Opinion
No. 6584
Decided May 30, 1975
1. The finding that the defendant was guilty of driving under the influence of intoxicating liquor was warranted on a record from which it could be found that the defendant drove a truck on the public highway to where he was discovered behind the steering wheel of the truck with its tires buried in the sand alongside the highway and that the defendant's degree of intoxication had not changed materially in the brief lapse of time that it took the officer to arrive at the scene.
Warren B. Rudman, attorney general, and James L. Kruse, attorney (Mr. Kruse orally), for the State.
William P. Shea, by brief and orally, for the defendant.
MEMORANDUM OPINION
Defendant was found guilty of operating under the influence of intoxicating liquor in a jury-waived trial, and his exception to the court's failure to dismiss for failure to prove a prima facie case was transferred by Dunfey, J.
The arresting officer who appeared on the scene within fifteen minutes of receiving a call found the defendant behind the wheel of a truck, the motor of which was running and from which came the odor of a burning clutch. The vehicle was alongside the traveled part of a public highway with its tires buried in sand. Tire skid marks led from one side of the road to the other directly to the position of the truck. The only other person at the scene was a local resident who was preparing to bring his own vehicle from nearby to assist in pulling the truck out.
This case is governed by State v. Costello, 110 N.H. 182, 263 A.2d 671 (1970), and State v. Allen, 114 N.H. 682, 327 A.2d 715 (1974). Not only could it be found that the defendant drove the truck on the public highway to the location where he was found, but the brief lapse of time that it took the officer to arrive would support a finding that defendant's degree of intoxication had not materially changed.
Exception overruled.
KENISON, C.J., did not sit.