THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0320, State of New Hampshire v. 

Kathryn D. Pate, the court on October 13, 2023, issued the 

following order:

The court has reviewed the written arguments and the record submitted 

on appeal, has considered the oral arguments of the parties, and has 

determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The 

defendant, Kathryn D. Pate, was charged with aggravated driving while 

intoxicated in violation of RSA 265-A:3, III (2014). The State appeals an order 

of the Circuit Court (LeFrancois, J.) granting the defendant’s motion to 

suppress her blood test results after finding that the State failed to establish 

probable cause for the arrest of the defendant, and that the release of the blood 

and blood test results was not authorized by RSA 329:26 (2017). Because we 

agree with the trial court that the statutory exception to the confidentiality of 

the defendant’s blood tests results does not apply, we do not address whether 

the State failed to establish probable cause for the arrest or reach the question 

of whether the blood draw implicated Part I, Article 19 of the New Hampshire 

Constitution. We affirm and remand.

The following facts are taken from the trial court order or could have 

been found by the trial court on the evidence before it. On April 21, 2019, 

Officer Rodolakis was dispatched to a parking lot after an unidentified 911 

caller reported a “nonresponsive” person in a black SUV. He arrived around 

the same time as fire and emergency rescue personnel. Upon arriving at the 

parking lot, the officer observed that the vehicle was running, and that the 

wiper blades were on even though it was not raining. Rodolakis approached 

the driver’s side door of the SUV, and saw the driver slumped over the center 

console with her head and an arm on the passenger seat. The vehicle was in 

reverse. He opened the door to the vehicle, determined that the driver was a 

female in her forties, later identified as the defendant, and that she was 

breathing. Rodolakis instructed the fire personnel to shut the vehicle off and 

remove the key. After he shook her awake, the defendant started mumbling in 

a slow, low tone, and Rodolakis observed her to have glassy and bloodshot 

eyes. He did not see any contraband or evidence of drug use in the car, but 

observed an aftermarket portable breath test in the backseat. Rodolakis

arrested the defendant and had her transported to the hospital where her blood 

was drawn by hospital personnel. The defendant was thereafter charged, inter

alia, with aggravated driving while intoxicated. See RSA 265-A:3, III.
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The defendant filed a motion to suppress any evidence “obtained as a 

result of the illegal entry and search of her vehicle” and of her “arrest without a 

warrant or probable cause,” and the “illegal forced blood draw.” Following a 

November 7, 2019 hearing at which Rodolakis was the only witness, the trial 

court granted the motion to suppress. The trial court determined that “there 

was not a basis for the search and seizure of the defendant’s motor vehicle 

triggered by the opening of the driver’s door by the officer,” and that “[t]he 

evidence obtained by the State after that unlawful intrusion is therefore 

suppressed.” The State filed a motion to reconsider, to which the defendant 

objected. The trial court denied the State’s motion, and the State appealed. 

We reversed, concluding that the officer’s act of opening the defendant’s door 

fell under the community caretaking exception to the warrant requirement. 

See State v. Kathryn D. Pate, No. 2020-0033 (non-precedential order at 4), 

2020 WL 739113 (N.H. Dec. 16, 2020).

On remand, the defendant renewed her motion to suppress. A hearing 

was held on March 15, 2022, at which the court heard arguments from both 

sides, but took no testimony. Thereafter, the court issued an order granting 

the defendant’s motion to suppress. The trial court found that the State had 

failed to establish probable cause for the arrest of the defendant. In addition, 

the trial court found that even if there had been probable cause for arrest, the 

State had failed to establish that the blood draw was taken by the hospital staff 

for the purposes of diagnosis and treatment. 

When reviewing a trial court’s rulings on a motion to suppress, we accept 

the trial court’s factual findings unless they lack support in the record or are 

clearly erroneous. State v. Bazinet, 170 N.H. 680, 683 (2018). We review the 

trial court’s legal conclusions de novo. Id.

In its order granting the motion to suppress, the trial court stated, in 

relevant part:

Under RSA 329:26 and under [State v. Davis, 161 N.H. 292 

(2010)], in order for the exception to confidentiality of defendant’s blood 

draw and results to apply, the State needs to submit evidence that the 

blood draw was part of the consensual treatment of the defendant. The 

State simply did not submit any evidence to establish the exception in 

this case.

