2016-0698, The State of New Hampshire v. Meghan Sage

and (3) enhancing her sentence under RSA 265 - A:18, IV based upon a 2008 due process rights under Part I, Article 19 of the New Hampshire Constitution; test results, or alternatively dismiss her charge, for an alleged violation of her expansion of the underlying traffic stop; (2) declining to exclude breathalyzer trial court erred by: (1) denying her motion to suppress evidence derived from (Wageling, J.), see RSA 599:1 (Supp. 2016). On appeal, she argues that the RSA 265 - A:18, IV (2014), following a de novo jury trial in the Superior Court driving under the influence (D U I), second offense, see RSA 265 - A:2, I (2014); LYNN, J. The defendant, Meghan Sage, appeals her conviction for

for the defendant. Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally),

brief and orally), for the State. Gordon J. MacDonald, attorney general (Scott Chase, attorney, on the

No. 2016 - 0698 Rockingham

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

protective custody due to her intoxication level and transported her to the someone to pick her up at the station, Ronchi placed the defendan t in opportunities to use a telephone. When she was unsuccessful in arranging for $ p. 2 2,500 personal recognizance bail. The defendant was then offered several A bail commissioner subsequently arrived and released the defendant on

her breath sample s. S ee RSA p. 2 265 - A:7 (2014) (amended 2016). testing. Ronchi in turn provided the defendant with capture tubes containing time that his investigation was complete and he had no need to conduct further separate times. Ronchi denied the requests, explaining to the defendant each Upon hearing the results, the defendant requested a blood test at least three test. Testing of her breath samples revealed a blood alcohol level of 0.12. Administrative License Suspension form, the defendant consented to a breath After arrival at the station and review of her rights under the

DUI and transported her to the Hampton police station for processing. Ronchi administered. Ronchi the reafter placed the defendant under arrest for failed each test — horizontal gaze nystagmus, walk - and - turn, one - leg stand — perform field sobriety tests. The d efendant agreed to do so and subsequently conc ern remaining, Ronchi asked the defendant if she would be willing to consumed prior to operating her vehicle. The defendant replied “none.” His observations, Ronchi asked the defendant how much alcohol she had Concerned that she might be impaired based upon the foregoing

on her way from home, not work. to converse, however, the defendant altered her story, contending that she was way from work to her boyfriend’s house in Connecticut. As the two continued inquired into her travels. Initially, t he defendant explained that she was on her license and registration, which she produced without difficulty, and then observed that she had red, watery eyes. Ronchi requested the defendant’s defendant, Ronchi detected the odor of alcohol emanating fr om her vehicle and sole occupant, a female later i dentified as the defendant. While he spoke to the Ronchi approached the vehicle and made contact with its operator and

lights and the vehicle promptly pulled over. but was now traveling at 91 miles per hour. Ronchi activated his emergency pursuit, Ronchi caught up to the vehicle and observed that it had not slowed, 65 mile - per - hour zone on Interstate 95. See RSA p. 2 265:60, II (2014). After giving Hampshire State Police observed a vehicle traveling at 88 miles per hour in a approximately 5:00 a.m. on April 19, 2014, Trooper Ronchi of the New The following facts are ta ken from the trial court’s orders in this case. At

Stat. Ann. tit. p. 2 29 - A, § 2411 (Supp. 2007). We affirm. conviction from Maine for operating under the influence (OUI), see Me. Rev. p. 3 3

with its finding. This appeal followed. DUI and the trial court sentenced he r as a subsequent offender in accordance purposes under RSA 265 - A:18, IV. A jury later found the defendant guilty of conviction was a “reasonably equivalent offense” for sentence enhancement Hampshir e’s DUI offense. Thus, the trial court concluded that the Maine OUI Maine’s OUI offense would have also sustained a conviction for New the trial court found that the defendant’s conduct leading to her conviction for offense. After review of the factual allegations in the underlying police records, whether it was reasonably equivalent to a conviction for New Hampshire’s DUI consider the facts underlying the defendant’s Maine conviction in determining offenses differ, the trial court determined that, pursuant to Hull, it could also Maine OUI conviction. Although acknowledgin g that the elements of the two The trial court also rejected the defendant’s challenge to the use of her

