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Saviano v. Director8/26/2004
Rockingham
Argued: June 17, 2004
The plaintiff, Michael Saviano, appeals the order of the Superior Court (T. Nadeau, J.) affirming the decision of the New Hampshire Department of Safety hearings officer upholding the suspension of his driver's license by the defendant, the director of the division of motor vehicles. We affirm.
The record supports the following facts. On June 17, 2003, Sergeant Fisher of the Pelham Police Department, while off-duty and driving his own private vehicle, observed the plaintiff's vehicle crossing the center and fog lines and exceeding the speed limit on Marsh Road in Pelham. He followed the plaintiff and radioed dispatch to request that a marked cruiser respond to a vehicle "operating erratically."
Sergeant McDowell and Officer Stahl responded in separate cruisers and pursued the plaintiff with their emergency lights and sirens activated. The plaintiff continued to drive erratically and failed to stop. Sergeant McDowell pulled beside him and edged the plaintiff's vehicle to the side of the road. As the plaintiff came to a stop, he "swerved to the side of the road and then swerved back on the road just missing mailbox."
Sergeant McDowell and Officer Stahl ordered him out of his car and he refused. After the order was repeated numerous times, Officer Stahl opened the driver's door and ordered the plaintiff to step out. The plaintiff attempted to shut the door, but the officer successfully forced him out of the car. He then arrested him for disobeying a police officer because he failed to stop when signaled to do so. The plaintiff was placed in Officer Stahl's cruiser for transport to the police station. While en route, the officer detected a strong odor of alcohol emanating from the plaintiff.
At the police station, Officer Stahl read him a modified Administrative License Suspension (ALS) or Implied Consent form because he was under arrest for disobeying a police officer and the officers suspected that he had been driving while intoxicated. Section I, lines 1-6 of a standard ALS form read:
1. You have been arrested for an offense arising out of acts alleged to have been committed while you were driving under the influence of alcohol or drugs.
2. You are being asked to submit to a test or tests, at the discretion of a law enforcement officer, in order to determine the alcohol or drug concentration in your system. You may be asked to perform a breath, blood or urine, or physical test, or any combination of these.
3. You have the right to a similar test or tests of blood, urine or breath taken by a person of your own choosing at your own expense. Upon your request, you will be given the opportunity for such additional test(s). You also have the right to obtain a portion of our sample of your breath, blood, or urine for testing at your own expense.
4. If you submit to a blood, urine or breath test which shows an alcohol concentration of 0.08 or more (or if you are under age 21, of 0.02 or more), your New Hampshire driver's license/operating privileges or non-resident operating privilege or right to drive in this state will be suspended.
5. If you refuse to take a test or tests, the refusal can be admissible in court.
6. If you refuse to submit to a test requested by the officer, your New Hampshire driver's license/operating privileges or non-resident operating privilege to drive in this state will be suspended.
In Section I of the modified ALS form read to the plaintiff, lines 3 and 4 had a line through them and lines 1 and 2 had been altered to read:
1. You have been arrested for an offense of D
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