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State v. Demond-Surace

Supreme Court of New Hampshire

May 20, 2008

State of New Hampshire
v.
Marilyn Demond-Surace

UNPUBLISHED OPINION

The State appeals an order of the superior court granting the motion to suppress filed by the defendant, Marilyn Demond-Surace. The State argues that the trial court erred in finding that the defendant's consent to a blood test was vitiated after a police officer read an inapplicable administrative license suspension (ALS) form to her that warned that she would lose her license if she refused. We affirm.

When reviewing a trial court's order on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous; our review of the trial court's legal conclusions is de novo. State v. Steimel, 155 N.H. 141, 144 (2007).

The parties do not dispute that: (1) at some point, a police officer advised the defendant that if she did not consent to the blood test, she would lose her license; and (2) this statement was not accurate. In its ruling, the trial court assumed without deciding that the defendant had given her consent prior to the officer reading the ALS form to her. Although there were two blood draws, the State asserts that only the first is relevant for purposes of this appeal. The State argues that the trial court erred in finding that the "misinformation" conveyed by reading the ALS form invalidated the defendant's consent; rather, according to the State, when viewed under a totality of the circumstances, the defendant's consent was valid when the blood was drawn.

A voluntary consent free of duress and coercion is a recognized exception to the need for both a warrant and probable cause. State v. Goupil, 154 N.H. 208, 227 (2006). The burden is upon the State to prove by a preponderance of the evidence that the consent was free, knowing and voluntary. Id. Voluntariness is a question of fact, based upon the totality of the circumstances; we will affirm the trial court's ruling unless it is unsupported by the record. Id.

As the State acknowledges, "a defendant's consent to search may be revoked up until the time her blood has actually been taken." See State v. Watson, 151 N.H. 537, 541 (2004). The State also concedes that "when consent to a blood draw is obtained by the threat of consequences that have no justification in law, the consent cannot be said to be voluntary."

This is not a case where the police officer failed to disclose certain information, see, e.g., State v. Osborne, 119 N.H. 427, 433 (1979); rather, in this case, the officer advised the defendant that she would lose her license if she did not provide the sample.

Contrary to the State's assertion, the trial court need not have determined whether the defendant had consented to the test prior to the reading of the ALS form. In assuming that she had originally consented, the trial court gave the State a more favorable ruling than the record might support; it then found that the ensuing misinformation deprived the defendant of her ability to maintain a knowing and voluntary waiver of her rights. In assessing the totality of the circumstances, the trial court cited: (1) the ALS forms that stated that her license would be suspended if she refused; (2) the police officer had possession of the defendant's driver's license and vehicle registration before he read her the ALS forms and retained them until after completion of the blood draws; and (3) testimony by the police officer at the suppression hearing that he "didn't give [the defendant] much of a choice" concerning the first blood draw. Because the record supports the trial court's ruling, we affirm. See Goupil, 154 N.H. at 227.

Affirmed.

DALIANIS, DUGGAN and GALWAY, JJ., ...


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