demonstrate a violation of her due process rights. Accordingly, the trial court concluded that the defendant had failed to telephone, after which she made an inadequate effort to arrang e for one. opportunity to obtain an independent test by providing her access to a testing, the trial court found that the police afforded the defendant the articulable suspicion that the d efendant was driving under the influence. As to found that Ronchi’s expansion of the stop was justified by a reasonable, suppression motion in its entirety. With regard to the stop, the trial court Following an evidentiary hearing, the trial court denied the defendant’s

State v. Hull, 149 N.H. 706, 710 (200 p. 3 3). the element s - based approach to the determination established by this court in offense was not “reasonably equivalent” to New Hampshire’s DUI offense under enhancemen t purposes, see RSA 265 - A:2, I,:18, IV, asserting that Maine’s OUI the State’s intent to use her prior OUI conviction from Maine for sentence test. S ee RSA 265 - A:7 (2014) (amended 2016). T he defendant also challenged process rights by denying her the opportunity to obtain an independent blood breath test, or to dismiss the charge, arguing that Ronchi violated her due sobriety tests. The defendant further moved to exclude the results of her unlawfully expande d the scope of the stop when he asked her to perform field suppress evidence obtained during the traffic stop, arguing that Ronchi for a de novo jury trial. S ee RS A 599:1. Prior to trial, the defendant moved to DUI. S ee RSA 265 - A:2, I. The defendant then appealed to the superior c ourt Following a bench trial, the circuit court found the defendant guilty of

any point thereafter. corrections. She did not seek to have an independent blood test performed at family members to no avail, the defendant was released from the house of custody for 8 hours, during which she made additional telephone calls to Rockingham County House of Corrections. After being held in protective p. 4 4

Steeves, 158 N.H. 672, 677 (2009). N.H. p. 4 452, 455 (2012), and to administer field sobriety tests, see State v. number of questions to confirm or dispel this suspicion, see State v. Bell, 164 travels. Consequently, Ronchi was permitted to ask the defendant a moderate her red and water y eyes; and (4) her inconsistent explanation s regarding her maintain a correct s peed; (2) the odor of alcohol emanating from her vehicle; (3) defendant was driving under the influence: (1) the defendant’s inability to sufficient to justify expand ing the scope of the stop to invest igate whether the observations, Ronchi possessed a reasonable and articulable suspicion In this case, w e agree with the trial court that, based upon the following

have committed some kind of crime.” Id. at 188 - 89 (quotation omitted). and not simply a general sense that this is pr obably a bad person who may should not be blind. Id. The “articulable facts must lead to something specific that experienced officers’ perceptions are entitled to deference, this deference unremarkable to an untrained observer.” Id. at 188. Although w e reco gnize make inferences and draw conclusions from conduct that may seem all surrounding circumstances, keeping in mind that a trained officer may sufficiency of an officer’ s suspicion, we evaluate the articulable facts in light of criminal activity is afoot.” Id. (quotation omitted). “To determin e the only if the officer has a reasonable and articulable suspicion that other scope of a stop may be expanded to investigate other suspected illegal activity effectuate the purpose of the stop.” Id. (quotati on and brackets omitted). “The justification, must be temporary, and last no longer than is necessary to scope of such an investigative stop must be carefully tailored to its underlying A traffic stop is a seizure for purposes of the State Constitution. Id. “The