In its order denying the State’s motion to reconsider, the Trial Court 

(LeFrancois, R. approved by Weaver, J.) clarified:

[I]n this case there was no evidence proffered by the State of any hospital 

staff providing any information about the blood draw. The defendant in 

this case was conscious, refusing medical treatment, and was not free to 

go because she was already under arrest when she arrived at the 
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hospital. There is a dispute in this case as to the purpose of the blood 

draw. The court does not assume it was done for the purpose of 

diagnosis and treatment when there is no evidence proffered by the 

State, the defendant is refusing medical treatment, and the defendant is 

in custody and cannot leave the hospital.

The State argues that the trial court erroneously shifted the defendant’s 

burden of proof to the State when it concluded that RSA 329:26 required the 

State to prove that the blood was drawn for the purposes of diagnosis and 

treatment. 

Assuming, without deciding, that the initial burden was on the 

defendant, we read the trial court’s orders as finding that the defendant had 

presented evidence sufficient to support the conclusion that the blood was not 

drawn for the consensual medical diagnosis and treatment, after which the 

burden shifted to the State to prove that the blood was drawn for medical 

diagnosis and treatment. See In the Matter of Salesky & Salesky, 157 N.H. 

698, 702 (2008) (interpretation of trial court order is a matter of law). We 

conclude that the evidence supports the trial court’s findings, and that the trial 

court did not misapply the law when it found that the burden had shifted to 

the State.

The only testimony offered at the hearing on the motion to suppress was 

that of Rodolakis. He testified that after he arrested the defendant the rescue

personnel were still there, and that he heard the defendant tell them, “leave me 

alone.” According to the officer, the rescue personnel asked him “to search her 

while she was on the stretcher,” at which point he told them that he “wanted to 

handcuff her,” so he handcuffed each of her arms to the stretcher. Thereafter, 

according to Rodolakis, the East Kingston Fire Department transported the 

defendant to the hospital because they “wanted to transport her as far as their

community caretaking obligation,” and he followed behind. Rodolakis also 

testified that when the defendant arrived at the hospital, she was treated by the

emergency room team and that he was in the room “[a]t times” when this 

happened. According to Rodolakis, the defendant was “belligerent” and 

“aggressive” toward hospital staff. On cross-examination, the officer agreed 

that the defendant had declined all treatment and care at the hospital, and 

that the declination was “clear and unambiguous.” Nevertheless, at some 

point, hospital personnel drew the defendant’s blood. While Rodolakis testified 

that at no time did he indicate to hospital staff that he wanted the defendant’s 

blood drawn, “[he] saw them draw blood for their medical assessment,” and

told staff that [he] was going to seize the blood.” He then asked hospital staff to 

“set it aside” for him, and said that he was going to return with a warrant.

RSA 329:26 (“Confidential Communications”) provides that confidential 

relations and communications between a physician and a patient are
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privileged, except as otherwise provided by law, and are not to be disclosed. 

The statute also states:

This section shall also not apply to the release of blood or urine 

samples and the results of laboratory tests for drugs or blood 

alcohol content taken from a person for purposes of diagnosis and 

treatment in connection with the incident giving rise to the 

investigation for driving a motor vehicle while such person was 

under the influence of intoxicating liquors or controlled drugs. The 

use and disclosure of such information shall be limited to the 

official criminal proceedings.

RSA 329:26 (emphasis added). We held in two cases that the defendants’ 

constitutional rights were not violated when the State obtained blood alcohol 

test results without a warrant. State v. Davis, 161 N.H. 292, 294, 299 (2010); 

Bazinet, 170 N.H. at 682-83, 686. In neither case was the question of whether 

the blood was drawn for purposes of medical diagnosis and treatment in 

dispute. Bazinet, 170 N.H. at 682 (defendant was transported to a hospital 

following a motor vehicle accident and arrived at the hospital unconscious and 

with critical injuries; phlebotomist testified that it was hospital’s routine 

medical practice to immediately obtain blood samples from trauma patients 

upon their arrival); Davis, 161 N.H. at 294 (undisputed that the hospital had 

withdrawn the defendant’s blood “as part of its treatment of the defendant”). 

Accordingly, we did not consider who bears the initial burden of proving that 

the exception to the statutory privilege applies. Nor do we need to decide that 

issue today. Through its cross-examination of Rodolakis, the defense 

presented evidence that the defendant did not consent to a blood draw for 

diagnosis and treatment, and the State presented insufficient evidence to rebut 

this. Accordingly, the exception to confidentiality set forth in RSA 329:26 does 

not apply. 

Having concluded that the evidence supports the trial court’s finding that 

the medical exception set forth in RSA 329:26 does not apply, we need not 

reach the question of whether the defendant’s constitutional rights were 

violated, and therefore need not address the State’s argument that the 

defendant bears the burden of proving that state action in some way motivated 

or caused the blood draw.

Affirmed and remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,

 Clerk