognize a reasonable expectation of privacy in

generally, we concluded: may have had a reasonable expectation of privacy in his medical records Id. at 297 (quotation omitted). Accordingly, to the extent that the defendant that when people drive, they encounter a diminished expectation of privacy.” Id. at 296. We determined that the legislature has reflected the societal “belief additional source s in analyzing the reasonableness of an expectation of privacy. privilege statute, RSA 329:26, and the Implied Consent law, RSA 26 p. 5 5 - A:4, as We also looked to our legislature and considered the physician - patient

at 29 p. 6 6 (quotation omitted). enforcement purposes only in the investigation of an automobile accident.” Id. 6

“looking up” and that “[h]is feet were located in the driver’s side well.” He towards the . . . driver’s side post.” He further testified that th e male was passenger seat with his seat angled into the driver’s side well and he was faced Anot her firefighter, Rioux, testified that he noticed a male “laying in the side, and . . . his feet were pointing toward the driver’s side of the vehicle.” scene of the crash, he saw a male occupant whose “torso was on the passenger Desjadon of the Nashua Fire Rescue testified that shortly after he arrived at the that the defendant was the driver of the vehicle was overwhelming. Lieutenant driver’s side windshield. Nonetheless, t he other evidence presented to establish hospital blood draw sample matched the DNA in the blood found on the Here, the State presented evidence that the DNA in the defendant’s

vehicle; and (3) caused the death of another. Id. under the influence of intoxicating liquor; (2) when he operated a propelled the S tate had to prove beyond a reasonable doubt that: (1) the defendant was influence of intoxicating liquor. See RSA p. 6 630:3, II. To convict the defendant, The defendant was convicted of negligent homicide ― driving under the

well as the character of the erroneously admitted evidence itself. I d. at 589. making this determination, we consider the other evidence pre sented at trial as in relation to the strength of the State’s evidence of guilt. Id. at 588 - 89. In was improperly admitted or excluded is merely cumulative or inconsequential guilt is of an overwhelming nature, quantity, or weight, and if the evidence that harmless beyond a reasonable doubt if the other evidence of the defendant’s admission and exclusion of evidence.” Id. (quotation omitted). An error may be Id. (quotation omitt ed). “This standard applies to both the erroneous must prove beyond a reasonable doubt that the error did not affect the verdict.” Id. (quotation omitted). “To establish that an error was harmless, the State

immaterial error. the t rial rather than on the virtually inevitable presence of for the criminal process by focusing on the underlying fairness of of the defendant’s guilt or innocence, and promotes public respect central purpose of a criminal trial is to decide the factual question The harmless - er ror doctrine recognizes the principle that the

See State v. Edic, 1 p. 6 69 N.H. 580, 588 (201 p. 7 7). draw sample because, we agree with the State that any error was harmless. admitting the results of the DNA test run by the State on the hospital blood was harmless. We need not determine whether the trial court erred in test was not error, but even if it was error, any error in admitting the results to test it for DNA. The State contends that admission of the results of the DNA in the DNA contained in the sample and, therefore, the Stat e needed a warrant blood draw sample because he maintained a reasonable expectation of privacy suppress the results of the DNA test performed by the State on the hospital Next, the defendant argues that the trial court erred by failing to 7

DALIANIS, C.J.