Blesdell - Moore, 166 N.H. 183, 187 (201 p. 4 4). or are clearly erroneous, and we review legal conclusions de novo.” State v. accept the trial court’s factual findings unless they lack support in the record (1983). “When reviewing a trial court’s order on a motion to suppress, we s ee State v. Dewitt, 143 N.H. 24, 33 (1998); State v. Ball, 124 N.H. 226, 2 33 constitutional argument and rely upon federal law merely to aid our analysis, see State v. De C ato, 156 N.H. 570, 573 (2007), we limit our review to her state demonstrate on appeal that she preserved her federal constitutional argument, 19 of the New Hampshire Constitution. Because th e defendant has failed to Fourteenth Amendments to the United States Const itution and Part I, Article all evidence derived from this violation of her rights under the Fourth and defendant argues that the trial court err ed in denying her motion to suppress step out of the vehic le to perform field sobriety test s. Accordingly, the Ronchi unlawfully expanded the scope of the traffic stop when he asked her to T he defendant first contends that, after stopping her for speeding,

violation s, the trial court erred by not dismissing the charge, or, at the independent blood test. The defen dant contends that, in light of these New Hampshire Constitution by failing to accommodate her request for an statutory rights as well as her due process rights under Part I, Article 1 p. 5 5 of the We next address the defendant’s argument that Ronchi violated her

defendant’s motion to suppress th e evidence derived therefrom. influence, we conclude that the trial court did not err in denying the reasonable, articulable suspicion that the defendant was driving under the Accordingly, because Ronchi’s expansion of the stop was justified by a

that their absence acted to d efeat it in this case. strengthened Ronchi’s reasonable and articulable suspicion, we do not believe the e vidence”). Although other indicators of impairmen t would have arguably detention “is considerably less than proof of wrongdoing by a preponderance of 7 (recognizing that the level of suspicion necessary for an investigative “less demandi ng standard than probable cau se”); see also Sokolow, 490 U.S. at Sousa, 1 p. 5 51 N.H. 297, 299 (2004) (recognizing that r easonable suspicion is a possess a reasonable and articulable suspicion that she was. See State v. impa ired in order to expand the scope of the stop. Rather, he needed to impaired. Ronchi, however, did not need to “conclude” that the defendant was defendant argues, it was not reasonable for Ronchi to “conclude” that she was impairment, such as vehicle co ntrol issues or slurred speech. Thus, the observations collectively, he did not observe other hallmark indicators of The defendant nevertheless contends that, even considering Ronchi’s

re asonable suspicion.”). consistent with innocent travel. But we think taken together they amount to of these factors is not by itself proof of any illegal conduct and is quite from her vehicle. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (“Any one observations must be considered together with the o dor of alcohol emanating speed, and red an d watery eyes may seem innocuous in isolation, these 149 - p. 5 50 (2001). Thus, while the defendant’s inconsistent statements, vehicle and investigating impaired drivers may draw. State v. Wallace, 14 p. 6 6 N.H. 146, light of the reasonable inferences that an officer who is experienced in detecting Ronchi’s observations in is olation; rather, we consider them together and in Turmel, 150 N.H. 377, 381 (2003). Moreover, we do not consider each of proceeding.” State v. Galgay, 145 N.H. 100, 103 (2000); accord State v. does not mean that an officer must rule out innocent explanations before observed activity could be consistent with both guilty and innocent behavior be attributable to fatigue. As we have previously recognized, however, “[t] hat attributable to a cause other than impairment — e.g., red and watery eyes may reasonable suspicion, t he defendant begins by asserting that most are readily In arguing that the foregoing observations are insufficient to establish a 6

dissenting) (discussing the implied consent law then in effect). Accordingly, be valueless.” State v. Dunsmore, 112 N.H. 382, 385 (1972) (Grimes, J., request the additional test, the instruction about the right to have one would who seek to exercise this right.” Id. Indeed, “witho ut the opportunity to independent test, under the State Constitution some process is due individuals “T hough [D UI] defendants enjoy only a limited statutory right to an

