State of New Hampshire v. Roy Rogers

1. Whether the court erred by denying Rogers’s motion to enforce the agreement the State made with him. Issue preserved by Rogers’s motion to dismiss, A* 12, the State’s objection, A 15, the parties’ arguments, T2 129–44, the court’s order, AD 3, Rogers’s motion to reconsider, A 18, the State’s objection, A 28, the parties’ arguments, S 3–10, and the court’s order, AD 6; S 10. 2. Whether the court erred by imposing more than one conviction and sentence for resisting arrest. Issued preserved by Rogers’s argument, T2 138, and the court’s imposition of multiple convictions and sentences. S 27; A 30–42. To the extent the issue is not preserved, it is raised as plain error.

In October 2020, the State filed eight complaints in the Ninth Circuit Court – District Division – Milford. A 3–10. Five complaints alleged that Roy Rogers resisted arrest, one alleged that he drove while intoxicated, one alleged that he drove with a suspended license, and one alleged that he drove negligently. A 3–10. The court (Derby, J.) conducted a two- day bench trial on November 15 and 29, 2021. On December 9, 2021, the court found Rogers not guilty of negligent driving and guilty of the remaining charges. AD 3. On December 27, 2021, the court entered convictions on all five resisting-arrest charges and sentenced Rogers to concurrent sentences of 120 days in the house of corrections, all suspended for two years. A 30–42. On the driving-while-intoxicated conviction, the court imposed a $620 fine, stayed pending appeal, and a nine-month license loss. A 45. On the driving-with-a- suspended-license conviction, the court imposed a $310 fine, suspended for one year. A 49.

In September 2020, Roy Rogers was living in Shirley, Massachusetts, and working as a corrections officer at the Federal Medical Center, a prison in Devens, Massachusetts. BC 0:50, A 52; BC 1:15, A 53; BC 1:55, A 54–55; BC 2:30–3:15, A 55–56. Rogers’s friend, Ashley, lived in Ashby, Massachusetts, with her three kids. BC 1:30, A 53–54; BC 5:30, A 60; BC 5:55, A 60–61; BC 6:25, A 61. On September 11, Ashley and her kids attended a sleepover at her friend’s house in Pepperhill, Massachusetts, less than two miles from the New Hampshire border. BC 1:35, A 54; BC 4:40, A 59–60; BC 5:45, A 60; BC 5:55, A 61. Ashley invited Rogers to join her, and he arrived in a separate vehicle. BC 1:35, A 54; BC 9:15, A 66.

Shortly after 4:00 a.m., someone at the party complained about Rogers’s presence, asking Ashley, “Why did you bring a black guy?” and telling her, “N-----s don’t belong in Pepperhill.” BC 4:45, A 59; BC 5:20, A 60; BC 6:05, A 61; T1 11. Rogers overheard the comment and left immediately, with Ashley and her kids soon following. BC 6:10, A 61, BC 9:35, A 66; T1 18.

Rogers made a wrong turn and entered Brookline, New Hampshire, where, about two miles from the house, he stopped to wait for Ashley. BC 4:50, A 59; BC 8:50, A 65; BC 9:35, A 66; T1 14. When Rogers saw a car approaching, he thought it was Ashley, so, as he started moving, he flashed his high beams once to get her attention. BC 1:20, A 53; BC 8:40, A 65; BC 9:35, A 66–67; T1 11, 14, 51–52, 55. That car was not Ashley’s, but a police cruiser driven by Brookline Officer David Torrisi. BC 6:20, A 61; BC 8:40, A 65; T1 9, 11. Intrigued by Rogers’s actions, Torrisi pulled behind him and approached. BC 6:20, A 61; T1 14–15, 56–57. Shortly after Torrisi approached Rogers, Ashley arrived, along with Officer Kyle Connors of the Hollis Police Department. BC 0:10; T1 17–18, 57, T2 77. Connors wore a body camera, which recorded the subsequent events.

Ashley and Rogers each explained the situation to Torrisi and Connors. BC 1:00, A 52; BC 1:35, A 54; BC 4:40, A 59–63; BC 8:40, A 65; BC 9:15, A 66–68; T1 57. Torrisi observed Rogers’s vest and badge. BC 0:30, A 52; BC 2:35, A 55–56; BC 2:55, A 56; T1 16. Torrisi and Connors then repeatedly asked Rogers to produce identification proving that he was, in fact, a corrections officer, which he did. BC 2:35, A 55–56; BC 3:10, A 56. Torrisi nevertheless told Connors, “He’s lying.” BC 4:35, A 59. Torrisi also discovered that Rogers’s Virginia driver’s license was suspended for lack of insurance. BC 13:55, A 74; T1 16–17, 21, 60–61.

Torrisi and Connors claimed to smell alcohol on Rogers, but Rogers stated that he had not been drinking. BC 7:25, A 63; BC 7:40, A 63–64; BC 9:10, A 65–66; BC 10:10, A 68.

Torrisi also claimed to smell alcohol coming from Ashley, but, despite the presence of three children in her car, he focused his attention on Rogers. BC 4:55, A 59; BC 7:25, A 63; T1 18, 80.

Torrisi asked Rogers to perform field sobriety tests. BC 10:35, A 68; T1 21. Rogers agreed but, during the tests, expressed frustration that he was being racially profiled, harassed and embarrassed in front of Ashley’s children. BC 12:25, A 71; BC 12:55, A 72; BC 18:30, A 79; BC 19:15–20:25, A 80–82; T2 82–83, 88–89, 94. Torrisi claimed that Rogers failed the field sobriety tests, calling him “tanked, ” but Connors observed that any deficiencies may have been caused by his frustration. BC 21:45, A 84; T2 94. Torrisi claimed, however, that Rogers “definitely” exhibited horizontal gaze nystagmus, so Connors told him, “It’s entirely up to you. This is your call. [Ashley] made an offer to drive him home. Your call. It’s your stop.” BC 22:00, A 84. Torrisi predicted, “I think he’s gonna be over [.08 percent blood alcohol], ” and told Connors that he would arrest him. BC 22:35, A 85.

