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State v. Stern4/5/2004
The defendant, Shirley Ann Stern, appeals her convictions by a jury for negligent homicide, see RSA 630:3 (Supp. 2003), and aggravated driving while intoxicated, see RSA 265:82-a (Supp. 2003), and her sentence on the negligent homicide charge. She argues that: (1) the Superior Court (Fauver, J.) erroneously denied her motion to suppress three blood samples; and (2) the Superior Court (T. Nadeau, J.) impermissibly amended her sentence to correct an error. We affirm.
The following facts were either found by the trial court or are evident from the record. On the evening of July 31, 2001, the defendant and her elderly mother were involved in a single vehicle accident on Bay Road in Durham. Durham Police Officers Gabe Tarrants and Frank Weeks and Detective Michael Bilodeau were dispatched to the scene at 9:39 p.m.
When the officers arrived, they found the defendant's vehicle lying on its passenger side facing north in the southbound lane. They saw no other vehicles on the road, no debris and no skid marks. The weather was clear. The defendant was tending to her mother whose arm was pinned underneath the vehicle. The defendant's mother appeared to be losing consciousness.
The defendant and her mother were extricated from the vehicle and taken to Exeter Hospital. Detective Bilodeau instructed Officer Weeks to obtain a blood sample from the defendant at the hospital. See RSA 265:93 (Supp. 2002) (amended 2003).
The defendant arrived at the hospital at approximately 10:00 p.m. Officer Weeks informed her that he was required to obtain a blood sample from her. See id. Before this blood sample was taken, Officer Weeks began questioning her about the accident. He noticed that her speech was thick-tongued and slurred, she frequently mumbled, and her breath smelled of alcohol. He also observed that she behaved erratically. As the officer testified at the suppression hearing:
She kept constantly asking [about her mother]. I noticed her responses were varied. Sometimes when she talked to the doctor, she started crying and screaming. Sometimes she would stay quiet, think for a moment, then ask the question again. "What's going on with my mother?" She frequently just shouted out, "Why won't you tell me what's going on with my mother?" Sometimes she just spoke randomly to no one in particular.
At Officer Weeks' direction, hospital staff drew the first blood sample at 11:10 p.m. After this sample was drawn, Officer Weeks telephoned Deputy Chief Randy Kelly and informed him of his observations. Officer Weeks arrested the defendant for aggravated driving while intoxicated at 11:30 p.m. and obtained her consent for additional blood tests. See RSA 265:82-a.
Hospital staff drew a second blood sample from the defendant at 12:44 a.m. Sergeant Frank Daly, who had arrived at the emergency room to assist Officer Weeks, observed this. Sergeant Daly testified that he then called Deputy Chief Kelly to let him know "where [we] were in the process." He testified that he told Deputy Chief Kelly that he "felt that [the defendant] may have been drinking." At some point, he administered a Horizontal Gaze Nystagmus test. He testified that he told Deputy Chief Kelly that the defendant's eyes were "watery." He also testified that when he drew close to her, he could smell alcohol.
Deputy Chief Kelly relayed information he received from Officer Weeks and Sergeant Daly to Detective Bilodeau, who used it to draft an application for a search warrant. Detective Bilodeau presented the application to Justice Taube, who issued it at 1:15 a.m. Thereafter, hospital staff drew two more blood samples at 1:55 a.m. and 2:55 a.m., respectively.
Before trial, the defendant moved to su
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