200 p. 6 6), part of the implied consent law then in effect). 140 N.H. 319, 321 (1995) (bracket s omitted) (quoting RSA 265:86 (repealed any test taken at the direction of a law enforcement officer. ’” State v. Winslow, arrested pers on to obtain an additional test’ will not ‘ preclude the admission of additional tes t is not absolute, however, as ‘ t he failure or ina bility of an request such additional test.” RSA 265 - A:8, I(b) (2014). “The right to an It further requires that the arrested person be afforded “a n opportunity to 2 65 - A:8, I(a) (2014) (amended 2016); see RSA 265 - A:4 (2014) (amended 2017). or tests of his or her blood made by a person of his or her own choosing.” RSA test, to inform an arrested person of “his or her right to have an additional test That version requi res an officer, before administering any blood - alcohol

time of her arrest. statutory claim to the version of the implied consent statute in effect at the conduct accordingly.”). Accordingly, we limit our analysis of the defendant’s so that people have op portunities to know what the law is and to conform their applying a newly enacted statute retrospectively exists as a matter of fairness, Construction § 41:4, at 417 - 18 (7th ed. 2009) (“The presumption against future.”); see also 2 N.J. Singer & J.D. Shambie Singer, Statu t es and Statutory legislature set an effective date for that amendment nearly six months into the legislative intent that an amendment should apply retrospectively when the State v. Carpentino, 1 p. 6 66 N.H. 9, 15 (2014) (“We find it difficult to infer retroactive effect, but rather set January 1, 2017 as their effective date. See consideration of the foregoing, the legislature did not give the amendments statute do not clarify the former version; they change it. Pr esumably out of such is not the case he re. The 2016 amendments to the implied consent N.H. Dep’t of Admin. Servs., 166 N.H. 755, 763 (2014) (quotation omitted), evidence of the legislative intent concerning the original enactment,” Bovaird v. “where a former statute is clarified by amendment, the amendment is strong themselves available to draw and test blood”). Although we have recognized “contact information for individuals and the nearest facilities that make when law enforcement ask a person to submit to a breath test they provide thereto. See, e.g., RSA 265 - A:7 (Supp. 2016) (eff. Jan. 1, 20 17) (requiri ng that statute in effect at the time of her arrest in 2014 with the 2016 amendments be proper to evaluate her statutory claim by construing the implied consent As a preliminary matter, we reject the defend ant’s position that it would

court’s ruling. minimum, excluding her breath test results. W e find no error in the trial p. 7 7

foregoing, we need not address the defendant’s arguments regarding the proper violation of the defendant’s statutory or due process rights. In light of the Accordingly, we conclude that the trial cou rt did not err in finding no

sample capture tubes. See RSA 265 - A: p. 7 7. did in Winslow, that the police provided the defendant with her breath test requesting assistance with arranging testing. Finally, we end by noting, as we accommodation from the police following her unsuccessful calls, such as there is no indication in the record that the defendant sought any further police station and at the house of corrections. In turn, also as in Winslow, obtain one by providing several opportunities to use a telephone, both at the requested such a test, the police afforded her a meaningful opportunity to of her statutory right to an independent blood test and, after the defendant Likewise, in this case, the record shows that the defendant was informed

process required further accommodation. Id. his unsuccessful calls and, therefore, he had failed to demonstrate that due further observed that the defendant did not explicitly ask for assistance after may not satisfy the requirem ents of due process in all circumstances,” we him with a telephone. Id. at 322. Although noting that “access to a telephone provided with a meaningful opportunity to obtain one when the police provided def endant was informed of his statutory right to an independent test and 321. In concluding that the trial court did not err, we observed that the rights by interfering with his efforts to obtain an independent blood test. Id. at the results of the breath test, arguing that the police violated his due process The defendant appealed the trial court’s denial of his motion to suppress

arranged, and he was transported to a county jail. Id. at 320 - 21. con tact a physician on his behalf or inquire if transportation could be permitted only collect calls. Id. He did not, however, request the police to transportation for a blood test, the defendant complained that the telephone in contacting someone to assist him in making bail and arranging police provided him with access to a telephone. Id. After he was unsuccessful his request for a blood test following his breath test and, after booking him, the latter following completion of the former. Id. at 320. The defendant renewed independent blood test, was told he would be given the opportunity for the intoxicated, who had consented to a breath test while also requesting a n in the present case. In Winslow, a defendant arrested for driving while We find, as did the trial court, our decision in Winslow to be instructive

