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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district No. 2005-625 THE STATE OF NEW HAMPSHIRE v. PETER JOHNSON Argued: May 21, 2008 Opinion Issued: June 27, 2008 Kelly A. Ayotte, attorney general (Diana E. Fenton, attorney, on the brief, and Susan P. McGinnis, senior assistant attorney general, orally), for the State. Law Offices of Robert J. Moses, of Amherst (Robert J. Moses on the brief and orally), for the defendant. GALWAY, J. The defendant, Peter Johnson, appeals his conviction in Superior Court (Lewis, J.) for driving while intoxicated, second offense. See RSA 265:82 (2004) (repealed and replaced by RSA 265-A:2 (Supp. 2007)); RSA 265:82-b (2004) (repealed and replaced by RSA 265-A:18 (Supp. 2007)). The defendant argues that the trial court erred in its jury instructions and in its answer to a question from the jury during its deliberations. We affirm. The record supports the following facts. On November 28, 2002, the defendant was stopped by Officer Brett Sullivan of the Peterborough Police Department. Sullivan suspected that the defendant had been drinking and requested that the defendant submit to field sobriety tests. After determining

that the defendant failed the tests, Sullivan arrested him for driving while intoxicated. Following his arrest, the defendant was transported to the police station. As part of the booking procedure, Sullivan reviewed the Administrative License Suspension (ALS) form with the defendant. Sullivan testified that he read the form to the defendant at least three times, but each time the defendant stated that he did not understand it. The defendant then read the ALS form for himself, but continued to profess that he did not understand it. While they were reviewing the ALS form, Sullivan repeatedly asked the defendant whether he would submit to a breath test, but the defendant would not make a decision. Also, during the time they reviewed the ALS form, the defendant, at his request, was permitted to use the restroom and to make two attempts at contacting an attorney. The defendant was unable to contact an attorney. Sullivan testified that after approximately forty-five to fifty minutes of reviewing the ALS form with the defendant, he informed the defendant that he had five minutes more to decide whether to take the test or he would be deemed to have refused. At the end of the five minutes, Sullivan again asked the defendant to submit to a breath test, and the defendant refused. Sullivan testified that following his refusal, the defendant was sent for further processing, including fingerprinting and photographing, receiving his Miranda rights, meeting with the bail bondsman, and receiving bail. After this processing was completed, the defendant stated that he had changed his mind and would now take a breath test. The defendant, in contrast, testified that he informed Sullivan that he changed his mind after just the photographing and fingerprinting, and that he believed the time between his refusal and his recantation was approximately six or seven minutes. Sullivan informed the defendant that because he had been released from police custody and was "on his way out the door," no test would be administered. Prior to the close of trial, the defendant offered a proposed jury instruction on the issue of refusal to submit to chemical testing and recantation of that refusal. The trial court, however, gave its own instruction, to which the defendant objected. During deliberations, the jury submitted a question seeking clarification of the instruction regarding refusal and recantation. The defendant submitted a proposed answer which, over objection, the trial court rejected in favor of its own. The defendant was subsequently convicted, and this appeal followed. On appeal, the defendant first contends that the trial court erred by not giving the instruction he proposed on refusal and recantation. The trial court, however, need not use the specific language requested by the defendant and has discretion to decide whether a particular charge will assist the jury in reaching a verdict. State v. Dixon, 144 N.H. 273, 282 (1999). Thus, we find no

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error in the trial court's decision not to give the precise instruction proposed by the defendant. The defendant next contends that the instruction the trial court gave relative to recantation misstated the relevant law. "[T]he purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case." State v. Littlefield, 152 N.H. 331, 333-34 (2005) (quotation omitted). When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their entirety, as a reasonable juror would have understood them, and in light of all the evidence in the case. Id. at 334. We determine if the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case. Id. Whether or not a particular jury instruction is necessary, and the scope and wording of the instruction, are within the sound discretion of the trial court, and we review the trial court's decisions on these matters for an unsustainable exercise of discretion. Id. The trial court's instruction on refusal and recantation stated: Now, under New Hampshire law, every driver is deemed to have consented to chemical testing to determine the alcohol content in his or her system. The defendant may refuse to submit to such a test, but any such refusal to take the tests may be considered by you as, as to the driving under the influence of intoxicating liquor charge, as evidence of guilt, provided you are satisfied beyond a reasonable doubt that he was advised that his refusal could be used against him in court. You may also consider any reasons the defendant may have had for not taking the test that had nothing to do with guilt as bearing on the question of whether any refusal to take the test is evidence of guilt or not evidence of guilt. It is up to you to determine whether any refusal by the defendant to take or perform the certain tests was because he feared results which might tend to prove that he was under the influence of intoxicating liquor, or because of other reasons that are inconsistent with any fear that the results might tend to prove he was under the influence. Moreover, any refusal by a person to cooperate with the completion of the Consent Administrative License Suspension Form may not be the same as a refusal to submit to a chemical test. The State has the duty

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