Opinion
No. 7243
Decided December 31, 1975
1. The purpose, object, and intention of the legislature in the enactment of RSA 630:3 II on negligent homicide by a person under the influence of intoxicating liquor being clear, the mistaken reference to section III of the statute as the subsection defining a propelled vehicle must be disregarded and the reference must be read so as to refer to the proper section number.
2. The results of a breathalyzer test may be used in the prosecution of offenses other than violations of RSA 262-A:62 (Supp. 1975).
3. A breathalyzer test being a scientifically reliable procedure, the results of the test may prove to be of aid to a judge or jury in the prosecution of offenses such as the instant case.
Warren B. Rudman, attorney general, Thomas D. Rath and Gregory Smith, assistant attorneys general (Mr. Smith orally), for the State.
Bell Kennedy and H. Neil Berkson (Mr. Berkson orally) for the defendant.
The issues presented in this transfer are whether the complaint alleged a criminal offense under RSA 630:3 II as it was written at the time of the alleged offense, and whether the results of a breathalyzer test are admissible in evidence to prove the offense of negligent homicide under RSA 630:3 II. These questions were raised in a motion to quash and motion to suppress. All questions of law were transferred without ruling by Johnson, J.
The defendant was indicted by a grand jury on September 2, 1974, on a charge of negligent homicide under the provisions of RSA 630:3 II. The indictment charged that on June 8, 1974, in Goshen, defendant had negligently caused the death of Teresa Gonyea, a thirteen-year-old girl from Newport, by operating his automobile while under the influence of liquor. An arraignment was held on October 3, 1974, at which defendant, without entering a plea, filed a motion to quash the complaint alleging that it failed to state a criminal offense under RSA 630:3 II. Defendant further filed a motion to suppress as evidence, the results of a breathalyzer test taken at the time of the arrest.
Defendant's first contention is that RSA 630:3 II, as it existed at the time of the accident mistakenly provided that a propelled vehicle is one defined in RSA 637:9 II instead of RSA 637:9 III where a propelled vehicle was actually defined. It is defendant's argument that because of this mistaken reference in RSA 630:3 II the complaint fails to allege a criminal offense, and thereby the motion to quash the complaint must be granted.
Since an automobile is a propelled vehicle, to grant defendant's motion and quash the complaint as a result of a mere mistake in RSA 630:3 II. The indictment charged that on June 8, 1974, in or interfere with the legislative direction. See State v. Morey, 103 N.H. 529, 530, 176 A.2d 328, 330 (1961); State v. williams, 92 N.H. 377, 378, 31 A.2d 369, 370 (1943). As the purpose, object, and intention of the legislature in the enactment of RSA 630:3 II is clear, we must disregard the mistaken reference to the section number and read the reference so as to refer to the proper section, RSA 637:9 III. 2A J. Sutherland, Statutory Construction 47.36, 47.37 (3d ed. 1973); People v. Anderson, 398 Ill. 480, 486, 76 N.E.2d 773, 776 (1947).
Defendant's second contention is that, since RSA 262-A:63 (Supp. 1975) specifically states that the results of a breathalyzer test may be used as evidence when a defendant is charged under RSA 262-A:62 (Supp. 1975) with operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor, the test results are inadmissible in a trial of any criminal offense other than RSA 262-A:62 (Supp. 1975). As the defendant in the instant case is charged under RSA 630:3 II, defendant argues that the results of the breathalyzer test should be suppressed. We disagree.
In enacting the provisions of the implied consent law RSA 262-A:62, :69-a (Supp. 1975) through 262-A:69-j (Supp. 1975), the legislature indicated that the results of a breathalyzer test could be used in the prosecution of offenses other than violations of RSA 262-A:62 (Supp. 1975). The legislature has given approval to the admission of the results of a breathalyzer test in a prosecution other than under RSA 262-A:62 (Supp. 1975) when it stated in RSA 262-A:69-a (Supp. 1975) "Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to a chemical test or tests of any or all or any combination of the following: blood, urine, or breath, for the purpose of determining the alcoholic or controlled drug content of his blood, if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor. . . ." (Emphasis added.)
As we stated in State v. Reenstierna, 101 N.H. 286, 287, 140 A.2d 572, 574 (1958): "The utilization of probative methods developed by modern medicine and science as an aid for a judge or jury to determine disputed questions of fact has received hospitable recognition in this state by both judicial decision and statute." As a scientifically reliable procedure, the results of the breathalyzer test may prove to be of aid to a judge or jury in the prosecution of offenses such as the instant case, and their use is not limited solely to prosecutions under RSA 262-A:62 (Supp. 1975).
Motion denied; remanded.
All concurred.