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State v. Dahood4/8/1999
NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.state.nh.us/courts/supreme.htm
The defendant, Michael Dahood, appeals his conviction for driving while under the influence of intoxicating liquor, second offense, contrary to RSA 265:82-b (1993) (amended 1995, 1996, 1997, 1998), following a jury trial in Concord District Court (Robbins, J.). We reverse and remand.
On August 28, 1996, at approximately 11:15 p.m., Trooper Steven Puckett of the New Hampshire State Police was patrolling Interstate 93 when he observed a car in the breakdown lane. The trooper stopped to see if the motorist, later identified as the defendant, needed assistance. The car's hood was raised, and the trooper noticed that the car engine was emitting smoke. When the trooper asked the defendant what the problem was, the defendant replied that he pulled over because the car lost power as he was driving. During this encounter, the trooper noticed that the defendant would not face him while speaking. Upon asking the defendant to face him, the trooper smelled an odor of alcohol emitting from the defendant's mouth. The defendant also appeared uneasy and his eyes were watery. The trooper asked the defendant if he had been drinking, and the defendant admitted consuming two beers.
In order to ascertain whether the defendant was under the influence of alcohol, the trooper asked the defendant to perform field sobriety tests. The trooper administered a battery of sobriety tests, including the horizontal gaze nystagmus test, the Romberg balance test, the finger-to-nose test, the one-leg stand test, and the walk and turn test. In the trooper's opinion, the defendant failed all five tests. When the trooper again asked the defendant how many beers he had consumed, the defendant increased the number from two to four. The trooper, however, did not question the defendant as to when he began and when he finished drinking the four beers. The trooper placed the defendant under arrest for driving while under the influence of alcohol. In response to post-arrest questioning, the defendant informed the trooper that he weighed 190 pounds. The defendant refused to take a blood test and was not asked to submit to a urine or breath test.
The State called the trooper to testify at trial. The trooper admitted that while knowing the time period of alcohol consumption is important, he was unaware when the defendant consumed the four beers. According to the trooper, he looked for alcohol containers around the defendant's car but was unable to find any. The trooper testified that he "guessed" that the defendant had been drinking that evening. According to the trooper, the only indication he had as to the time period of alcohol consumption was the defendant's performance on the field sobriety tests, the initial contact with the defendant, and the odor of alcohol on the defendant. The trooper, however, admitted that someone who drank earlier in the day might still smell of alcohol.
Also at trial, the State called Dr. Alex Novak to testify as an expert witness. The court concluded that Dr. Novak qualified as an expert in the field of toxicology. With respect to driving while under the influence of alcohol, Dr. Novak testified that a blood alcohol concentration (BAC)
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