State v. BerryState v. Berry
- Reporters:
- , ,
- Before:
- King
Lead Opinion
The issue in this case is whether the results of a blood test which was taken over the defendant’s objection while he was under arrest for driving while under the influence of intoxicating liquor and after grounds for a charge of negligent homicide had arisen must, by virtue of
*326An accident occurred at approximately 1:15 a.m. on October 6, 1979, involving a vehicle driven by the defendant and another vehicle in which there were three persons. The defendant was arrested for driving while under the influence of intoxicating liquor.
At 3:25 a.m., after learning that one of the injured persons had died, the police again asked the defendant to submit to a blood test. The defendant, who was then passing in and out of consciousness, repeated his refusal. Shortly thereafter, the police learned that the second of the three accident victims had died. Because it appeared that the defendant might be charged with negligent homicide, the police had a doctor take a sample of the defendant’s blood without his consent.
The defendant was eventually charged with negligent homicide.
Under the provisions of the State’s implied consent law, any person who operates a motor vehicle upon the public highways is deemed to consent to chemical or other tests of his blood, urine or breath for the purpose of determining the alcohol or controlled drug content of his blood if he is arrested for any offense arising out of acts alleged to have been committed while he was driving a motor vehicle while intoxicated.
It is undisputed that the defendant expressly refused to consent to the chemical test of his blood on two separate occasions and that the police had a sample of his blood extracted and tested *327against his will. Consequently, the only issue is whether the statutory language “none shall be given” means “none shall be given” or something else. In this State, statutory language is given its plain and common usage unless the language has a technical or otherwise peculiar meaning. Sant Bani Ashram, Inc. v. N.H. Dep’t of Empl. Security, 121 N.H. 74, 77, 426 A.2d 34, 36 (1981);
The State’s reliance upon Schmerber v. California, 384 U.S. 757 (1966), is misplaced. The warrantless taking of blood from a person under arrest without his consent is undoubtedly constitutional, and many cases have so held. None of these cases, however, dealt with a situation in which a statute plainly indicates that a blood sample shall not be taken if the subject refuses to consent. See State v. Riggins, 348 So. 2d 1209, 1211 (Fla. Dist. Ct. App. 1977), cert. dismissed, 362 So. 2d 1056 (1978).
The State’s assertion that the legislature could not have intended to give up the right to obtain chemical tests under the rule laid down in Schmerber or pursuant to a proper warrant is unpersuasive. Courts in other states have recognized that the legislature can confer upon individuals a statutory right to withhold consent even though there is no such constitutional right. See State v. Brean, 136 Vt. 147, 151-52, 385 A.2d 1085, 1088 (1978); State v. Stevens, 252 A.2d 48, 60 (Me. 1969). Furthermore, to substitute our understanding of what the legislature intended for the express language of the statute in this way would significantly interfere with the legislative prerogative, and we therefore will not look behind the express, unambiguous language of the statute. If the contours of criminal statutes are to be determined by the subsequent development of constitutional law, it seems superfluous to enact statutes at all.
The State argues that, assuming arguendo that
Finally, we reject the State’s assertion that
In conclusion, we note that the exclusion of evidence of chemical test taken in violation of
Remanded.
Grimes, C.J., and Bois, J., dissented; the others concurred.
Dissenting Opinion
dissenting: It is quite obvious that the sole purpose of
In 1965, when the statute was first enacted, considerable doubt existed as to whether, under the fourth and fifth amendments to *329the Constitution of the United States, the police could obtain a blood sample from an unwilling subject incident to an arrest. Schmerber v. California, 384 U.S. 757, 761 (1966), decided after the enactment of the implied consent law, held that a blood sample was not testimonial in nature and therefore not within the protection of the privilege against self-incrimination. The Supreme Court also held that the warrantless taking of blood from a person under arrest without his consent is not proscribed by the fourth amendment if there is probable cause to believe that the tests will show intoxication, if exigent circumstances exist which will excuse the obtaining of a warrant, and if the test is performed in a reasonable manner. Id. at 770-72. These conditions were satisfied in Schmerber. Thus, it became clear that the subject’s consent to a test for blood alcohol was not necessary if the requirements of the fourth amendment were met. But the purpose of the statute was to obtain consent to tests which could not constitutionally be taken without consent.
There is nothing in the language of the statute or its legislative history which gives the slightest indication that the legislature intended to restrict or bar the taking of blood alcohol tests without the individual’s consent when the State was not prohibited from doing so by the State and Federal Constitutions.
It is of course true that
Even assuming that
Although we adhere to the exclusionary rule in cases of constitutional violations, we would not impose it in this case for a mere statutory violation absent a legislative mandate. We would remand the case for a hearing to determine whether the taking of the blood sample in this instance violated any constitutional provision and would exclude the evidence only if it did.
The fact that the court is so evenly divided as to the legislative intent clearly indicates a need for legislative clarification. Of course, the legislature can, if it wishes, permit tests without consent in cases where they are allowed by the State and Federal Constitutions and can also provide for the admission of the results obtained without consent. We, of course, express no opinion as to what should be done but only point out the need for a clearer expression of the legislature’s intent.