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Jacobs v. Director5/16/2003
Rockingham
Argued: March 12, 2003
The defendant, the director of the division of motor vehicles (division), appeals an order of the Superior Court (McHugh, J.) vacating the driver's license suspension imposed on the plaintiff, Lori Jacobs. The division argues that the trial court improperly considered the validity of the underlying traffic stop and wrongly decided the propriety of the division's drawing an adverse inference from Jacobs' failure to testify. We reverse and remand.
The trial court found the following facts. On September 22, 2001, Officer John Petrosh of the Exeter Police Department received a dispatch from the State police. The dispatch advised him that an unidentified cell phone caller had complained of reckless driving by a certain vehicle, which the caller identified by its color, location, and vanity license plate. Shortly thereafter, Officer Petrosh spotted this vehicle. He briefly observed the vehicle, but did not note any violations of the law. Officer Petrosh elected to pull it over.
The driver, Lori Jacobs, was cooperative, and exhibited no coordination problems or difficulty in producing her registration. Officer Petrosh, however, observed that her face was flushed, her speech was slurred, and that an odor of an alcoholic beverage was present. He requested that she perform several field sobriety tests. Jacobs refused because "her friends told her she shouldn't take the tests." Officer Petrosh arrested Jacobs for driving under the influence .
Because Jacobs had refused to take a chemical test after her arrest, and had a prior refusal on her motor vehicle record, the division automatically suspended her driver's license under RSA 265:92, I (b)(1) (Supp. 2002). Jacobs requested an administrative license suspension (ALS) hearing before the division of motor vehicles pursuant to RSA 265:91-b (Supp. 2002). At the hearing, Officer Petrosh testified and submitted a copy of his arrest report. Jacobs did not testify. The hearings examiner concluded that the State met its burden of proving that Officer Petrosh had "reasonable grounds to believe the arrested person had been driving . . . while under the influence." RSA 265:91-b, II(a) (Supp. 2002). In the decision, the examiner found that "[Jacobs] did not testify in this hearing. The negative inference that not testifying in a civil proceeding warrants against her is made concerning the material facts at issue here." Thus, the examiner upheld the suspension of Jacobs' license.
Pursuant to RSA 263:75, I (Supp. 2002), Jacobs appealed this decision to the superior court. The court determined that the examiner erred in two respects relevant to this appeal. First, the court found that the examiner had no basis from which to draw a negative inference from the defendant's failure to testify at the ALS hearing. Second, the court ruled that the examiner failed to consider the validity of the underlying traffic stop. Because the court concluded that the officer "did not have reasonable articulable suspicion to warrant a stop of [Jacobs'] vehicle," it vacated the suspension of Jacobs' license.
On appeal, the division does not address the validity of the underlying stop, but instead argues that the issue is not relevant in a license suspension proceeding. The division also argues that the ALS examiner did not commit reversible error in drawing a negative inference from Jacobs' failure to testify. We consider each issue in turn.
In an appeal to the superior court from an ALS hearing, the plaintiff has the burden to show that the order upholding the suspension was clearly unreasonable or unlawful, and all findings of fact on questions properly before the hearin
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