LACONIA — Attorney Mark Sisti, who represents Amy Lafond against charges that her reckless and negligent driving caused the death of one teenage girl and severely injured another on Messer Street nearly a year ago, has asked the Belknap County Superior Court to rule that the results of tests on the blood taken from his client after the incident not be placed in evidence.
No information has to date been made public about the results of those tests.
In a motion filed yesterday Sisti argues that the test results should be suppressed on two grounds. First, he questions whether Lafond "freely, willingly and knowingly" consented to her blood being drawn. Second, in light of the circumstances in which her blood was drawn, he claims that a state statute requiring mandatory blood testing of drivers involved in accidents leading to serious injury or death cannot be invoked to justify introduction of the test results as evidence.
Lafond, 53, is charged with manslaughter and two counts of negligent homicide arising from an incident on April 19 when she allegedly drove into two teenage girls on Messer Street, killing Lilyanna Johnson and seriously injuring Allyssa Miner. She is also charged with several drug offenses and traffic violations.
Although Belknap County Attorney Melissa C. Guldbrandsen has said that toxicology tests found elevated levels of Oxycodone and the presence of Gabapentin, both prescription drugs, in LaFond's bloodstream, she has not been charged with driving while impaired. However, when Lafond was arraigned, Guldbrandsen said, "we are alleging that the accident occurred after she consumed drugs."
Sisti begins by referring to the report of Officer Joseph Marquis of the Laconia Police Department, who wrote that, Lafond was taken to Lakes Region General Hospital where he spoke with her and concluded: "I did not smell the odor of an alcoholic beverage and there was no reason or probable cause for me to believe that she was impaired by drugs or alcohol. Based on my observations and interactions with Mrs. Lafond, it was my judgment that she was able to knowingly consent to my request for a conceptual blood draw."
Marquis reported that he read the Consent-to-Search form issued by the Laconia Police Department, which includes the right to withhold consent, to Lafond, who he said consented to the blood draw. A medical technician then took two blood samples, one to which Lafond consented and another pursuant to the statute (RSA 265-A:15) requiring mandatory blood tests of drivers involved in accidents leading to serious injury or death.
Sisti argues that there is no evidence that Marquis advised Lafond of the consequences of a voluntary blood draw, namely that the test results could be used against her in criminal proceedings. Consent, he maintains, cannot be deemed free, willing and knowing "without a full appreciation of the consequences of such consent" and concludes that her consent "was not fully knowing."
RSA 265-A:16 requires police to conduct blood draws of drivers involved in fatal accidents, "provided that in the case of a living driver or operator the officer has probable cause to believe that the driver or operator caused the collision or accident." Sisti refers to the Attorney General's Law Enforcement Manual, which notes that because the law does not require either a warrant or probable cause to believe the person was driving while impaired, its constitutionality is in question. More specifically, the manual continues, there is a question whether tests results can be introduced as evidence in criminal proceedings.
Sisiti finds that "the statute authorizes a law enforcement officer to compel a blood test, which unquestionably amounts to a 'search' under the 4th Amendment in circumstances where there has been no showing of any likelihood that the evidence will produce any evidence of criminal activity." The Attorney General's manual asserts that nevertheless the statute is constitutional because the search falls within the exception to the require for a warrant or probable cause granted for "special needs;" for example, the necessity to conduct blood tests in a timely manner if the presence of substances, like alcohol and drugs that metabolize rapidly, is to be detected.
However, Sisti cites two New Hampshire cases in which the courts have rejected this rendering of the statute. And he further reminds the court that the Attorney General cautions law enforcement officers that mandatory blood tests "cannot be routinely used as evidence against drivers in criminal prosecutions." Instead, the manual advises "wherever possible, officers should document any facts supporting a finding of probable cause to believe that the driver is impaired, and any exigent circumstances that would justify conducting a warrantless search. This would provide the State with an alternative argument to support the admissibility of the test results at a subsequent trial."
Asking the court to suppress the results of the blood tests, Sisti returns to Marquis's report where he expressly states that "there was no reason or probable cause for me to believe that she was impaired by drugs or alcohol."