# State v. Larochelle > Supreme Court of New Hampshire · November 3, 1972 · 112 N.H. 392 URL: https://www.frixlaw.com/law-library/cases/9762014 ## Case - **Full name:** State v. Jon Larochelle - **Court:** Supreme Court of New Hampshire - **Decided:** November 3, 1972 - **Citations:** 112 N.H. 392; 297 A.2d 223; 1972 N.H. LEXIS 227 - **Precedential status:** Published - **Opinion:** Dissent by Grimes - **Judges:** Griffith, Grimes - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9762014 ## How later opinions describe it (automated extraction) - holding report admissible to prove blood-alcohol content - describing earlier version of statute ## Opinion text Grimes, J., dissenting in part: The rule relied upon by the court is that the confrontation clause applies only when a witness is required for the production of evidence and does not apply when the requirement has been eliminated by an exception to or elimination of the hearsay rule. I cannot read RSA 262-A:69-k (supp.) as creating a new exception to the hearsay rule which would eliminate the requirement of the person who took the sample and administered the test being present as a witness. The statute seems to me to speak most clearly in terms of waiver of an existing right. “Failure to file notice shall be deemed a waiver to require their attendance . ...” In other words, in the absence of a waiver, their presence as witnesses is required. In fact, the court’s opinion itself speaks of the right conferred by the statute. Since in the absence of a waiver their presence *399 is required by the statute, the confrontation clause is applicable even under the court’s view of the constitutional right. However, my differences with the court run deeper than a disagreement over the construction of the statute. They involve fundamental differences over the meaning of the constitutional right to confrontation under both Constitutions and over the extent to which we should follow the plurality opinion of Dutton v. Evans, supra, in construing the confrontation clause of our State constitution. It is sufficient to say without prolonged discussion that I disagree with the plurality of four in Dutton and basically agree with the four dissenters. I also assert, for reasons which I will explain later, that the evidence admitted here does not even meet the tests laid down by the plurality in Dutton supra. The right to confrontation is one of the basic safeguards of liberty. If it had not been intended that it should provide greater protection than that given by the hearsay rule as a mere rule of evidence subject to change or even elimination, there would have been no need to enshrine it in the Bills of Rights of both Constitutions. And yet under the rule adopted by the plurality in Dutton and this court in the case before us, this right to confrontation can be wiped out by unlimited exceptions to the hearsay rule so long as a majority of the court decides that the evidence posesses sufficient “indicia of reliability.” This is an amorphous test indeed. Such a view, it seems to me, substitutes a rule of men for one of law and reduces a great safeguard to dependence upon the whims of judges. Of course, the framers of our Constitutions were aware of the then existing exceptions to the hearsay rule, and the confrontation clause must be read in the light of these exceptions. However, I do not believe that it was ever intended that those exceptions could be extended or enlarged to permit the admission of the evidence involved here. In California v. Green supra, cited by the court, the witness was in fact present at trial and therefore confrontation at trial was not denied. Surely the Green case furnishes no support for the admission of the evidence here without producing the person who made the test. The court relies upon the common-law official records *400 exception to the hearsay rule which is founded upon the inconvenience and expense of requiring the official’s attendance, the likelihood of trustworthiness due to the official’s duty to make accurate records, and the public’s opportunity to correct mistakes. Although this exception has generally been held constitutional, the label “official record” must be carefully applied. To be sure, unlike the record here, such records as birth, death, marriage, deeds and similar records, open to inspection and correction and made by persons and for purposes unconnected with a criminal case bear some indicia of reliability. But the record here is of the result of a test made for the specific purpose of convicting the defendant and conducted by agents of the executive branch, the very department of government which seeks defendant’s conviction. In fact it is possible that the test be administered by the very policeman who made the arrest. The record of the results of tests of the kind involved here are not to be equated with the mere routine recordation of facts such as birth or death. Here the fact recorded is the result of a test performed by the recorder himself and involves such crucial questions as the method of analysis and the reliability of procedures. The admissibility of such tests has uniformly been conditional upon compliance with proper procedures being proved by the State. State v. Reenstierna, 101 N.H. 286 , 140 A.2d 572 (1958); State v. Gallant, 108 N.H. 72 , 227 A.2d 597 (1967); State v. LaFountain, 108 N.H. 219 , 231 A.2d 635 (1967). The accuracy of the test by breathalyzer