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State v. Nickerson9/25/2001
tion or from informing the DMV of the defendant's refusal to be tested. In the instant matter, the defendant concedes that the results of the blood test introduced at trial were not obtained at the request of the State trooper. Therefore, under RSA 329:26, the State properly obtained and used the defendant's blood test as evidence.
Finally, the defendant argues that RSA 265:86 (Supp. 2000) and due process give rise to an affirmative obligation on the State to provide a defendant with a second sample for independent testing whenever a person submits to a blood, urine or breath test that is used for the purpose of determining blood alcohol content.
Pursuant to RSA 265:86, the obligation to provide defendants with a sample for their own testing "arises only when a test is administered at the direction of a law enforcement officer." State v. Martin, 125 N.H. 672, 675 (1984). As noted above, the defendant in the present matter concedes that the test was not administered at the direction of the State trooper.
Similarly, a defendant's constitutional guarantees of due process may not be violated without the involvement of a State actor. The Due Process Clause does not apply to private actors. See, e.g., State v. Carroll, 138 N.H. 687, 691 (1994) (Due Process Clause of the New Hampshire Constitution applies only to State actors); Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (noting that the Fourteenth Amendment does not apply to private actors); State v. Chapman, 135 N.H. 390, 400 (1992) (no violation of the Fourteenth Amendment without State action). The defendant has produced no evidence that the physician was a State actor at the time the defendant's blood was obtained.
Affirmed.
BROCK, C.J., and BRODERICK, NADEAU and DALIANIS, JJ., concurred.
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