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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Merrimack
No. 2017-0693


                       THE STATE OF NEW HAMPSHIRE

                                       v.

                          JEAN CLAUDE MFATANEZA

                          Argued: February 14, 2019
                         Opinion Issued: May 10, 2019

      Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the memorandum of law and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      LYNN, C.J. Following a bench trial on stipulated facts, the defendant,
Jean Claude Mfataneza, was convicted of aggravated driving while intoxicated.
See RSA 265-A:3 (2014). On appeal, he argues that the Trial Court
(McNamara, J.) erred in concluding that RSA 265-A:8 (2014) (amended 2016)
requires only that the Administrative License Suspension (ALS) warnings be
reasonably conveyed by reasonable methods in order to satisfy the statute and
be admissible at trial, rather than that the warnings be subjectively understood
by the individual driver. We affirm.
       The pertinent facts are as follows. On December 12, 2016, the defendant
was arrested by Concord police for driving while intoxicated. Upon arriving at
the police station, the defendant was placed in a holding cell. At that point, an
officer twice asked the defendant, who had emigrated from the Democratic
Republic of Congo and who is fluent in Kinyarwanda and Swahili, what
language he spoke, to which he replied English. The officer testified that she
knew the defendant and had dealt with him frequently — at least once a
month. The officer explained that the defendant “usually understands what
[she is] saying” and will speak with her in English even when he is intoxicated.
However, because the defendant could not read English, the officer read the
ALS form aloud to him. The officer read each line to the defendant, pausing
after each to ask the defendant if he understood. The defendant affirmatively
nodded his head after each line was read to him, signed the portion of the form
stating that he was informed of his rights, and agreed to testing. According to
the officer, at no point during this interaction did the defendant indicate that
he was having difficulty understanding her, and she observed nothing to
indicate that he could not understand her.

       Prior to trial, the defendant moved to exclude the admission of the ALS
form and corresponding breathalyzer test results from evidence, arguing that
he did not sufficiently understand the rights outlined in the form because of
his limited proficiency with the English language. The defendant took the
position that, as with Miranda warnings, a person must knowingly, voluntarily,
and intelligently consent to testing in order for the results to be admissible in a
trial. He argued that his consent did not meet this standard because, due to
the language barrier, he was unable to understand the ALS warnings read to
him, and therefore could not consent to testing. Testifying mostly through an
interpreter, the defendant explained that he signed the form because in the
Congo, where he is from, people are required to do what police officers tell them
to do. Following an evidentiary hearing on the motion, the trial court rejected
the defendant’s argument.1 After considering the different approaches used by
courts in other jurisdictions, the court adopted what it characterized as the
“more reasoned approach,” which requires only that the officer reasonably
convey the warnings in a reasonable manner. Applying that standard to the
facts of the case, the trial court concluded that, given the officer’s prior history
with the defendant and the defendant’s statements to her that he spoke
English, the officer conveyed the warnings in a reasonable manner. The
defendant was thereafter convicted, and this appeal followed.


1 The trial court rejected the defendant’s attempt to analogize the statutory requirements with
those needed for a valid Miranda waiver. The defendant, correctly, does not challenge the trial
court’s decision in this regard. Cf., e.g., State v. Ducharme, 167 N.H. 606, 614 (2015) (noting that
“implied consent law questioning is not ‘interrogation’” and therefore need not be preceded by
Miranda warnings); State v. Barkus, 152 N.H. 701, 708 (2005) (recognizing that “it is settled law
that a driver arrested for driving while under the influence has no constitutional right to refuse to
provide a sample for a blood alcohol test”).


                                                 2
       The defendant argues that the trial court erred in adopting the
reasonable methods approach as a basis for denying his motion in limine.
According to the defendant, New Hampshire law requires that the driver
understand the ALS warnings, and, therefore, that it must be established that
“no deficit in English-language fluency caused the driver to fail to understand
the statements on the ALS form.” It follows, in the defendant’s view, that “to
discharge their obligations under RSA 265-A:8, the police must read (or provide
in writing) the ALS warnings in a language the driver understands.”