depends not only upon proper procedures but also upon the proper working of the machine and the use of proper chemicals compounded to the proper percentage. The proper chemical content of the ampules used in the machine is a critical factor in the result. State v. Baker, 56 Wash. 2d 846 , 355 P.2d 806 (1960). In the case of blood tests, it is not only important that the proper test procedures be used (State v. Gallant supra) but also that it be shown to be the defendant’s blood that was tested. State v. Reenstierna supra. Also in the case of blood tests, the results depend in part upon evaluation by the tester. Both types of tests involve substantial chance for error which effective cross-examination of the person performing *401 the test might reveal. This is quite different than the evidence in Dutton where the plurality stated “the possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal.” (Emphasis added). Then too, the plurality in Dutton relied in part upon the fact that testimony in that case “does not involve evidence in any sense ‘crucial’ or ‘devastating.’” In fact, two of the plurality thought the evidence to be so inconsequential that its admission, if error, was harmless beyond a reasonable doubt. In the case before us, the evidence is both “crucial” and “devastating”. The statute makes it conclusive evidence of the results and the results by RSA 262-A:63 (supp.) are made prima facie evidence of the defendant’s intoxication. With the exception of proving that the defendant was driving on a public highway, the evidence supplies ah the State needs to prove guilt. Certainly the evidence involved here is unlike the evidence in Dutton which was stated by the plurality to be “of peripheral significance at most”. The court says that a defendant may himself call the person who made the test. But the duty to confront a defendant with witnesses falls upon the State. Dutton v. Evans, supra, dissenting opinion, footnote 4. Here the State was allowed to introduce prima facie evidence of guilt without producing witnesses. I am also concerned with where the court’s opinion leads. If a policeman’s report of investigation is made an official record, may it be introduced without calling the officer as a witness? What about an autopsy report, or the report of a firearms identification expert? The drafters of our Bills of Rights were careful to include this substantial safeguard in the Constitutions. In my judgment, we should construe it liberally in favor of the right and not seek ways to reduce it to a mere paper guarantee. I would hold that absent a valid waiver, the presence of the witnesses was constitutionally required. There can be no valid contention that there has been a binding waiver here. The defendant was not informed about the statute, and as the court says “it does not appear that he knew of its existence”. *402 Although the constitutional right to confrontation may be waived, such a waiver to be binding must be deliberately, understandingly and knowingly made. Henry v. Mississippi, 379 U.S. 443 , 13 L. Ed. 2d 408 , 85 S. Ct. 564 (1965); Douglas v. Alabama, 380 U.S. 415 , 13 L. Ed. 2d 934 , 85 S. Ct. 1074 (1965). Presuming waiver from inaction as in this case is inconsistent with this rule. Barker v. Wingo, 407 U.S. 514 , 33 L. Ed. 2d 101 , 92 S. Ct. 2182 (1972). Since the defendant did not know of the statute and it was not made known to him either orally or in writing at the time he received notice of the test nor thereafter until trial, he could not have knowingly and deliberately waived his right to confront the persons who took the sample and made the test. I also am of the opinion that the statute in question will operate to deny effective assistance of counsel, especially to indigent defendants. Our State constitution, part I, article 15, provides that “this right he is at liberty to waive, but only after the matter has been thoroughly explained by the Court.” This indicates that our people do not favor inadvertent or presumptive waivers of constitutional rights. “The right to confrontation is basically a trial right.” Barber v. Page, 390 U.S. 719, 725 , 20 L. Ed. 2d 255, 260 , 88 S. Ct. 1318, 1322 (1968). It is a matter, therefore, in which the defendant needs the “guiding hand of counsel”. Powell v. Alabama, 287 U.S. 45, 69 , 77 L. Ed. 2d 158 , 170, 53 S. Ct. 55, 64 (1932). By requiring a defendant to make a choice within five days of receipt of the results of the tests, the decision must many times be made before defendant appears in court as in this case. There can therefore have been no waiver of counsel and in the case of an indigent, he will have had no opportunity to have counsel appointed for him. He is thereby denied the assistance of counsel with respect to an important trial right. See Brooks v. Tennessee, 406 U.S. 605 , 32 L. Ed. 2d 358 , 92 S. Ct. 1891 (1972). I do not disagree with the basic purpose behind the statute which is to save the State from having to produce witnesses if the properly informed and represented defendant is willing to waive. But a fairer means than is provided by this statute can certainly be found to do this without infringing on two important constitutional rights. *403 I therefore dissent from that part of the court’s opinion that deals with the admission of the report of the test, but concur in the remainder of the opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762014. Public record. Not legal advice.