Torrisi told Rogers to put his hands behind his back. BC 23:20, A 86. Rogers verbally protested, asking repeatedly, “How did I fail?” BC 23:25, A 86. When Torrisi grabbed Rogers’s hands, Rogers pulled his hands to his chest, asked, “Sir, can... [Ashley] just take me home?” and said that, if arrested, he would lose his job, even though he hadn’t done anything wrong. BC 23:50, A 87; T1 31–32, 50, T2 96, 98–99, 117–19. While Torrisi tried to pull Rogers’s hands down, Rogers repeatedly asked for a supervisor. BC 24:15, A 88–92; T2 100. Rogers also expressed concern that, if he put his hands behind his back, he would be deemed to have consented to the arrest. BC 25:00, A 89; see also Guan v. City of New York, 37 F.4th 797, 804 (2d Cir. 2022) (to bring a federal civil rights action for false arrest, the plaintiff must prove that he “did not consent to the confinement”); City of Watauga v. Gordon, 389 S.W.3d 604, 607 (Tex. App. 2012) (plaintiff “consented to the application of handcuffs and did not resist their application, ” thus precluding action for assault or battery), rev’d, 434 S.W.3d 586, 591 (Tex. 2014); Pierson v. Ray, 352 F.2d 213, 221 (5th Cir. 1965) (plaintiffs, a group of clergymen who used segregated facilities at an interstate bus stop, may have “invited or consented to arrest and confinement, ” thus precluding a federal civil rights action), rev’d in part, 386 U.S. 547, 558 (1967). Connors promised Rogers that, if he placed his hands behind his back, he would call a supervisor out to the scene. BC 25:50, A 91–92. Rogers then repeatedly asked Torrisi, “Am I being detained?” BC 26:30, A 93. Each time, Torrisi did not answer directly, instead telling Rogers, “You are under arrest.” BC 26:30, A 93. Less than four minutes after Torrisi initially told Rogers to put his hands behind his back, Rogers relaxed his arms and Torrisi handcuffed him. BC 26:55; T2 101; but see T1 31 (Torrisi mistakenly testified that it took “15 to 20 minutes” to handcuff Rogers). As he did, Connors again assured Rogers that, once handcuffed, he could talk to a supervisor. BC 27:05, A 94.

When Torrisi attempted to lead Rogers to his cruiser, Rogers said, “I do not feel comfortable going in the car, ” and reiterated his request to see a supervisor. BC 30:00, A 99. At that point, Connors told Rogers that no supervisor was on duty. BC 30:15, A 99. Rogers, visibly surprised, exclaimed, “Oh my God, ” “I have a kid that I have to get home to, ” and “I have to get to work in a little bit.” BC 30:15, A 99–100. He then asked Connors, “Why didn’t you explain that to me before... you started this whole process?” BC 30:55, A 101. Torrisi pushed Rogers toward the open cruiser door, but Rogers leaned back, repeatedly asked for a supervisor and complained that he passed the sobriety tests and was being racially profiled. BC 31:00–32:45, A 102–04; BC 33:40–37:55, A 106–15; BC 40:25, A 120–21; BC 42:00, A 124; BC 42:30, A 125; T1 32–33, 50, T2 103, 119. At one point, Torrisi accused Rogers of “squaring off” at him, even though he was in handcuffs. BC 42:15, A 124; see also T1 50–51 (repeating the accusation at trial). Rogers denied the accusation and told Torrisi, “Don’t be afraid, sir.” BC 42:15, A 124–25.

Torrisi responded, “I don’t know you. I don’t know you.” BC 42:15, A 125.

Connors repeatedly promised Rogers that, after his transport to the police department, he would be released on bail. BC 35:55, A 121 (“Do you know what book and bail is?... That’s all this is right now.”); BC 40:00, A 129 (“You’re going to get bailed out, and you’re going to go home”); BC 45:00, A 130 (“[Ashley’s] going to come bail you out”); BC 45:15, A 130 (“You get bailed out and you figure it out another time”); BC 47:40, A 135 (“You’ll get bailed out. You’ll go home and you’ll figure it out another time.”); BC 48:05, A 136 (“[Ashley will] follow you. You’ll get bailed out. And that’s it.”); BC 48:40, A 137 (“The quicker you go through this, the quicker you’re bailed out”). This promise was unconditional; it was not contingent on Rogers taking any test or on the result of any test. BC 35:55, A 121; BC 40:00, A 129; BC 45:00, A 130; BC 45:15, A 130; BC 47:40, A 135; BC 48:05, A 136; BC 48:40, A 137 Torrisi made an additional promise, this one conditional. Torrisi told Rogers, “Listen. You go to the station, you take the breathalyzer. If it’s under. 08, you’re free to go.” BC 43:00, A 126. Connors reiterated Torrisi’s offer: “The breathalyzer, if it’s under. 08, you’re good.” BC 43:10, A 126. Torrisi then repeated the offer: “If you’re under it, you’re free to go.” BC 43:10, A 126.

Connors encouraged Rogers to accept the Torrisi’s offer, explaining, “[I]f you don’t think you’re drunk, you can take the breathalyzer and it will tell you if you are above or below a .08, which is the legal limit to drive in New Hampshire.” BC 43:15, A 126. He added, “If you want to prove that you’re not drunk, you can.” BC 44:15, A 128. He continued, “If you think you’re below a.08, prove him wrong. Take the test.” BC 45:20, A 130.

Rogers requested that Connors, rather than Torrisi, drive him to the police station, explaining that Torrisi had not spoken to him respectfully. BC 45:40, A 131; BC 46:20, A 132. Connors declined to drive Rogers, but agreed to go to the police station as well. BC 46:05, A 132; T2 106. About twenty minutes after Torrisi initially tried to lead Rogers to the cruiser, Rogers sat down in the cruiser and Torrisi drove him to the Brookline police station. BC 51:10; T1 37–38, T2 103, 106.