       Resolving the issue on appeal requires us to determine the proper
interpretation of RSA 265-A:8. See State v. Balch, 167 N.H. 329, 332 (2015).
“The interpretation of a statute is a question of law, which we review de novo.”
Id. “We are the final arbiters of the legislature’s intent as expressed in the
words of the statute considered as a whole.” Id. “When we interpret a statute,
we look first to the statute’s language, and, if possible, construe that language
according to its plain and ordinary meaning.” Id. During this exercise, we “can
neither ignore the plain language of the legislation nor add words which the
lawmakers did not see fit to include.” State v. Cobb, 143 N.H. 638, 644 (1999)
(quotation omitted). Thus, “[w]e do not read words or phrases in isolation, but
in the context of the entire statutory scheme.” Balch, 167 N.H. at 332. “Our
goal is to apply statutes in light of the legislature’s intent in enacting them, and
in light of the policy sought to be advanced by the entire statutory scheme.” Id.
Where, as here, the issue is one of first impression in New Hampshire, we
further look to other states’ interpretations of similar statutory provisions for
guidance. Cf. State v. Berrocales, 141 N.H. 262, 263-64 (1996) (looking to
other states’ interpretations of similar constitutional provisions for guidance in
a matter of first impression).

      Pursuant to New Hampshire’s Implied Consent Law, a motor vehicle
operator “shall be deemed to have given consent” to the tests it describes when
“arrested for any offense arising out of acts alleged to have been committed
while the person was driving . . . a vehicle . . . while under the influence of
intoxicating liquor or controlled drugs,” provided the tests are “administered at
the direction of a law enforcement officer . . . having reasonable grounds to
believe the person to have been driving . . . while under the influence of
intoxicating liquor or controlled drugs.” RSA 265-A:4 (Supp. 2018); see State v.
Jenkins, 128 N.H. 672, 675 (1986) (noting that “[t]he act of taking the test is
voluntary because the very act of driving on New Hampshire’s public roads
implies consent to take the test”).

      As we have explained in the past, “the purpose of the statute is to
prevent the operation of cars by persons under the influence of intoxicating
liquor,” State v. Slater, 109 N.H. 279, 280 (1969), as well as to ensure “that an
arrested individual makes an informed decision concerning whether or not to
submit to a blood alcohol content test,” State v. Dery, 126 N.H. 747, 752
(1985). Stated differently, “[t]he major premise of the implied consent law is


                                         3
that it will aid the prosecution of the guilty and the protection of the innocent.”
State v. Gallant, 108 N.H. 72, 76 (1967) (quotation omitted).

       To achieve this purpose, the statute “imposes a positive duty on the
officer to do three equally important things before taking the test.” Dery, 126
N.H. at 752 (quotation and ellipsis omitted). Pursuant to RSA 265-A:8, prior to
testing an individual, an officer must:

      (a) Inform the arrested person of his or her right to have an
      additional test or tests of his or her blood made by a person of his
      or her own choosing;

      (b) Afford the arrested person an opportunity to request such
      additional test; and

      (c) Inform the arrested person of the consequences of his or her
      refusal to permit a test at the direction of the law enforcement
      officer.

RSA 265-A:8, I. Failure to comply with these provisions results in the evidence
being inadmissible “in any proceeding before any administrative officer and
court of this state.” RSA 265-A:8, III.

      We are asked to determine what the term “inform” requires under the
statute. Relying on case law from Wisconsin and Iowa, the trial court
concluded that the statute requires that an officer need only reasonably convey
the warnings to an individual. The defendant, however, urges us to adopt the
approach taken by the New Jersey Supreme Court. We conclude that the
approach adopted by the trial court conforms to our statute’s purpose.

       Contrary to the defendant’s suggestion, the New Jersey approach
outlined in State v. Marquez, 998 A.2d 421 (N.J. 2010), is incongruent with our
legislative scheme. Indeed, the case is not only factually distinguishable from
the case at hand, but also would, in our view, “add words [to our statute] which
the lawmakers [in New Hampshire] did not see fit to include.” Cobb, 143 N.H.
at 644 (quotation omitted). In Marquez, the defendant “spoke no English, and
the police had no reason to believe that he did.” Marquez, 998 A.2d at 423.
Nevertheless, the officers attempted to read the consent form to the defendant
“all in English.” Id. Even when the defendant confirmed, in Spanish, that he
could not understand, the officers continued to read the form to him in
English. Id. In fact, “[t]he police later candidly acknowledged that [the]
defendant did not understand what was read to him,” and it was “undisputed
that [the defendant] d[id] not speak English.” Id. at 423, 426. Ultimately,
however, the defendant was found guilty of refusing to take the test. Id. at
426.



