Motor Vehicles — Alcohol Tests — Driver's Sample DWI defendant had no right to be transported to have a blood sample drawn, where the State did not conduct any blood alcohol test and where defendant had refused earlier offers to have such a sample taken. State v. Martin, 125 N.H. 672 (1984). 3. Constitutional Law — Equal Protection — Alcohol Tests Claim of defendant charged with driving while under the influence that he was denied equal protection by the State's refusal to pay for an independent blood alcohol content test was not considered, since defendant made no claim of indigency or inability to pay for the test.
The standard for determining whether a law or procedure violates due process is whether the law or procedure is fundamentally fair. State v. Denney, 130 N.H. 217, 220, 536 A.2d 1242, 1243 (1987); State v. Martin, 125 N.H. 672, 676, 484 A.2d 1176, 1179 (1984). Several reasons convince us that SB 144-FN is not fundamentally fair to DWI suspects to whom the test is administered under the implied consent law.
We have stated previously that, "[T]he ultimate standard for judging a due process claim . . . is the notion of fundamental fairness." State v. Martin, 125 N.H. 672, 676, 484 A.2d 1176, 1179 (1984); see Appeal of Public Serv. Co. of N.H., 122 N.H. 1062, 1072, 454 A.2d 435, 441 (1982). The implied consent law provides to an individual arrested for a violation or misdemeanor a statutory right to refuse to render a sample for a blood alcohol test.
The primary rationale for the majority's ruling " was that due process was violated because the police were able to control a defendant's access to a second sample through their unbridled discretion in selecting the type of test to be administered." Opinion of the Justices, 131 N.H. at 592, 557 A.2d 1355 (opinion of Souter and Thayer, JJ.); seeState v. Martin, 125 N.H. 672, 676, 484 A.2d 1176 (1984). By choosing the breath test, the police could choose the " evidentiary technique that [was] solely and completely in control of the prosecution despite the fact that other courses permitting independent analysis by the defendants [were] available."
Pursuant to RSA 265:86, the obligation to provide defendants with a sample for their own testing "arises[s] only when a test is administered at the direction of a law enforcement officer." State v. Martin, 125 N.H. 672, 675 (1984). As noted above, the defendant in the present matter concedes that the test was not administered at the direction of the State trooper.
Accordingly, even considering the importance of this evidence, we hold that the procedure as applied to the defendant in this instance was not fundamentally unfair. As to the defendant's second contention, we note that the test result does not have a "monopoly on probative value," as the defendant contends by his mistaken reading of State v. Martin, 125 N.H. 672, 676, 484 A.2d 1176, 1179 (1984). As the United States Supreme Court has noted:
[1, 2] Turning first to the defendant's claim that the police conduct in this matter deprived him of his due process rights, the defendant must show that the conduct of the police in investigating and reporting on this matter failed to meet a standard of fundamental fairness. See State v. Martin, 125 N.H. 672, 677, 484 A.2d 1176, 1179 (1984) (citing California v. Trombetta supra). The fact that the police in the instant case either did not prepare a report, or prepared one and misplaced it, could only work to the benefit of the defendant.
[14, 15] To decide the present issue, it is enough to note two rules: (1) the statute provides that no physician shall be required to disclose a privileged communication "except as otherwise provided by law," RSA 329:26; and (2) discovery is generally subject to trial court discretion. State v. Martin, 125 N.H. 672, 675, 484 A.2d 1176, 1178 (1984). We can infer no abuse of discretion in refusing to order discovery of psychiatric files when, as here, there is no basis to infer that the records were "essential and reasonably necessary" to corroborate testimony on an issue in dispute.
It is not necessary for us to decide whether the Alaska Constitution guarantees a free independent test to indigents because there is nothing in the record to suggest that Gundersen is indigent. See State v. Alcorn, 125 N.H. 672, 484 A.2d 1176, 1180 (1984). Gundersen does not point to anything in the record implying that he was personally discouraged from obtaining an independent test.