Argued February 19, 2015.
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
6th Circuit Court -- Hillsborough District Division.
Joseph A. Foster, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Law Offices of Robert J. Moses, of Amherst ( Robert J. Moses on the brief and orally), for the defendant.
CONBOY, J. DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.
The defendant, Alex Ducharme, appeals his conviction, following a bench trial, for driving under the influence of intoxicating liquor (DUI). See RSA 265-A:2 (Supp. 2012) (amended 2012). He argues that the Circuit Court ( Stephen, J.) erred when it: (1) ruled that the police had probable cause to arrest him for DUI; (2) concluded that a valid arrest for DUI had occurred and, therefore, that the implied consent statute applied; (3) admitted evidence obtained after he had invoked his Miranda rights and failed to consider the " confusion doctrine" ; and (4) found the evidence sufficient to convict him of DUI. We affirm.
The testimony at trial established the following sequence of events. On March 5, 2011, the bouncer at Rednecks Bar and Grill in Antrim was called outside at around midnight to deal with an altercation that had originated in the bar and then " spilled ... into the parking lot." The police were called and an officer from the Antrim Police Department was dispatched to the bar. When the officer arrived, he first met with the bouncer and then made contact with one of the people involved in the altercation.
While he was outside, the bouncer saw the defendant drive into the bar's parking lot and park. The defendant got out of the vehicle from the driver's side and then " got into an altercation with another" man. The bouncer told the defendant and the other man several times to " back down." The bouncer testified that he could smell alcohol on the defendant. When " neither party would back down," the bouncer went to the officer for assistance. The officer approached the men, and then, to separate him from the situation, escorted the defendant back to his cruiser.
Once they were at the cruiser, the officer noticed that the defendant's " eyes were bloodshot and red." He also noticed " a distinctive odor of alcohol coming from [the defendant's] breath," and that the defendant " was having trouble with his balance." While the officer was talking with the defendant, another fight broke out in the parking lot. The officer handcuffed the defendant and placed him in the back of the cruiser so that the officer could " figure out exactly what was going on." The officer left the defendant in the cruiser and went to separate the two individuals involved in the latest fight. When he returned to his cruiser, he arrested the defendant for simple assault, after which he " detected a distinct odor of alcohol" in the cruiser that had not been there before he placed the defendant in the cruiser. Before the officer transported the defendant to the Hillsborough police station, he spoke with the bouncer, who informed the officer that he had observed the defendant drive into the parking lot.
At the police station, the officer brought the defendant to the booking room and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant made clear that he understood his rights and that he did not wish to speak with the officer or answer questions without a lawyer present. The officer then read to the defendant the Administrative License Suspension (ALS) form. See RSA 265-A:4 (Supp. 2012) (amended 2012). The first line of the ALS form states: " You have been arrested for an offense arising out of acts alleged to have been committed while you were driving under the influence of alcohol or drugs." The officer asked the defendant if he understood what had been read to him and the defendant said that he did not. The officer asked the defendant what he did not understand and the defendant simply repeated that he did not understand.
The officer then " explained everything to [the defendant] again." He told the defendant " that [he] had been called ... to Rednecks Bar & Grill for a past-tense assault" and that " [w]hile taking that report [he] had witnessed [the defendant] assault another male." He explained that he had " witness statements stating that [the defendant] drove away from Rednecks and then drove back, and that's where we were at ... that moment." The officer testified that the purpose of this explanation was to tell the defendant " why I ...