FRANKLIN — The case Merrimack County Sheriff Scott Hilliard, who is facing drunken driving charges, is on hold while a judge decides whether she can hear the case.

A hearing in Franklin District Court on the defense’s motion to suppress the evidence against Hilliard, which had been scheduled for Monday, was canceled.

On Oct. 28 Judge Lucinda Sadler initiated a conference call to Hilliard’s attorney, Jared Bedrick, and Tilton Police Department Prosecutor Jesse Renault-Smith, and told them she might not be able to hear the case because of certain conflicts she had involving the case.

A one-sentence entry in the court record states, “(The) court puts issues of potential conflicts on the record.”

Bedrick said Monday that in the three-way phone call the judge “raised concerns that might be potential conflicts for her in hearing this case.” He declined to elaborate. “That’s as far as I can go,” he said.

Hilliard, 58, of Northfield, is facing charges of aggravated DWI, DWI, and having an open container of alcohol inside the car stemming from his arrest during the evening of Aug. 9 in Tilton. At the time of his arrest he had a blood alcohol level of 0.214 based on a breath test, according to the official police report.

Bedrick’s motion argues that because police never saw Hilliard behind the wheel of his car parked at the 99 Restaurant, and also because Hilliard’s wife had driven to the restaurant and therefore could have driven her husband home, police had no cause to arrest him without a warrant. Having no justifiable reason to arrest Hilliard, any incriminating evidence police may have against him should not be admitted at any court proceeding.

Tilton Police Department Prosecutor Jesse Renauld-Smith, in his rebuttal to Bedrick’s motion, said there were circumstances present at the time Hilliard was arrested that justified arresting him without a warrant.

Renault-Smith said it would have taken police too long to obtain an arrest warrant during the evening. While going through the process of drawing up a warrant and then relaying it to an on-call judge and waiting for the judge to review the warrant and sign it before returning it to police, Hilliard’s blood alcohol level would be decreasing. It would have decreased even more during the time it would have taken the police, armed with the warrant, to go to Hilliard’s location and affect the arrest, and then drive him to medical facility where a blood sample would be drawn, according to the court filing.

In addition, had Hilliard not been arrested immediately he could have decided to drive before he was sober “and further cause personal injury or damage to property,” Renauld-Smith argued.

Although Hilliard’s wife drove to the 99 Restaurant parking lot, she arrived after Hilliard had been placed under arrest, according to Reanult-Smith’s response to Bedrick’s motion.

Bedrick said the attorneys are now waiting to find out when the suppression hearing will be rescheduled. He said the hearing would likely take place before another judge.

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