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State v. Duffy7/23/2001
Portsmouth District Court
The defendant, Brian Duffy, appeals his conviction in the Portsmouth District Court (Taylor, J.) on one count of driving while intoxicated. See RSA 265:82 (1993) (amended 1995, 1996). He argues that the trial court erred by admitting (1) opinion evidence regarding the horizontal gaze nystagmus (HGN) test and (2) certain of the defendant's statements made during the booking process. We reverse and remand.
The record discloses the following facts. On December 19, 1999, an officer of the Portsmouth Police Department observed the defendant's overturned vehicle near the Portsmouth traffic circle. While talking to the defendant, the officer detected the "faint odor" of alcohol on his breath, and observed that the defendant appeared nervous. Upon questioning, the defendant indicated that he had recently consumed three alcoholic beverages. After waiting ten minutes, the officer conducted the HGN test, the one-legged stand test and the nine-step walk-and-turn test. The defendant's performance on these tests indicated to the officer that the defendant was intoxicated.
The officer arrested the defendant and, after the defendant indicated he would refuse chemical testing, transported him to the police station. While in the cruiser, an officer read the defendant his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). The officer testified that the defendant said that he understood these rights. There is no written waiver evidencing this exchange. There is nothing in the record of an oral waiver.
Once at the station, the defendant was read his rights relative to the administrative license suspension (ALS) statute, and instructed to fill out a form requiring him to write his initials next to several questions.
About ten minutes after being read his Miranda rights in the cruiser, and immediately following the officer's instructions to respond to questions on the ALS form, the defendant was asked by the officer "approximately how much he had had to drink." Responding, the defendant indicated that he had one "Jack and Coke, and then he said that he went to the Rusty Hammer . . . where he said he had three Jim Beam and waters." Prior to trial, the defendant filed a motion in limine seeking to suppress these statements. Without offering any basis for overruling the defendant's objections, the trial court admitted these statements.
Following trial, the defendant was convicted. On appeal, the defendant argues that (1) the trial court erred in admitting evidence of the HGN test without first establishing a foundation for the scientific validity of that test and (2) that his statements made during the booking process should have been suppressed because the State did not prove that he knowingly and voluntarily waived his Miranda rights. We find the defendant's second argument dispositive of this case, and address it first.
The defendant contends his statements made during the booking process should have been suppressed under both the State and Federal Constitutions. "Because our State Constitution affords greater protection to a criminal defendant than the Federal Constitution in requiring the State to prove the voluntariness of the defendant's statements beyond a reasonable doubt rather than by a preponderance of the evidence, we need not undertake a separate federal analysis." State v. Ford, 144 N.H. 57, 60 (1999); see also N.H. CONST. pt. I, art. 15.
We must begin our inquiry with the presumption that a defendant did not waive his rights. See State v. Gravel, 135 N.H. 172, 178 (1991). A waiver need not be express to be valid. See Torres, 130 N.H. at 343. Rather, "we must ascertain whether, under
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