Id. him a meaningful opportunity will depend upon the circumstances of the case.” 322. “Whether the State has so frustrated the defendant’ s efforts as to deny opportunity to request an additional blood - alcohol test.” Winslow, 140 N.H. at “du e process requires that a [D UI] defendant be afforded a meaningful p. 8 8

distinction between the terms “operate” and “drive” under our DUI offense, we Id. at 710 - 11 (quotation omitted). As we had never previously drawn a Massachusetts’ s offense and “drive a vehicle” under New Hampshire’s offense. difference between the third being the phrases “operates a motor vehicle” under three elements, two of which were identical in language, with th e only The Massachusetts and New Hampshire offenses contained the same

to determine whether they were reasonably equivalent. Id. element s - based approach to the New Hampshire and Massachusetts offenses then used by the department of safety in a different context, we applied this Id. at 710 (citations omitted). Finding it persuasive and consistent with a test

of the present charge. enh anced sentence. The prior offense is not an additional element punish a specific type of recurring conduct by imposing an because the purpose of subsequent offender laws is to prohibit and language of the elements of the statutes need not be identical, this question is “no,” the offenses are not “equivalent.” The offense” for sentencing enhancement purposes. If the answer to the answer to this question is “yes,” the offense is an “equivalent necessarily sustain a conviction under the home state’s statute. If convic tion for the out - of - state jurisdiction’s offense would common factor is whether the evidence required to sustain a While the tests applied in other jurisdictions differ, one

to other jurisdictions for guidance and observed the following: “reasonably equ ivalent offense” was, id. at 709 (quotation omitted), we looked Recognizing that neither we nor the legislature had to that point defined what a (analyzing RSA 265: p. 8 82 - b (repealed 2006), part of the DUI statute then in effect). a conviction for New Hampshire’s DUI offense. Hull, 149 N.H. at 708 - 11 prior conviction for Massachusetts’s OUI offense was “reasonably equivalent” to upon to determine whether, for sentence enhancement purposes, a defendant’s jurisdiction.” RSA 265 - A:18, IV (emphasis added). In Hull, we were called or RSA 630:3, II, or under reasonably equivalent offenses in an out - of - state “has had one or more prior convictions under RSA 265 - A:2, I or RSA 265 - A:3, shall be subject to enhanced penalties if, as alleged in the complaint, he or she In relevant part, RSA 265 - A:18 provides that a person convicted of DUI

her 200 p. 8 8 OUI conviction from Maine. defendant as a subsequent offender pursuant to RSA 265 - A:18, IV based upon We lastly address whether the trial court erred in sentencing the

case. remedy for a due process violation under the facts and circumstances of this p. 9 9

jurisdictions do not require affirmative proof that the impaired - driving offense enhancement under RSA 265 - A:18. This is because, like Maine, these Connectic ut) — and the District of Columbia would not qualify for sentence four other states — including two other New England states (Rhode Island and points out that this would mean prior impaired - driving convictions from thirty - Acknowledging this result under a “narrow” application of Hull, the State

N.H. at 710. “necessarily sustain a conviction” for New Hampshire’s offense. See Hull, 14 p. 9 9 the evidence required to sustain a conviction for Maine’s offense would not proof that the offense occurred on a “way,” while Maine’s OUI offense does not, equivalent.” That is, because New Hampshire’s DUI offense requires affirmative Hull compels the conclusion that the two offenses are not “reasonably RSA 259:125, II (2014). The defendant argues that, in light of the foregoing,

the public. establishments which are gener ally maintained for the benefit of including parking lots and other out - of - door areas of commercial maintained way open for public use; and any private parking lots, funds are appropriated for public use; any privately owned and provided and maintained by pub lic institutions to which state parkway; any private way laid out under authority of statute; ways any public highway, street, avenue, road, alley, park, parking lot or

1 - A(A)). Our legislature has defined a “way” as follows: occurred upon a “way.” Compare id. with Me. Rev. S tat. Ann. tit. 2 p. 9 9 - A, § 2411, element that Maine’s OUI offense does not — the impaired driving must have Thus, New Hampshire’s DUI offense requires proof of an essential

