Argued: February 14, 2019
J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the memorandum of law and orally), for
Christopher M. Johnson, chief appellate defender, of Concord,
on the brief and orally, for the defendant.
a bench trial on stipulated facts, the defendant, Jean Claude
Mfataneza, was convicted of aggravated driving while
intoxicated. See RSA 265-A:3 (2014). On appeal, he
argues that the Trial Court (McNamara, J.) erred in
concluding that RSA 265-A:8 (2014) (amended 2016) requires
only that the Administrative License Suspension (ALS)
warnings be reasonably conveyed by reasonable methods in
order to satisfy the statute and be admissible at trial,
rather than that the warnings be subjectively understood by
the individual driver. We affirm.
pertinent facts are as follows. On December 12, 2016, the
defendant was arrested by Concord police for driving while
intoxicated. Upon arriving at the police station, the
defendant was placed in a holding cell. At that point, an
officer twice asked the defendant, who had emigrated from the
Democratic Republic of Congo and who is fluent in Kinyarwanda
and Swahili, what language he spoke, to which he replied
English. The officer testified that she knew the defendant
and had dealt with him frequently - at least once a month.
The officer explained that the defendant "usually
understands what [she is] saying" and will speak with
her in English even when he is intoxicated. However, because
the defendant could not read English, the officer read the
ALS form aloud to him. The officer read each line to the
defendant, pausing after each to ask the defendant if he
understood. The defendant affirmatively nodded his head after
each line was read to him, signed the portion of the form
stating that he was informed of his rights, and agreed to
testing. According to the officer, at no point during this
interaction did the defendant indicate that he was having
difficulty understanding her, and she observed nothing to
indicate that he could not understand her.
to trial, the defendant moved to exclude the admission of the
ALS form and corresponding breathalyzer test results from
evidence, arguing that he did not sufficiently understand the
rights outlined in the form because of his limited
proficiency with the English language. The defendant took the
position that, as with Miranda warnings, a person
must knowingly, voluntarily, and intelligently consent to
testing in order for the results to be admissible in a trial.
He argued that his consent did not meet this standard
because, due to the language barrier, he was unable to
understand the ALS warnings read to him, and therefore could
not consent to testing. Testifying mostly through an
interpreter, the defendant explained that he signed the form
because in the Congo, where he is from, people are required
to do what police officers tell them to do. Following an
evidentiary hearing on the motion, the trial court rejected
the defendant's argument. After considering the different
approaches used by courts in other jurisdictions, the court
adopted what it characterized as the "more reasoned
approach," which requires only that the officer
reasonably convey the warnings in a reasonable manner.
Applying that standard to the facts of the case, the trial
court concluded that, given the officer's prior history
with the defendant and the defendant's statements to her
that he spoke English, the officer conveyed the warnings in a
reasonable manner. The defendant was thereafter convicted,
and this appeal followed.
defendant argues that the trial court erred in adopting the
reasonable methods approach as a basis for denying his motion
in limine. According to the defendant, New Hampshire
law requires that the driver understand the ALS warnings,
and, therefore, that it must be established that "no
deficit in English-language fluency caused the driver to fail
to understand the statements on the ALS form." It
follows, in the defendant's view, that "to discharge
their obligations under RSA 265-A:8, the police must read (or
provide in writing) the ALS warnings in a language the driver
the issue on appeal requires us to determine the proper
interpretation of RSA 265-A:8. See State v. Balch,
167 N.H. 329, 332 (2015). "The interpretation of a
statute is a question of law, which we review de
novo." Id. "We are the final arbiters
of the legislature's intent as expressed in the words of
the statute considered as a whole." Id.
"When we interpret a statute, we look first to the
statute's language, and, if possible, construe that
language according to its plain and ordinary meaning."
Id. During this exercise, we "can neither
ignore the plain language of the legislation nor add words
which the lawmakers did not see fit to include."
State v. Cobb, 143 N.H. 638, 644 (1999) (quotation
omitted). Thus, "[w]e do not read words or phrases in
isolation, but in the context of the entire statutory
scheme." Balch, 167 N.H. at 332. "Our goal
is to apply statutes in light of the legislature's intent
in enacting them, and in light of the policy sought to be
advanced by the entire statutory scheme." Id.
Where, as here, the issue is one of first impression in New
Hampshire, we further look to other states'
interpretations of similar statutory provisions for guidance.
Cf. State v. Berrocales, 141 N.H. 262,
263-64 (1996) (looking to other states' interpretations
of similar constitutional provisions for guidance in a matter
of first impression).
to New Hampshire's Implied Consent Law, a motor vehicle
operator "shall be deemed to have given consent" to
the tests it describes when "arrested for any offense
arising out of acts alleged to have been committed while the
person was driving . . . a vehicle . . . while under the
influence of intoxicating liquor or controlled drugs,"
provided the tests are "administered at the direction of
a law enforcement officer . . . having reasonable grounds to
believe the person to have been driving . . . while under the
influence of intoxicating liquor or controlled drugs."
RSA 265-A:4 (Supp. 2018); see State v. Jenkins, 128
N.H. 672, 675 (1986) (noting that "[t]he act of taking
the test is voluntary because the very act of driving on New
Hampshire's public roads implies consent to take the
have explained in the past, "the purpose of the statute
is to prevent the operation of cars by persons under the
influence of intoxicating liquor," State v.
Slater, 109 N.H. 279, 280 (1969), as well as to ensure
"that an arrested individual makes an informed decision
concerning whether or not to submit to a blood alcohol
content test," State v. Dery, 126 N.H. 747, 752
(1985). Stated differently, "[t]he major premise of the
implied consent law is that it will aid the prosecution of
the guilty and the protection of the innocent."
State v. Gallant, 108 N.H. 72, 76 (1967) (quotation
achieve this purpose, the statute "imposes a positive
duty on the officer to do three equally important
things before taking the test." Dery, 126 N.H.
at 752 (quotation and ellipsis omitted). Pursuant to RSA
265-A:8, prior to testing an individual, an officer must:
(a) Inform the arrested person of his or her right to have an
additional test or tests of his or her blood made by a person