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State v. Coombs4/16/2003
Portsmouth District Court
Argued: February 6, 2003
The defendant, Thomas D. Coombs, appeals his conviction after a bench trial in the Portsmouth District Court (Taylor, J.) for driving while intoxicated (DWI), RSA 265:82 (Supp. 2002), and failing to use required turn signals, RSA 265:45 (1993). Coombs argues that the admission of his blood alcohol test results through the testimony of a certifying scientist under RSA 265:90 (Supp. 2002) violated his rights under the Confrontation Clause of Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment of the U.S. Constitution. We affirm.
The facts are not in dispute. On July 15, 2001, at about 1:00 a.m., Coombs was driving north on Route 16 in Portsmouth. Trooper James Legace, traveling behind Coombs, noticed that he changed lanes without signaling. Legace pulled Coombs over, and after administering several field sobriety tests, arrested him for DWI. Coombs subsequently gave his consent for a blood alcohol test, which was conducted and sent to the State Health Laboratory. The testing, conducted pursuant to RSA 265:84 (Supp. 2002), revealed a blood alcohol concentration of 0.11.
Before trial, Coombs filed a timely notice under RSA 265:90, I, requesting that the State produce the scientist who certified the blood test. This scientist, Dr. Alex Novak, testified at trial about the laboratory's chain-of-custody and general testing procedures. According to Dr. Novak, the lab conducts three levels of review: first, an analyst tests the sample and reviews the result; then, a supervisor reviews the analyst's work; and, finally, Dr. Novak certifies the result. On cross-examination, Dr. Novak admitted that he did not test the specific sample involved in this case, nor could he verify whether the analyst in this particular case used the correct procedures. Nevertheless, the court allowed Dr. Novak to testify about the blood alcohol concentration contained in the lab's report over the defendant's objection.
The court found Coombs guilty of DWI and failing to use required turn signals. On appeal, Coombs argues the admission of the blood test result violated his right to confront adverse witnesses under the State and Federal Constitutions because the State did not grant him the opportunity to cross-examine the analyst who actually tested the blood. We consider the defendant's arguments under the State Constitution first. See State v. Ball, 124 N.H. 226, 231 (1983). Because the Federal Confrontation Clause affords no greater protection than the State Confrontation Clause, we only undertake a state analysis, reviewing federal cases for guidance. See State v. Spaulding, 147 N.H. 583, 588 (2002); Lilly v. Virginia, 527 U.S. 116, 124-25 (1999) (stating Federal Confrontation Clause standard for admission of hearsay).
The legislature has established the following rules for the admission of blood alcohol testing:
Any person who is arraigned on a charge arising under RSA 265:84 shall file notice in said court, within 30 days immediately following the receipt by the person of the results of any alcohol concentration test administered to such person, requiring the attendance of the person who conducted the breath test, or in the case of any other chemical test, the certifying scientist. Failure to file notice shall be deemed a waiver to require attendance of the person who conducted the breath test, or in the case of any other chemical test, the certifying scientist at the trial. The official report of the test issued pursuant to RSA 265:84 shall be deemed conclusive evidence of the conduct and result of said test.
RSA 265:90, I.
The statute creates an exc
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