A:2, I. liquor or while having a blood alcohol level of 0.08% or more. See RSA 265 drive a vehicle; (2) upon any way; (3) while under the influence of intoxicating State to prove beyond a reasonable doubt that she: (1) drove or attempted to Hampshire DUI statute under which the defendant was charged required the (construing a former version of Maine’s OUI statute). By contrast, the Ne w A(A) (Supp. 2007); see State v. Deschenes, 780 A.2d 2 p. 9 95, 298 (Me. 2001) blood - alcohol level of 0.08% or more. Me. Rev. Stat. Ann. tit. 29 - A, § 2411, 1 motor vehicle; (2) while under the influence of intoxicants or while having a beyond a reasonable doubt that she: (1) operated or attempted to operate a to convict the defendant of OUI in Maine, the prosecution needed to prove Applying Hull ’s elements - based approach to the present matter, in order

11. would necessarily sustain a conviction for DUI in New Hampshire. Id. at 7 p. 10 10 because the evidence required to sustain a conviction for OUI in Massachusetts ultimately concluded that the two offenses were “reasonably equivalent” 10

roads in New Hampshire upon which an individual may drive while impaired nonequivalen t to our own. Though there remain private driveways, paths, and jurisdiction’s impaired - driving offense does not, alone, render that offense leads us to conclude that the element’s absence from an out - of - state Similarly, the breadth of the definition of “way” under our DUI statutes

Id.

invitees is a [DUI] - free zone. lakeside community that is used by residents, guests, and select intent to construe the statute to provide that a private road in a which the public has access. It would be contrary to legislative Public safety requires that [DUI] statutes apply to any property to

the public could access it even if unauthorized to do so: community constituted a “way” because the road was ungated and, therefore, led us to conclude in State v. Lathrop that a marked private road in a lakeside 468, 470 (2012) (quotations omitted). The breadth of this expa nded definition persons may be convicted of [DUI]” in our State. State v. Lathrop, 164 N.H. definition was expanded to include “private ways among the areas upon which legislature’s larger effort to close “loopholes” and “get tough” on DUI, the (1959), its definition underwent a significant expansion in 1981. As part of the State v. Rosier, p. 10 105 N.H. 6, 7 - 9 (1963); State v. Gallagher, 102 N.H. 335, 336 “public” highways or ways, see, e.g, State v. Tardiff, 117 N.H. 53, 56 (1977); statutes limited the prohibition against impaired driving to New Hampshire’s Supp. 2017). Though historically the definition of “way” applicable to our DUI See Hull, 149 N.H. at 710 - 11; Mass Gen. Laws Ann. ch. 90, § 24(1)(a)(1) (West Hampshire’s offense, Massachusetts’ s OUI offense contains a “way” element. harm the statute is designed to guard against. This was so because, like New the “way” element, which has, at most, only a tangential relationship to the we did not have occasion to consider the significance of an element, such as When establishing and applying the elements - based approach in Hull,

State’s argument. (quoting State v. Goding, 126 N.H. 50, 52 (1985))). We are persuaded by the on license restoration for individual s with prior impaired - driving arrests rule effectuating this purpose by permitting imposition of additional conditions under the influence of intoxicating liquor” and upholding an administrative “purpose of the [DUI] statutes is to prevent the operation of cars by persons another. Cf. Petition of Mooney, 160 N.H. 607, 612 (20 p. 10 10) (recognizing the Hampshire regardless of whether the prior act occurred in this state or more harshly penalizing subsequent acts of driving under the influence in New A:18 solely on this basis runs counter to the statute’s purpose of deterring and that drastically limiting the scope of sentence enhancement under RSA 265 - 2017); 31 R.I. Gen. Laws Ann. § 31 - 27 - 2 (West Supp. 2016). The State argues occurred upon a “way.” See, e.g., Conn. Gen. Stat. Ann. § 14 - 227a (West Supp. p. 11 11

HICKS, J.