The events at the police station were recorded, with audio, both by Connors’s body camera and by a fixed camera in the booking room. Connors told Rogers that Ashley was coming to pick him up, reiterating his unconditional promise to release Rogers regardless of the performance or outcome of any test. BC 1:04:00, BK0 0:55, A 146 (“[Ashley] said she’s going to come back in a little while, right? Come get you.”); BC 1:04:40, BK0 1:35 (“Listen, the quicker you do it, the quicker you’re out of here, I swear”); BC 1:05:55, BK0 2:50, A 148 (“[T]he quicker you do this, the quicker you’re out of here, okay?”); BC 1:06:10, BK0 3:05, A 149 (“The quicker you’re in, the quicker you’re out, okay?”); BC 1:06:15, BK0 3:10, A 149 (“We’ll get you out of here, okay? We’ll get you out of here.”); BC 1:08:25, BK0 5:20, A 150 (“When this goes through, you’re in and out of here just like that”). Torrisi then read Rogers an administrative-license- suspension (ALS) form, requesting his written consent to take a breathalyzer test. BC 1:09:00, BK0 5:55, A 151; T1 38–39, T2 109. Referring to the test, Connors told Rogers, “If you blow below a.08, ... it’s not over the legal limit to drive.” BC 1:11:55, BK0 8:50, A 153. Rogers asked Torrisi whether, if he blew below a.08, he would “let [him] go.” BC 1:14:10, BK0 11:05, A 155, T2 110. Torrisi responded, “Yeah.” BC 1:14:20, BK0 11:15, A 155; T2 110. Rogers then asked, if blew “under... the legal limit, ” “how far does this go?” BC 1:22:50, BK1 7:10, A 161–62. Torrisi responded that Rogers would have a court date for driving with a suspended license. BC 1:23:05, BK1 7:25, A 162; T1 49. Connors again encouraged Rogers to accept Torrisi’s offer, explaining, “That’s a pretty good deal, Roy. That’s fair. That’s as fair and accurate as it gets.” BC 1:23:35, BK1 7:55, A 162. Connors reiterated that Rogers would be released regardless of whether he took the test. BC 1:24:00, BK1 8:20, A 163 (“You just got to make a decision and we’ll get you out of here.”); BC 1:26:50, BK1 11:10, A 167 (“[J]ust make your decision and let’s get you out of here.”).

Less than twenty minutes after Torrisi read Rogers the ALS form, Rogers signed it, indicating his agreement to take the test. BC 1:27:00, BK1 11:20; T1 39–40, T2 110. Connors then left. BC 1:27:45, BK1 12:05, A 168; T1 42, T2 107. Torrisi initiated a standard twenty-minute, pre-test observation period, to ensure that Rogers did not burp or vomit, which would invalidate the test. BK2 2:05, A 169–70; T1 45–47, T2 110–11. During the observation period, Rogers asked Torrisi whether he was contributing to his 401(k)- retirement plan. BK4 0:25, A 185–86. When Torrisi said that he was not, Rogers strongly encouraged him to do so. BK4 0:30–1:30, A 186.

The test takes two samples. T1 47–48, T2 111. The official result is the lower of the two. T1 48. When Rogers performed the test, the results were. 076 and. 073. T1 47–48, T2 111. After informing Rogers of the results, Torrisi told him, “You still need to take care of that whole suspension thing.” BK4 9:25, A 191.

Torrisi was visibly upset about the test results. BK4 9:55; see also T1 111 (Torrisi admitting he was “mad”); 120 (“frustrated”). He gestured to the booking room camera, which was recording sound and video, and signaled to another officer to talk to him out of earshot of the camera. BK4 9:55. When he returned, he accused Rogers of deliberately stalling until, due to metabolization, the result of the test would be below. 08. BK5 6:05, A 192 (“You did this whole thing to prolong this whole thing, all right? Because the blood alcohol content per hour, et cetera.”); BK5 6:35, A 193 (“[T]he amount of time that we spent roadside talking to you to get in the car, we could’ve been back here and you probably would’ve been over. 08... And that’s probably why I think you did this whole thing. All right. That’s my personal opinion.”). Torrisi did not explain why he assumed that Rogers’s blood-alcohol concentration was going down, rather than up, which would be case if he had recently ingested alcohol and was in the process of absorption. BK5 6:05, A 192; BK5 6:35, A 193. He also did not explain how Rogers would know his precise blood alcohol content at any given time. BK5 6:05, A 192; BK5 6:35, A 193.

Torrisi told Rogers that he was giving Rogers a “warning” for driving while intoxicated and that Rogers was “getting a break.” BK5 6:20, A 192 (“You’re getting a break. You’re only getting charged for the suspension”); BK5 6:35, A 192 (“You’re getting a good break right now, okay?”); BK5 6:35, A 193 (“You’re getting a break.”); BK5 7:40, A 194 (“That’s the advice I’m going to be giving you for this warning”). He added, however, that “if work finds out about it, work finds out about it.” BK5 7:50, A 194.

The following day, Torrisi filed a total of seven additional complaints against Rogers, one for driving while intoxicated, five for resisting arrest, and one for negligent driving. T1 49, T2 113–14. Torrisi directed a colleague to call Rogers’s employer and inform the employer of Rogers’s arrest. T2 114–15, 122.

At trial, Torrisi testified that Rogers smelled of alcohol, had “glassy and bloodshot” eyes, was slurring his words, and was unsteady on his feet. T1 15–17, 21, 30, 38, 59, 61, T2 77, 123. He also testified that Rogers failed the field sobriety tests. T1 22–30, 32, T2 92.

1. The elements of contract formation are offer, acceptance and consideration. Here, the police offered to forego prosecution if Rogers took a breathalyzer and the result was below. 08 percent. Rogers accepted the offer by taking the breathalyzer. The police’s promise to forego prosecution and Rogers’s performance of the breathalyzer each constituted consideration. The result was below. 08. Thus, the State was bound to honor its promise to forego prosecution.

