Argued January 5, 1960.
Decided February 29, 1960.
1. While the statute (RSA 262:20) authorizes the admission of evidence of the amount of alcohol in the blood of a respondent, charged with driving while under the influence of intoxicating liquor (Ib., s. 19), "as shown by a chemical analysis of his breath, urine, or other bodily substance" the results of whatever test for intoxication is employed does not have conclusive effect.
2. The fact that a particular test employed to determine the amount of alcohol in a respondent's blood may have deficiencies or weaknesses does not affect the admissibility of the results of such test, if of aid to the court or jury, but is a matter of defense which affects the weight of the evidence.
3. In a motion to exclude evidence of an alcometer test, employed to ascertain the amount of alcohol in the blood of a respondent charged with driving while under the influence of intoxicating liquor (RSA 262:19), it was for the Trial Court to determine on the basis of the evidence before it whether the operator of the alcometer was qualified to operate it and whether it was properly operated.
TRANSFER, to the Supreme Court of a question of law from the Nashua municipal court under RSA 502:24. The complaint and warrant charges the defendant with operating a motor vehicle on a public way in the city of Nashua while under the influence of intoxicating liquor. RSA 262:19 (supp.); Laws 1955, c. 282, s. 1; Laws 1959, c. 94.
The transferred case allowed by McLaughlin, special justice of the Nashua municipal court is as follows:
"At the close of the State's evidence, the Respondent moved that the evidence presented by the State pertaining to the results of an alcometer test taken by the Respondent at the time of his arrest be stricken from the record upon the grounds that the test was improperly given by the Nashua Police, and that the operator of the alcometer machine was not qualified as an expert to operate said machine. The Court withheld ruling on the motion until after the Respondent presented his case.
"The officer who gave the alcometer test to the Respondent testified that he was shown how to operate the alcometer machine some twelve to eighteen months ago by a fellow police officer, and that he has operated the alcometer some twenty times since that time. The operator of the alcometer also testified that the `final reading' of the machine was .18. On cross-examination he stated that the needle stopped `just below .15' then after an adjustment the needle went to a reading of .18.
"A fellow police officer who, witnessed the last portion of the alcometer test testified that when he first arrived in the room where the alcometer test took place he noticed the reading of the machine at .14 and that after the operator made some adjustments the needle went to .18. The operator of the alcometer further testified that he received no formal training on the operation of the alcometer and that the only training he ever received was from a fellow police officer.
"The Respondent testified that the reading on the alcometer machine was .14 and that the operator then made some adjustments and the needle rose to .18.
"The Respondent's motion to strike the State's evidence pertaining to the alcometer is transferred without ruling."
Louis C. Wyman, Attorney General, Conrad Danais, county attorney, and Irma A. Matthews, Law Assistant (Irma A. Matthews orally), for the State.
Leonard Leonard (Mr. Richard W. Leonard orally), for the defendant.
The judicial approach in this state to scientific evidence generally and chemical tests for intoxication in particular was indicated in State v. Reenstierna, 101 N.H. 286, 287. In that case it was stated that 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." The legislative approach since 1949 is indicated by RSA 262:20 which provides that "the court may admit evidence of the amount of alcohol in the defendant's blood at the time alleged, as shown by a chemical analysis of his breath, urine, or other bodily substance." (Emphasis supplied). Laws 1949, c. 204, s. 1. The use of a breath test to determine intoxication was considered and allowed in State v. Baron, 98 N.H. 298, 299, where the "alcometer test" was employed.
While a blood test requires the services of a physician, or chemist or medical technician, an alcometer test may be made by a policeman with a reasonable amount of training and experience. Donigan, Chemical Tests and The Law (The Traffic Institute — Northwestern University 1957) c. VII and 1959 supplement; City of Wichita v. Showalter, 185 Kan. 181 (1959); 10 Syracuse L. Rev. 360 (1959). Although certain breath tests for determining intoxication may not have the same degree of accuracy as blood tests, "there is substantial scientific support for the reasonable reliability of such tests." McCormick, Scientific Evidence in Traffic Cases — Some Legal Problems, 4 So. Texas L.J. 193, 197 (1959); City of Seattle v. Bryan, (Wash.) 333 P.2d 680 (1958). Friedemann Dubowski, Chemical Testing Procedures for the Determination of Ethyl Alcohol, 170 A.M.A.J., pp. 47-71 (May 2, 1959).
Whatever test for intoxication is employed, it does not have conclusive effect. The statute (RSA 262:20) specifically provides that it "shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor." In this respect our law is quite different from the Rhode Island statute (R. I. Acts and Resolves 1959, c. 101) which was enacted after the decision in State v. Gregoire, (R. I.) 148 A.2d 751 (1959) and which requires tests to be made under stringent conditions relating to methods, equipment and personnel approved and licensed by the State Department of Health.
In this state evidence does not have to be infallible to be admissible. If it is of aid to a judge or jury, its deficiencies or weaknesses are a matter of defense which affect the weight of the evidence but does not determine its admissibility. Scientific tests for intoxication should be no less trustworthy than the views of untrained laymen who have always been permitted to testify as to intoxication on the basis of sight, smell, speech and locomotion. People v. Miller, (Mich.) 98 N.W.2d 524 (1959). In this connection reference may be made to the authoritative work of the committee on medicolegal problems of the American Medical Association in the manual "Chemical Tests for Intoxication" (1959) which describes the various chemical tests, their operation and their acceptance by both courts and medical authorities.
The evidence in the present case is indefinite as to the extent and nature of the experience of the policeman who operated the alcometer. Furthermore, we do not know the nature of the "adjustments" he made while the test was being conducted, nor their effect on the accuracy of the result. Whether the operator had sufficient knowledge and experience cannot be determined from the incomplete information in the record. It is for the Trial Court to determine on the basis of the evidence before it whether the operator of the alcometer was qualified by training or experience to operate it, and whether it was operated properly. Accordingly the order must be