State of New Hampshire v. Bradley Birkenfeld

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0587, State of New Hampshire v. Bradley
Birkenfeld, the court on August 12, 2015, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Bradley Birkenfeld, appeals his conviction, following a
bench trial in the Circuit Court (Gardner, J.), on a charge of driving while
intoxicated. See RSA 265-A:2 (2014). He argues that the trial court violated
his federal and state constitutional rights to due process and a fair trial by
admitting the result of a preliminary breath test (PBT) without evidence that
the officer who administered the PBT complied with the requirements of RSA
265-A:15 (2014), and that the trial court erred by finding that he had “opened
the door” to evidence of the PBT result.

At the outset, we note that at no point at trial did the defendant argue
that either the State or Federal Constitution required that the PBT result be
excluded from evidence. See State v. Lavallee, 145 N.H. 424, 426 (2000). Nor
has he adequately developed a constitutional argument on appeal. See State v.
Blackmer, 149 N.H. 47, 49 (2003). Accordingly, we limit our review to whether
the trial court unsustainably exercised its discretion by admitting the PBT
result. See State v. Ramsey, 166 N.H. 45, 49 (2014) (noting that evidentiary
rulings are reviewed for unsustainable exercises of discretion); Lavallee, 145
N.H. at 426 (limiting review to whether trial court exceeded its discretion in
excluding evidence where the defendant did not preserve constitutional issue).
To establish that the trial court unsustainably exercised its discretion, the
defendant must show that its ruling was clearly untenable or unreasonable to
the prejudice of his case. Ramsey, 166 N.H. at 49.

In this case, the record reflects that on cross-examination of the
arresting officer, the defendant introduced, over the State’s objection, evidence
that the officer had administered a PBT, and had failed to advise the defendant
that taking the PBT would not excuse him from having to take a subsequent
alcohol concentration test. See RSA 265-A:15, I (requiring officer to advise that
taking a PBT will not excuse the driver from having to take an alcohol
concentration test pursuant to RSA 265-A:4 (2014)). In his offer of proof, the
defendant explained that he refused to take a subsequent alcohol
concentration test because he had already taken the PBT. Thus, he asserted
that the evidence rebutted any inference that his refusal to take the
subsequent test reflected a consciousness of guilt.

On redirect examination of the officer, the trial court allowed the State to
introduce testimony that the PBT result exceeded the legal limit, and that the
defendant was aware of the PBT result. The trial court did not, however, allow
the State to introduce the actual alcohol concentration level that the PBT
revealed. The trial court reasoned that the defendant had “opened the door” to
such testimony by suggesting that he had refused an alcohol concentration test
because he had misunderstood the significance of the PBT. According to the
trial court, evidence that the defendant knew that the PBT result exceeded the
legal limit suggested that he had refused the subsequent test not because he
thought that the PBT satisfied his obligation under RSA 265-A:4, but because
he thought that its result might also exceed the legal limit. The trial court
noted, however, that it would allow the testimony only to show the defendant’s
state of mind in refusing to take the test, and not as evidence of impairment.

Following the trial court’s finding of guilt, the defendant moved for
reconsideration. He argued that evidence of the PBT result was inadmissible
because the officer who administered the PBT did not “give the statutory
admonishments” required by RSA 265-A:15. He requested that the trial court
“strike from the record all testimony pertaining to the PBT other than the fact
that one was administered and no statutory admonishments [were] given,” and
that it find him not guilty. At the defendant’s sentencing hearing, the trial
court orally granted the motion in part, striking all testimony pertaining to the
PBT and the defendant’s subsequent refusal to take an alcohol concentration
test. The trial court explained that, because the officer had failed to advise the
defendant that taking a PBT would not excuse a subsequent alcohol
concentration test, it had not considered either the PBT result or the
defendant’s refusal to take the subsequent test in finding him guilty. Instead,
the trial court stated that it had relied solely upon evidence concerning the
defendant’s performance on field sobriety tests and the observations of the
officers in finding that he was impaired.

On appeal, the defendant argues that the officer’s failure to comply with
RSA 265-A:15 rendered the PBT result inadmissible, and that the trial court
misapplied the specific contradiction doctrine in allowing the PBT result into
evidence. Even if we were to assume, without deciding, that an officer’s failure
to comply with RSA 265-A:15 renders a PBT result inadmissible, and that the
trial court erred by allowing the PBT result into evidence under the specific
contradiction doctrine, the defendant has failed to establish that the trial
court’s error prejudiced his case. See Ramsey, 166 N.H. at 49. The trial court
struck both the PBT result and evidence that the defendant subsequently
refused to take an alcohol concentration test from the record, and expressly
confirmed that it had not relied upon either item of evidence in finding him
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guilty. The defendant does not argue that, absent evidence of the PBT result
and refusal to take an alcohol concentration test, the remaining evidence was
insufficient to sustain his conviction. Under these circumstances, the trial
court eliminated any prejudice that might have been caused by its purported
error. See State v. Ploof, 165 N.H. 113, 119 (2013) (finding that the trial court’s
striking of inadmissible evidence and curative instruction not to consider it
eliminated any prejudice).

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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