2. The State and Federal Constitutions prohibit multiple convictions for the same offense. The unit of prosecution for resisting arrest is the arrest itself, not each discrete act of physical interference. Here, Rogers resisted a single arrest. Thus, the Court erred by entering five convictions.

Three days prior to the first day of trial, Rogers moved to dismiss the pending charges. A 12. He argued that Torrisi and Connors “offered to not prosecute [him] for the offenses if he agreed to perform the breathalyzer test at the station and the result was under a.07 [sic].” A 13. He argued that “[t]he officers and [he] had a meeting of the minds where an offer was extended, accepted, and consideration made.” A 13. “As a result, ” he argued, ” “there was [a] contract between the parties.” A 13.

By “submit[ting] to the breathalyzer and bl[owing] below a.08, ” Rogers noted, he fulfilled his obligations under the contract. A 13. By filing the charges anyway, he argued, Torrisi “breached the agreement he created with [Rogers].” A 14. The remedy, he argued, was to enforce the contract by dismissing the charges, with prejudice. A 14.

With the court’s permission, T1 8, the State objected to Rogers’s motion between the first and second days of trial. A 15. Among other things, it argued that Torrisi and Connors promised merely that, if Rogers blew below a.08, he would be released from custody, not that he would not be prosecuted. A 16–17.

The parties addressed the motion during the second day of trial, after the State rested. T2 129. Rogers argued that a reasonable person in his position would not have thought that, if he blew below a.08, “I’m only free to go for tonight and then tomorrow I’m going to get charged with everything.” T2 130. Rather, such a person would have understood the officers to promise that, if he blew below a.08, the police would “not... prosecute.” T2 130.

The State argued, “[T]here was no agreement. There was no contract.” T2 133. It argued that the police “are... allowed to lie and mislead [motorists to move the process along].” T2 141. The State agreed that the police promised to release Rogers regardless of whether he took the test or what the result was. T2 143–44.

Following trial, the court issued a written order denying Rogers’s motion to dismiss. AD 3. It stated that “[n]either party has presented any controlling or persuasive legal authority for the proposition that a defendant and police officers can enter into an enforceable verbal immunity or non- prosecution agreement during the booking process.” AD 3. It found that “there was no meeting of the minds about what the casual phrases ‘free to go’ or ‘you’re good’ meant with respect to the various legal issues at play.” AD 3. Like Torrisi, the court found that Rogers “prolonged the encounter much longer than necessary, ” which “provided valuable time for [his] body to metabolize the alcohol in his system.” AD 3. Based on this finding, it concluded that “[e]nforcement of any kind of verbal immunity or non-prosecution agreement... would be against public policy and virtually every principle of contract law.” AD 3.

Rogers filed a motion for reconsideration. A 18.

Applying contract law, he argued that, “[i]n... context, ” a “reasonable person would not believe that ‘free to go’ and ‘let go’ would only amount to a release from temporary physical detention.” A 23. Rather, he argued, to a reasonable person, those phrases “clearly connote[d] the absence of criminal repercussion and the foregoing of criminal charges.” A 24. This understanding, he noted, was corroborated by Torrisi’s subsequent conduct: giving Rogers a single summons for driving after suspension. A 24. “[U]nder settled notions of fundamental fairness, ” he argued, “the government was bound to uphold its end of the bargain.” A 27.

The State objected. A 28. It argued that Torrisi promised only to release Rogers, not to refrain from prosecuting him. A 28.

At the sentencing hearing, the parties summarized their arguments. S 3–10. The court summarily denied Rogers’s motion for reconsideration. S 10; AD 6. By denying his motion to dismiss and his motion to reconsider that denial, the court erred.

The question of whether an enforceable contract exists is a mixed question of law and fact. Hogan Family Enters. v. Town of Rye, 157 N.H. 453, 456 (2008). The court’s factual findings will be upheld unless they are contrary to the manifest weight of the evidence, but its ultimate legal conclusions are reviewed de novo. State v. Marquis, ___ N.H. ___ (May 4, 2023).

When they decided to arrest Rogers, the police faced an uncertain outcome. Rogers might decline to submit to the breathalyzer. If he did, the police could still charge him with driving while intoxicated, but with only their testimony and the bodycam video as evidence, it was far from certain that a factfinder would find that that evidence proved intoxication beyond a reasonable doubt.

Torrisi, in particular, was confident that, if Rogers took the breathalyzer, it would reveal an alcohol concentration far in excess of. 08 percent. Because an alcohol concentration above. 08 percent constitutes per se evidence of his intoxication, such a result would virtually eliminate the risk of acquittal. To induce Rogers to take the breathalyzer test, Torrisi offered to forego additional charges if Rogers took the breathalyzer and it showed an alcohol concentration below .08 percent. From Torrisi’s perspective at the time, his proposal was advantageous to the State; it was highly likely to secure conclusive evidence of Rogers’s intoxication, and with minimal risk that the State would have to forego any charges.

Rogers, too, faced an uncertain outcome. If he declined to take the breathalyzer test, the factfinder might still find him guilty based on the officers’ testimony and the bodycam video. And if he took the breathalyzer, the result could be used against him, even if it was below. 08.

Rogers was confident that, if he took the breathalyzer, the result would be below. 08 percent. So, from his perspective at the time, Torrisi’s proposal was highly likely to trigger the State’s obligation to forego additional charges, while posing only a small risk of providing the police per se evidence of his intoxication. Believing that Torrisi’s proposal was advantageous to him, he took the breathalyzer test. In short, the parties reached the agreement because each party believed, at the time, that the proposal was beneficial to that party. This is precisely the motivation behind almost all contracts. The parties had different predictions about the future and entered into the agreement so that each could mitigate a risk. Again, there is nothing usual about that; divergent predictions and a desire to mitigate risk are common motivations to enter into agreements such as options, insurance, settlements and arbitration.

