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."
Last Updated on Friday, 18 April 2014 01:00
CONCORD — The search for the 32-year-old Northfield man who is presumed drowned in the Smith River in Bristol, following a leap into its icy waters on Monday evening is on hold because of rising water, N.H. Fish & Game officials said Wednesday.
On Monday evening the search for Arron Hoyt began, coordinated by N.H. Fish and Game Conservation Officers, with assistance from the Bristol Fire and Police and New Hampton Fire departments. On Tuesday, the recovery effort continued by boat, with Fish and Game, Bristol Police and Marine Patrol officers participating.
Because of quickly rising waters, Wednesday's search was limited to aerial surveys by an Army National Guard helicopter flying over the river.
The U.S. Army Corps of Engineers is providing water level data, such as flow and water height.
"The river has risen nine feet from yesterday to this morning, and is projected to rise another 14 feet before Thursday morning," said N.H. Fish and Game Lt. James Kneeland. "We will have to take it day by day until workable, safe conditions allow us to get back on the river."
Hoyt is presumed drowned after being observed by two witnesses jumping into the Smith River off a 12 foot high ledge outcropping near Profile Falls approximately 7:30 on Monday evening. He was attired in swim trunks, without a life vest. He was swept downriver and last seen with his head above water, trying to make his way toward shore.
While there is no specific evidence linking Hoyt's actions to a dare challenge related to the "Polar Plunge" Facebook fad, "We believe Hoyt was aware of the Polar Plunge trend, and his likely death from this incident is a tragic reminder of just how dangerous actions such as those promoted by that trend can be," said Kneeland.
"Anyone considering going near any body of water this time of year should take standard precautions such as wearing a life jacket," Kneeland continued. "We are urging the public to use caution around all waterbodies until warmer temperatures — both air and water — arrive, and water levels return to normal. Please give the spring runoff a chance to occur before planning your water activities."
Updates on the search will be posted at http://www.wildnh.com.
Last Updated on Thursday, 17 April 2014 12:37
CONCORD — Walter Havenstein of Alton, a retired Marine colonel and corporate executive, yesterday became the second Republican to enter the race for governor.
If he is successful, Havenstein would become the first resident of Belknap County to be elected governor since fellow Republican Henry B. Quinby of Laconia, a champion of the progressive politics of President Theodore Roosevelt, who served from 1909 to 1911.
Introduced at the Legislative Office Building by former governor Steve Merrill and accompanied by former governor Craig Benson, Havenstein appears to enjoy the support of what more conservative and populist elements of the GOP deride as the "establishment" in a bid to recapture the corner office, which Democrats have occupied for 16 of the last 18 years.
"New Hampshire is at a crossroads," Havenstein began, noting that after three decades robust growth "our state's economy has stagnated and begun to decline. "We can do better," he continued. "I don't accept the status quo and I will provide the thoughtful leadership necessary to reverse the trends, stop the decline and restore prosperity."
Referring to the administrations of governors John Lynch and Maggie Hassan, Havenstein said that "we've squandered an entire decade and we're falling behind. We can no longer afford bureaucratic medicine for all our economic woes." Likewise, Havenstein dismissed casino gambling, remarking that "I'm terribly disappointed that we have a governor whose conception of economic development is casino gambling." The issue, he stressed. is "how are we going to make all businesses in New Hampshire flourish."
"Government alone cannot lead economic recovery." Havenstein said, calling instead for "limiting the role of government while "relying on our relationships with small business owners and entrepreneurs" and designing that "taxes and regulations that reward success, not punish it."
The high costs of health care and energy, he claimed, are weighing on the economy. Describing the Affordable Care Act (ACA) as neither care or affordable, he said that "one-size fits all is not what New Hampshire is all about." Citing a survey of insurance brokers by Morgan-Stanley that reported health insurance premiums have risen 90-percent, Havenstein said "make no mistake. That's an income tax."
He questioned the plan to use Medicaid funds to extend health insurance to those earning up to 138-percent of the federal poverty level. "We should be getting people off government programs," he said, "not on them."
While acknowledging the need to "recapitalize and improve our infrastructure," Havenstein shrank for supporting an increase in the gas tax. "I'm not convinced we're spending what we take in effectively," he said, "and economic stagnation is not the time to raise a tax on anyone."
Questioned about a sales or income tax, he snapped "forget it."
Havenstein said that he favored a so-called "right-to-work" law, explaining "I believe in the nobility of work and the freedom of individuals to work without being required to belong to a union."
"I'll be working for prosperity," Havenstein said, adding "for a balanced prosperity. "We must fund critical services without bankrupting the state and overburdening its citizens."
Touting his experience, Havenstein said that he has demonstrated leadership as a military officer, business executive and philanthropist. A graduate of the United States Naval Academy with a degree in aerospace engineering, Havenstein served in the United States Marine Corps from 1971 to 1999, including 12 years on active duty , where he specialized in tactical communications and systems acquisition management, before retiring with the rank of colonel.
