State v. Dunsmore , 112 N.H. 382 ( 1972 )

Per curiam.

The issues in this case are (1) whether the introduction in evidence of the result of a blood test without having the persons who took the sample and conducted the test present at the defendant’s trial violated his right to confrontation, and (2) whether evidence of the result of the test was erroneously admitted when, although defendant had been given notice in accordance with RSA 262-A:69-c that he had a right to have a test made by a person of his own choosing, there was no evidence that he had been “afforded ... an opportunity to request an additional test.”

On September 4, 1971, a blood sample was taken from the defendant after he had been arrested for dt'iving while under the influence of intoxicating liquor contrary to RSA 262-A:62 (supp.). Before the sample was taken he was read the so-called “Miranda warning” and then the officer read to him the following statement:

“ 1. You have been arrested and charged with driving while under the influence of intoxicating beverages.

“2. You may submit to a test of your blood or urine, to be conducted by a person of our choice.

“3. You also have the right to have a blood or urine test conducted by a person of your choice.

“4. Refusal to permit the test may result in revocation of your license, or right to drive in this state for 90 days.”

He then submitted to a blood test. Report of the test was received by the Concord Police Department on September 9, 1971, and a copy was received by the defendant on September 10, 1971. On September 15, 1971, defendant was arraigned on a complaint dated the same day and pleaded not guilty. He was tried on October 21, 1971, and the result of the blood test was admitted in evidence over his objection. Neither the person who took the sample nor the one who made the test was called as a witness, and there was no evidence that, after having been given the warnings quoted above, the defendant requested an additional test by a person of his choice. Defendant was found guilty and the questions of law relating to the admission in evidence of the report of the blood test were transferred by Matson, J., in advance of sentencing.

RSA 262-A:69-k(supp.) provides that any person who is arraigned on a charge of driving under the influence of intoxicating liquor “shall file notice in said court, within five days immediately following the receipt by said person of the results of any blood alcohol test administered to him, requiring the attendance of the person who took the sample for said test or of the person who conducted said test, or both. Failure to file notice shall be deemed a waiver to require their attendance at the trial, and the official report of said test issued pursuant to RSA 262-A:69-a shall be deemed conclusive evidence of the conduct and results of said test.”

The bill enacting this provision was signed by the Governor on May 5, 1971, and became effective on July 4, 1971. Neither the defendant nor his attorney knew of the existence of the provision and no notice was filed to require the presence of the persons involved in either taking the sample or conducting the test.

The first issue, involving defendant’s confrontation claim, is decided adversely to him by State v. Larochelle, 112 N.H. 392, (1972), decided this day.

The second issue raised by defendant’s objections is whether evidence of the result of the test was erroneously admitted, for want of proof that the defendant was afforded an “opportunity to request” an additional test by a person of his own choice. RSA 262-A:69-c(2). There was no evidence that the defendant made any request for such a test. In the absence of evidence that he was prevented from doing so or that his statutory rights were interfered with, the State’s burden of proof was satisfied by the proof that he was told that he had the right to have the additional test made.

The opportunity to request the test was afforded at that time. The statute required nothing more. See State v. Petkus, 110 N.H. 394, 269 A.2d 123 (1970); cf. RSA 594:15, 16, 17, requiring that notice of detention of a prisoner be given to a relative, friend, or attorney of the prisoner, and that conferences at reasonable times be permitted, under penalty of a fine.

We hold that the evidence of the result of the test made for the State was properly received.

Remanded.

Grimes J., dissented.