The elements of contract formation are “[o]ffer, acceptance and consideration.” Int’l Bus. Machines Corp. v. Khoury, 170 N.H. 492, 500 (2017). Here, the police made an offer — a promise to forego prosecution for any offense other than driving while suspended — and Rogers accepted the offer — by taking the breathalyzer and exhibiting an alcohol content below. 08 percent. This was a “classic... unilateral contract” in which “the offeror makes what is understood to be a promise to be bound upon an offeree’s acceptance as manifested by conduct indicated in the offer.” Panto v. Moore Bus. Forms, 130 N.H. 730, 735 (1988). The police’s promise and Rogers’s performance constituted consideration. See Restatement (Second) of Contracts § 72 (May 2023 Update) (except under circumstances not present here, “any performance which is bargained for is consideration.”). The court refused to find a contract because Rogers did not “present[] any controlling or persuasive legal authority for the proposition that a defendant and police officers can enter into an enforceable verbal immunity or non-prosecution agreement during the booking process.” AD 3.

In general, any two parties, with legal capacity, can enter into binding contracts. See id. §§ 9, 12, ch. 8 intro. note (“In general, parties may contract as they wish, and courts will enforce their agreements without passing on their substance.”). As long as the elements of a contract — offer, acceptance and consideration — are satisfied, the proponent of a contract need not cite “legal authority” sanctioning contracts in a specific factual scenario. Id. § 17 cmt. b (“The governing principle in the typical case is that bargains are enforceable unless some other principle conflicts.”) Rather, the burden is on the opponent to cite some authority forbidding them. See id. §§ 178–96 (setting forth various grounds for finding a contract unenforceable).

No p rovision or doctrine of law prohibits citizens and police officers from entering into binding contracts. See State v. Bruneau, 131 N.H. 104, 109 (1988) (recognizing that the police may enter into unilateral contracts to obtain evidence in criminal investigations). No provision or doctrine of law prohibits parties from entering into contracts during the “booking process.”

The court noted that the agreement here was “verbal.” AD 3 . The statute of frauds does require some types of contracts to be “in writing and signed by the party to be charged.” See RSA 506:1 (contracts for the sale of land); RSA 506:2 (executor’s promise to pay damages out of his own estate; agreements in consideration of marriage not to be performed within a year); RSA 506:2-a (agreements to pay debts discharged in bankruptcy); RSA 506:3 (assignment of wages). Here, however, no provision of the statute of frauds applies.

The court also refused to find a contract because “there was no meeting of the minds about what the casual phrases ‘free to go’ or ‘you’re good’ meant with respect to the various legal issues at play, such as the potential ALS license suspension, driving after suspension on the Virginia license, driving while intoxicated, negligent driving or resisting arrest.” AD 3.

“[A] contract requires a meeting of the minds about the contract's terms: each party must have the same understanding as to the terms of the agreement.” Int’l Bus. Machines, 170 N.H. at 500. “The intent of the parties, ” however, “is determined by an objective standard, ” considering “the objective meaning of the expressed contract terms, ” “and not by actual mental assent.” Id. at 501; see also Restatement (Second) of Contracts, supra § 17 cmt. c (“meeting of the minds” means “manifestation of mutual assent”), § 3 cmt. a (“manifestation of mutual assent” does not imply “mental agreement”). “An objective standard places a reasonable person in the position of the parties, and interprets contractual terms according to what a reasonable person would expect them to mean under the circumstances.” Int’l Bus. Machines, 170 N.H. at 501 (brackets omitted). Courts “consider the situation of the parties at the time of their agreement and the object that was intended thereby, together with all the provisions of their agreement taken as a whole.” Matter of Patient, 170 N.H. 252, 254 (2017). “Undisclosed meanings and intentions are immaterial in arriving at the existence of a contract between the parties.” Int’l Bus. Machines, 170 N.H. at 501 (brackets omitted). Here, any reasonable person in the parties’ position would have understood Torrisi’s proposal as an offer not to prosecute Rogers for any offense other than driving under suspension. Three factors compel this conclusion. First, in interpreting a promise, “an interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect.” Restatement (Second) of Contracts, supra § 203(a). Here, at the time Torrisi first made his offer, Connors had already promised that Rogers would be released that night, regardless of whether he took the breathalyzer test. Connors reiterated this unconditional promise even after Torrisi first made his offer. If Torrisi’s promise were interpreted as merely a promise to release Rogers if he took the breathalyzer and exhibited an alcohol content of less than. 08 percent, then it would have no effect.

Second, Rogers specifically asked Torrisi to clarify whether, if he exhibited an alcohol concentration of less than .08 percent, Torrisi would still prosecute him for driving while intoxicated. He asked, “[O]nce this [ALS form] is signed and I am lead to go, does this go anywhere but here? Where does this go?” BC 1:22:35, BK1 6:55, A 161. Torrisi responded, “What do you mean?” BC 1:22:45, BK1 7:05, A 161. Rogers said, “Meaning that if I blow under... the legal limit... how far does this go?” BC 1:22:45, BK1 7:05, A 161–62. Again, Torrisi responded, “What do you mean?” BC 1:22:55, BK1 7:15, A 162. Rogers said, “[M]eaning that I have to show up in court or meaning that I’m being arrested or what?” BC 1:23:00, BK1 7:20, A 162. Torrisi responded, “[Y]ou were driving suspended so... [y]ou can have a court date for that.” BC 1:23:05, BK1 7:25, A 162. Torrisi then reiterated his offer, “[I]f you’re. 08, that’s a different story. If you’re under, you’re out of here.” BC 1:23:25, BK1 7:45, A 162. The fact that Torrisi told Rogers that, if he took the breathalyzer and exhibited an alcohol concentration below. 08 percent, he “can have a court date for” driving with a suspended license, without mentioning the possibility of prosecution for any other offense, demonstrates that he understood that he was promising not to prosecute Rogers for any other offense. Third, “[w]here an agreement involves repeated occasions for performance... any course of performance... is given great weight in the interpretation of the agreement.” Id. § 202(4). Here, Torrisi’s actions and statements after Rogers took the breathalyzer further confirm that he believed that he had promised not to prosecute for any other crime. Immediately after informing Rogers of the results, he told him, “You still need to take care of that whole suspension thing.” BK4 9:25, A 191. Although Torrisi was clearly upset about the results and accused Rogers of deliberately stalling, he still told Rogers that he was giving him a “warning” for driving while intoxicated and that Rogers was “getting a break.” BK5 6:20, A 192. Torrisi then gave Rogers a summons for driving while suspended, but did not give him a summons for any other offense. If Torrisi believed that his promise permitted him to charge Rogers with any other offense, then he would have given Rogers a summons for other offenses before releasing him. Torrisi’s actions instead confirm that he understood that he had promised not to prosecute Rogers for any other offense.