Havenstein began his career in the private sector the aerospace and communications division of ITT Corporation and later held a handful of executive positions with the Raythen Company. In 1999 he joined Sanders Associates of Nashua, then a subsidiary of Lockheed Martin Aerospace Electronic Systems, serving as president of the firm, which when it was acquired by BAE Systems a year later.
At BAE Systems, Havenstein was president of two operating groups between 2000 and 2003 when he became executive vice-president of BAE Systems North America. When the company reorganized in 2005 he became president of the Electronics & Integrated Solutions Operating Group and two years later was named president and CEO of BAE Systems, Inc,where he managed an annual budget three times that of the state. Havenstein left BAE Systems, Inc. in 2009 to join Science Applications International Corporation (SAIC), a contractor for government services and information technology, where he served as president and CEO until 2012 when he retired.
Havenstein serves on the board of the Whittemore School of Busienss at the University of New Hampshire and is the vice-chairman of FIRST (For Inspiration & Recognition of Science & Technology), the non-profit organization founded by Dean Kamen, the inventor and entrepreneur, to foster interest in scientific and technical careers among young people. He was vice-chair of the Marine Corps Scholarship Fund and, with his wife Judy, has supported the Juveniles Diabetes Research Foundation for the past 30 years.
Calling himself "an experienced decision maker," Havenstein emphasized that he is not guided by "abstractions and theory" but reaches "practical decisions based on the facts." Asked about his view of the GOP platform, he confessed "I don't know what the Republican platform is today." Then he noted that his wife served on the platform committee and helped "reign in the platform from being a series of litmus tests. It's all about job creation and economic growth."
Questioned that he may have impaired his eligibility for the governorship by in 2008 designating Maryland as his primary residence, which qualified him for tax relief on the purchase and ownership of a condominium when he worked for SAIC, Havenstein insisted New Hampshire has been his home for the past 15 years. "I have voted here and no place else," he said. "This is my home." He expressed confidence that he has complied with the laws of both New Hampshire and Maryland.
The N.H. Constitution requires that governors live in the state for seven years before serving.
Havenstein described Hassan as "a good person," but said her policies and actions were having adverse impacts. The election, he suggested, will pose a choice between "Maggie Hassan's good intentions and my know-how. Who is best suited to end the stagnation. I look forward to governing."
Andrew Hemingway of Bristol, a 31 year-old, self-described entrepreneur who chaired the Republican Liberty Caucus of New Hampshire, is the only other GOP candidate for governor at the point. The official filing period is in June.
Last Updated on Thursday, 17 April 2014 12:33
LACONIA — A Belknap County Superior Court judge has ruled against a legal action brought by Democratic members of the Belknap County Convention against Rep. Colette Worsman (R-Meredith), the chairman of the convention, for permitting a member to participate by telephone in what proved a critical vote.
The suit, brought by Rep. Ruth Gulick (D-New Hampton) and the other four Democrats on the convention, alleged that Worsman had violated the state's Right-To-Know law by permitting Rep. Guy Comtois (R-Barnstead) to cast a vote without first gaining approval for his participation from the entire body.
The vote was taken when the convention, then wrestling with the 2014 county budget, met in the midst of a heavy snowstorm on February 18, which delayed the assembly of a quorum until three-quarters of an hour past the appointed time of 5 p.m. Only 13 of the 18 members were present when the meeting was convened. Prior to convening the meeting Worsman arranged for Rep. Guy Comtois (R-Barnstead), who was tending to a failing roof, to participate by telephone. When the meeting opened, Worsman explained Comtois would participate by telephone and phone device was placed on the table and she spoke with him to confirm their connection.
Rep. Beth Arsenault (D-Laconia) then offered a motion to adopt the commission's proposed budget for 2014, which was second by Rep. Lisa DiMartino (D-Gilford). The members in the room divided seven-to-six in favor of the motion, but Comtois, participating by telephone, voted against and the motion failed to achieve majority support. Two weeks later, on March 4, the normal convention majority adopted its own version of the county budget.
Judge James D. O'Neill III, who heard arguments on the case on April 3, ruled Tuesday that since no one had objected to Comtois' participation at the February 18 meeting that they had allowed, within the ordinary meaning of the word, his participation, and denied the request to disallow his vote.
He also ruled that another part of the Right-To-Know law which would have required that the minutes of the meeting contain the reason why Comtois was not physically present and identify anyone else present with him at the place from which he was calling had not been violated. He noted that the minutes did say he was ''tending to a roof emergency'' and didn't identify anyone who was with him at the location from which he was calling because, presumably, there was no one else there.
The suit had originally been brought by the Democrats against Worsman and convention Clerk Jane Cormier (R-Alton). Judge O'Neill allowed the Democrats to amend the legal action to include the Belknap County Convention as a defendant.
The Convention was represented in the legal action by Attorney Barton L. Mayor of the Concord law firm of Upton and Hatfield. Legal fees for the county will be paid by the Belknap County Commissioners, who had originally asked that the convention approve a supplemental budget appropriation for the case but modified their position and agreed to pay it from the county's budget for legal expenses.
Last Updated on Thursday, 17 April 2014 12:29
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