 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Duffy7/23/2001
ed to answer ALS form questions and standard booking questions immediately prior to being asked how much he drank that evening, he may very well have thought he was also required to answer the officer's question. There are no facts or findings to refute such a claim. While the evidence suggests that the defendant may have understood his rights, no fact whatsoever establishes that he voluntarily waived his right to remain silent before he answered the police officer's question. We conclude that it was against the manifest weight of the evidence to find that the State proved beyond a reasonable doubt that the defendant voluntarily and intelligently waived his rights. Accordingly, we reverse and remand.
The defendant also argues that the results of the HGN test were improperly admitted. Because this issue is likely to arise on remand, we will address it. See State v. Frost, 141 N.H. 493, 498 (1996). New Hampshire Rule of Evidence 702 requires that opinion evidence, based upon scientific principles, must meet a threshold level of reliability to be admissible. See State v. Hungerford, 142 N.H. 110, 121 (1997).
This court has never decided if the HGN test is based on scientific principles within the meaning of Rule 702. The trial court did not make any preliminary determination in this regard. Rather, with respect to the evidence, the court noted, "it's very, very subjective, in this Court's opinion . . . it's a question of what weight I give it, I guess."
On remand, if the State intends to offer evidence of the HGN test, it should note that this court recently ordered, in a factually and procedurally similar case, that the Concord District Court hold a hearing regarding the reliability of the HGN test and whether Rule 702 requires preliminary findings prior to its admission. See State v. Dahood, No. 99-510 (N.H. June 5, 2001).
Reversed and remanded.
BROCK, C.J., and BRODERICK and DALIANIS, JJ., concurred.
|