For all these reasons, this was not a case in which “different people attach different meanings to the same words and conduct.” Id. § 2 cmt. b. Rogers and Torrisi attached the same meaning to Torrisi’s promise: that, if Rogers took the breathalyzer and exhibited an alcohol concentration below a .08, Torrisi would not charge Rogers with any crime other than driving while suspended.

Even if Torrisi did not attach that meaning to his promise, that would not have justified the court’s finding that there was no meeting of the minds. “The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if (a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or (b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.” Id. § 20(2). Here, Rogers did not know — and had no reason to know — that Torrisi believed that, even if Rogers took the breathalyzer and exhibited an alcohol concentration of less than. 08 percent, he could still charge Rogers with other offenses. But Torrisi did know — or had reason to know — that Rogers believed that Torrisi could not. Connors’s unconditional promise to release Rogers regardless of any breathalyzer, his suggestion that a breathalyzer result below. 08 would “prove that [Rogers was] not drunk, ” Torrisi’s failure to articulate his understanding of his promise, even when asked, and Connors’s description of Torrisi’s offer as “a pretty good deal” all had the effect, if not the design, of instilling in Rogers the belief that Torrisi was promising not to charge him with additional offenses if the result was below. 08.

Finally, the court refused to find a contract because, it found, Rogers “was argumentative and uncooperative during the arrest and booking process, ” which “prolonged the encounter much longer than necessary, ” thereby “provid[ing] valuable time for [his] body to metabolize the alcohol in his system.” AD 3. “[U]nder the[se] circumstances, ” the court ruled, “[e]nforcement of any kind of verbal immunity or non- prosecution agreement... would be against public policy and virtually every principle of contract law.” AD 3. The court overstated the delay. Torrisi first approached Rogers’s truck at about 4:15 a.m. T1 11, 46; T2 120. Rogers took the breathalyzer at about 6:00 a.m, an hour and forty- five minutes later. T1 46–47. When a motorist is arrested, a one-to-two-hour delay between operation and breathalyzer test is common. See, e.g., State v. Wong, 125 N.H. 610, 616 (1984) (an hour and a half after collision); State v. Larochelle, 112 N.H. 392, 393 (1972) (an a hour and a half after arrest). This Court has even described a delay of one hour and fifteen minutes as “a reasonable period of time.” State v. Taylor, 132 N.H. 314, 319 (1989).

The court also overstated Rogers’s responsibility for the delay. Rogers placed his hands behind his back less than four minutes after Torrisi initially told him to. Rogers sat down in Torrisi’s cruiser about twenty minutes after Torrisi initially tried to lead Rogers to it. Rogers signed the ALS form seventeen minutes after Torrisi presented it to him. BK0 7:30 (timestamp 5:18:46); BK1 11:30 (timestamp 5:35:20). Torrisi restarted the observation period once, less than two minutes after starting, because Rogers rested his head on his hand. BK2 3:45, A 171; T 46. Thus, of the one-hundred-five minutes that passed between the beginning of the encounter and the breathalyzer test, Rogers was responsible for no more than forty-five minutes, less than half.

The court also erred by focusing only on metabolization of alcohol, and disregarding absorption. “[A] driver’s blood alcohol content increases for a period of time after consumption.” Id. at 320. Only later does the blood alcohol content “begin[] to decrease.” Id. “Extrapolation requires evidence as to when, and in what amounts, the defendant consumed the alcohol prior to driving.” Id. “Without this information... extrapolation of blood alcohol content back to the time of driving becomes an impossible task.” Id. Even if that information is available, “the rate of absorption of alcohol varies considerably between individuals, ” depending at least in part on “the amount of food consumed by the defendant at the time he consumes alcohol.” Id. “One study found that the peak blood alcohol level is reached, after consumption, in anywhere from 14 to 138 minutes.” Id.

Here, there was no evidence as to when, and in what amounts, Rogers consumed alcohol prior to driving. Nor was there evidence as to whether, and in what amount, he also consumed food. Although the court assumed that Rogers’s blood-alcohol concentration must have been higher when he was stopped than when he took the breathalyzer, the evidence does not justify that assumption; it may well have been lower when he was stopped.

The biggest problem with the court’s “public policy” rationale, however, is that it is fundamentally inconsistent with contract law. “[A]n agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or, is at war with the interests of society and is in conflict with the morals of the time.” Mentis Sciences v. Pittsburgh Networks, 173 N.H. 584, 591 (2020). A court’s refusal to enforce a promise on “public policy grounds” may be appropriate “to discourage undesirable conduct” or to avoid “us[ing]... the judicial process in carrying out an unsavory transaction.” Restatement (Second) of Contracts, supra ch. 8 intro. note. The “public policy” doctrine typically applies in certain familiar scenarios: “legislation relevant to such a policy, ” a “restraint on trade, ” an “impairment of family relations, ” a “commission of a tort, ” a “violation of a fiduciary duty, ” “interfering with [the] contract of another, ” “exempting liability for harm caused intentionally, reckless or negligently, ” and “exempting liability for [a] misrepresentation.” Id. §§ 179, 192–95.

The agreement here — an agreement to forego prosecution if a suspect provides evidence, and that evidence tends to exculpate him — does not fall within any of these categories. Neither Rogers taking the breathalyzer nor Torrisi foregoing prosecution were “undesirable conduct, ” and nothing about the agreement — which Torrisi proposed — was “unsavory.”