                                         4
       On appeal, the New Jersey Supreme Court concluded that, by its plain
terms, the word “inform” “calls for more than a rote recitation of English words
to a non-English speaker.” Id. at 434. In the court’s view, “in the context of
the implied consent and refusal statutes,” the word “inform” means “that
[officers] must convey information in a language the person speaks or
understands.” Id. While we agree with the New Jersey Supreme Court that
“inform” means “to communicate knowledge to” and “make acquainted,” see id.
(quotation omitted), we do not agree that this definition creates an affirmative
obligation on the officer to deeply probe into an arrested person’s preferred
language in order to convey the warnings in the language of preference. Such
a requirement would shift the statutory focus from the “positive duty” imposed
on the officer, Dery, 126 N.H. at 752, to the subjective understanding of the
defendant, see Marquez, 998 A.2d at 444 (LaVecchia, J., dissenting in part and
concurring in judgment) (rejecting the majority’s approach and noting that the
legislature intended “to focus on the actions of the police officer because he or
she is the actor addressed by the statutory language”). This approach would
turn the statutory scheme on its head.

       Rather, we think the better approach under our statute is the one
employed by Wisconsin and Iowa. In State v. Piddington, 623 N.W.2d 528
(Wis. 2001), the Wisconsin Supreme Court held that its implied consent statute
requires “the arresting officer under the circumstances facing him or her at the
time of the arrest, to utilize those methods which [a]re reasonable, and w[ill]
reasonably convey the implied consent warnings” to the arrested individual.
Id. at 534-35. This approach, according to the court, ensures “that the driver
cannot subsequently raise a defense of ‘subjective confusion,’” because
“whether the implied consent warnings were sufficiently administered must not
depend upon the perception of the accused driver.” Id. at 539. The court
further noted that this interpretation advances the purpose and intent of the
implied consent law, which is aimed at “facilitating the gathering of evidence
against drunk drivers,” as well as advising “the accused about the nature of the
driver’s implied consent.” Id. at 538 (quotations and brackets omitted). Thus,
in Wisconsin, “[w]hether the implied consent warnings given sufficiently comply
with [the statute] depends upon the circumstances at the time of the arrest,”
and “correspondingly, whether the methods used were reasonable and would
reasonably convey those warnings also depends upon the circumstances facing
the arresting officer.” Id. at 540. As the court explained, reasonableness “does
not mean the officer must take extraordinary, or even impracticable measures
to convey the implied consent warnings,” because it “also requires
consideration of the fact that alcohol dissipates from the blood over time,
particularly after the subject has stopped drinking,” and the “State cannot be
expected to wait indefinitely to obtain an interpreter and risk losing evidence of
intoxication.” Id. at 542. This approach was similarly adopted by the Iowa
Supreme Court in State v. Garcia, 756 N.W.2d 216 (Iowa 2008).




                                        5
       We are persuaded by the reasoning of the Piddington and Garcia cases,
and accordingly hold that, to satisfy RSA 265-A:8, I, an officer need only
reasonably convey the ALS warnings by reasonable methods. This approach
properly balances the objectives of our implied consent law, which is not only
to ensure “that an arrested individual makes an informed decision concerning
whether or not to submit to a blood alcohol content test,” Dery, 126 N.H. at
752, but also to prevent “the operation of cars by persons under the influence
of intoxicating liquor,” Slater, 109 N.H. at 280, by aiding in the “prosecution of
the guilty,” Gallant, 108 N.H. at 76 (quotation omitted). Applying an objective
standard to the officer’s conduct under the circumstances furthers the
legislature’s intent and ensures that the goals of the statute will be realized.
See Balch, 167 N.H. at 332. Application of a subjective approach that
considers the driver’s understanding of the provided warnings runs the risk
that the driver might use “the opportunity to delay the test to his benefit,”
Harlan v. State, 113 N.H. 194, 197 (1973), or “subsequently raise a defense of
‘subjective confusion,’” Piddington, 623 N.W.2d at 539. Indeed, such
subjective confusion is an accurate characterization of the claim raised by the
defendant here. We conclude today that this post hoc subjective analysis
would upset the balance of the statute.

       Finally, nothing in the record suggests that the officer acted
unreasonably under the circumstances. Here, there is evidence that the
defendant: (1) knew the officer from prior encounters; (2) had spoken with the
officer in English during these encounters; (3) told the officer twice at the police
station that he spoke English; and (4) affirmatively indicated to the officer that
he understood the statements on the form. Given these circumstances, the
trial court did not err in concluding that the officer acted reasonably in reading
the ALS form to the defendant in English and asking the defendant after each
portion whether he understood what was read to him prior to proceeding with
the additional testing.2

                                                              Affirmed.

       HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.




2 Because we adopt the reasonable officer approach, which is focused on the objective conduct of
the officer in administering the testing rather than the subjective understanding of the driver, we
need not decide whether the defendant subjectively understood the ALS warnings read to him.


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