The court’s “public policy” ruling instead rested on its conclusion, made only with the benefit of hindsight, that because Rogers “prolonged the encounter, ” his bargained-for performance was less than valuable than Torrisi’s promise, rendering the contract unfair. This was not a valid legal ground for refusing to enforce the contract.

“Parties to a contract are generally bound by the terms of an agreement freely and openly entered into.” Mentis, 173 N.H. at 591. They “are free to fix their own valuations, ” Restatement (Second) of Contracts, supra § 79 cmt. c. There is no requirement that “consideration have an economic value equivalent to that of the promise.” Id. § 72 cmt. d. Additionally, “the bargain is to be judged as it appeared to the parties at the time.” Id. § 74 cmt. b. There is no requirement that the promisor ultimately receive “a gain, advantage, or benefit, ” and no requirement that the promisee ultimately suffer “a loss, disadvantage, or detriment.” Id. § 79(a), § 71 cmt. d, illus. 12 (potential benefit constitutes consideration, even if benefit does not later materialize). “Ordinarily, therefore, courts do not inquire into the a dequacy of consideration, ... particularly... when, ” as here, “one... of the values exchanged [is] uncertain.” Id.

§ 79 cmt. c. “Courts cannot improve the terms or conditions of an agreement that the parties themselves have executed or rewrite contracts merely because they might operate harshly or inequitably.” Mentis, 173 N.H. at 591.

Here, Torrisi determined that, notwithstanding the delay, Rogers’s taking the breathalyzer was still sufficiently valuable to justify his conditional promise not to prosecute. Had Torrisi instead determined that the delay reduced the value of the breathalyzer so much that he should rescind or modify his offer, he was certainly free to do so. Torrisi, for instance, could have rescinded the offer without warning. Alternatively, he could have given Rogers a deadline for taking the breathalyzer, after which his promise would no longer be effective. Finally, Torrisi could have lowered the threshold required to trigger his promise by telling Rogers, for instance, “Given the delay, I’ll only forego prosecution if you blow below a.06.”

Torrisi did none of these things. On the contrary, he stood by while Connors reiterated his offer, without modification, just seconds before Rogers signed the form agreeing to take the breathalyzer. BC 1:26:50, BK1 11:10, A 167 (“Do you remember the deal he made you?”). The record makes clear why: Torrisi believed that Rogers was so intoxicated that, notwithstanding the delay, the breathalyzer would still indicate an alcohol concentration above .08 percent.

Torrisi concluded that the value of Rogers’s performance outweighed any detriment from the State’s conditional promise. It was precisely for that reason that Torrisi made the offer, repeatedly reiterated the offer, and, even after the delay, declined to rescind or modify it. Had Torrisi’s hopes been realized, then the State undoubtedly could have used the breathalyzer result to prove that Rogers was per se intoxicated. By excusing the State from its obligations under the bargain merely because Torrisi’s hopes were not realized, or because the court, in hindsight, disagreed with his valuations, the court erred.

In arguing his motion to dismiss after the State rested, Rogers directed the court’s attention to State v. Lindsey, 158 N.H. 703, 704 (2009). In Lindsey, he noted, this Court “specifically address[ed] resisting[-]arrest cases.” T2 138. Lindsey, he noted, “instructs that we should not look to minute sections of what occurs during the course of arrest, but rather look at the arrest as a continuum, as a whole event.” T2 138. “[P]arsing out specific snapshots, ” he argued, is “not... what the case law... says we should be doing.” T2 138; see also State v. Woodburn, ___ N.H. ___ (Mar. 23, 2023) (this Court will find an argument preserved “if the trial court had the opportunity to consider that legal issue or the development of facts that might or might not have supported the specific argument raised on appeal.”).

At the sentencing hearing, the court imposed convictions and sentences on each of the five resisting-arrest complaints. S 27; A 30–42. By imposing more than one conviction and sentence on the resisting-arrest complaints, the court erred.

Part I, Article 16 of the New Hampshire Constitution and the Fifth and Fourteenth Amendments to the United States Constitution protect against double jeopardy. These provisions prohibit, among other things, multiple punishments for the same offense. State v. Woodbury, 172 N.H. 358, 368 (2019); see also State v. Wilson, 169 N.H. 755, 775 (2017) (“the defendant’s four separate convictions, and the sentences therefor, constitute multiple punishments for the same offense”); Rutledge v. United States, 517 U.S. 292, 301–03 (1996) (prohibition on multiple punishments includes multiple convictions); Ball v. United States, 470 U.S. 856, 865 (1985) (“the second conviction, even if it results in no greater sentence, is an impermissible punishment”). Because the five resisting-arrest charges here alleged “more than one violation of a single statutory provision, ” this case presents a “unit of prosecution” issue. Woodbury, 172 N.H. at 368.

Unit of p rosecution is a function of legislative intent. State v. Martinko, 171 N.H. 239, 245 (2018). This court will determine “the gravamen of the offense” “that the legislature intended.” State v. Fogg, 170 N.H. 234, 237 (2017). The question is essentially one of statutory construction. Wilson, 169 N.H. at 773.

Issues of statutory construction are reviewed de no vo. Hynes v. New Hampshire Democratic Party, ___ N.H. ___ (June 1, 2023). This Court will construe the language of the statute “according to its plain and ordinary meaning.” Id. It will “construe all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result.” Id.

It will “consider words and phrases... within the context of the statute as a whole, ” and but it will not “add language that the legislature did not see fit to include.” Id.

RSA 642:2 provides, “A person is guilty of a misdemeanor when the person knowingly or purposely physically interferes with a person recognized to be a law enforcement official... seeking to effect an arrest or detention of the person.” The question is whether the legislature intended the unit of prosecution to be each “arrest or detention, ” or each discrete act of “physical[] interfere[nce].”

This Court has already answered that question. In State v. Smith, 144 N.H. 1 (1999), the defendant was charged with resisting arrest for “running away when ordered to stop.” Id. at 2–3. At trial, however, the evidence showed that the defendant interfered with the arrest in multiple ways. Id. at 2. Specifically, it showed that the defendant (a) pushed the officer, (b) refused to submit when pepper sprayed, (c) retreated into a cellar, and (d) refused to emerge from the cellar. Id. The defendant requested a specific unanimity instruction, but the trial court refused to give it. Id. at 7. The defendant was convicted and appealed. Id. at 2.

On appeal, the defendant argued that the court’s refusal to give the instruction violated his right to a unanimous jury verdict. Id. at 7. The evidence, he claimed, could support findings that he committed separate crimes. Id. Thus, he argued, the jurors may not have unanimously agreed that he committed a particular crime. Id. at 7–8.

This Court rejected the argument that the evidence could support findings of separate crimes. Id. at 8–9. “Even if the jury could have broken down the defendant’s course of conduct into multiple incidents of resisting arrest, ” it held, “the acts the defendant has parsed out... would have been perceived by a conscientious juror as part of the course of events surrounding its commission.” Id. The evidence, this Court held, did not demonstrate “two or more separate criminal acts matching the factual description given a single offense in a charging document.” Id. at 9. While Smith involved a defendant’s request for a jury-unanimity instruction, the fundamental issue is the same: whether, under the statute, multiple acts of physical resistance of a single arrest constitute one crime or multiple crimes. See State v. Doucette, 146 N.H. 583, 593 (2001) (resolving jury-unanimity question by asking whether, if charged with multiple crimes, “the defendant could have been convicted” of multiple crimes); Johnson v. State, 364 S.W.3d 292, 296 (Tex. Crim. App. 2012) (explaining that the same unit-of- prosecution analysis applies to double-jeopardy and jury- unanimity issues).

Courts in several other jurisdictions have held that the unit of prosecution for resisting arrest is “the arrest itself.” Mills v. State, 201 A.3d 1163, 1165 (Del. 2019) (“the General Assembly intended it to be one count per arrest”); accord Wallace v. State, 724 So. 2d 1176, 1181 (Fla. 1998) (the defendant’s “continuous resistance to the ongoing attempt to effect his arrest constitute[d] a single instance” of resisting an officer); State v. Parsons, 636 A.2d 1077, 1079–82 (N.J. App. Div. 1994) (defendant’s conduct, which included multiple attempts to flee and multiple strikes on two police officers, constituted “only one” offense). These courts reason that, because resisting-arrest statutes are placed within chapters relating to obstruction of justice, their primary concern is obstruction of justice, not the physical protection of police officers, which is generally addressed by assault statutes. Mills, 201 A.3d at 1165; Wallace, 724 So. 2d at 1180; Parsons, 636 A.2d at 1082 (“[T]he crime of resisting arrest is still against the system of justice, not against the officer individually”).

Like other jurisdictions, New Hampshire’s resisting- arrest statute appears within a chapter entitled “Obstructing Governmental Operations.” An entirely different chapter, RSA 631, prohibits assaults, and RSA 651:6 provides enhanced penalties for anyone who commits or attempts to commit an assault on a police officer. Because the gravamen of the resisting-arrest statute is the arrest, the arrest is the unit of prosecution.

This Court affirmed this construction of the resisting- arrest statute in Lindsey. There, the defendant was handcuffed and placed on the floor of an apartment. Lindsey, 158 N.H. at 704. He then tried to get up, swung around, and pushed, pulled, kicked and “bull-rush[ed]” the police. Id. at 705. Based on this conduct, he was convicted of resisting arrest. Id. On appeal, he argued that the evidence was legally insufficient because “once he was handcuffed and forced to lie face down on the floor, his detention was complete, and thus his subsequent conduct could not have occurred while the police were seeking to effect his detention within the meaning of the statute.” Id.

This Court rejected that argument. Id. at 706–08. The conduct prohibited by the statute, it stated, “include[es] the entire course of events during which law enforcement officers seek to secure and maintain physical control of an individual.” Id. at 706. Thus, it noted, courts “must... view[] the continuum of events as a whole.” Id. at 707. “[E]ffecting an arrest or detention, ” it held, “is not necessarily an instantaneous event and should not be assessed by parsing out discrete, snapshot moments in time.” Id.

The court here did exactly what this Court, in Lindsey, said that courts “should not” do — it “pars[ed] out discrete, snapshot moments in time.” AD 4 (finding Rogers guilty “on all five charges” alleging restating arrest based on discrete acts, which the court referenced by “time indexes” on the bodycam video). By entering multiple convictions and sentences for a single crime of resisting arrest, the court erred.

To the extent that this issue is not preserved, it constitutes plain error. This Court may reverse for plain and prejudicial errors that seriously affect the fairness, integrity or public reputation of judicial proceedings, State v. Racette, 175 N.H. 132, 141 (2022); Sup. Ct. R. 16-A. Here, the error was plain because this Court, in Smith, already held that the unit of prosecution for resisting arrest is each arrest or detention, not each discrete act of physical interference. The error was prejudicial because the court entered five convictions for a single crime.

Finally, the error seriously affects the fairness, integrity and public reputation of judicial proceedings. See State v. DePaula, 170 N.H. 139, 155 (2017) (pursuant to State’s concession, separate conspiracy convictions for “a single overall plan” violated double jeopardy and constituted plain error). Rogers’s criminal record should reflect his conduct, not the resentment of the officer who happened to arrest him. Rogers’s conduct during the motor vehicle stop here barely justifies one conviction for resisting arrest; it certainly does not justify five.

WHEREFORE, Roy Rogers respectfully requests that this Court reverse.

Undersigned counsel requests 15 minutes oral argument.

The appealed decisions on the first issue are in writing and are included in a separate appendix containing no other documents. The appealed decision on the second issue was not in writing and therefore is not appended to the brief. This brief complies with the applicable word limitation and contains 8, 722 words.

I hereby certify that a copy of this brief is being timely provided to Sam M. Gonyea, counsel for the State, through the electronic filing system’s electronic service.