Feb. 18—CONCORD — Merrimack County Sheriff Scott Hilliard's last chance to stay out of jail — an appeal of his 2019 drunk-driving conviction — now rests with the New Hampshire Supreme Court.
Three justices heard Hilliard's appeal on Thursday. His lawyer said Hilliard's blood test should be thrown out because a trial court judge had ruled that Hilliard's warrantless arrest was illegal.
But an appellate prosecutor said the arrest was lawful, and it didn't negate the blood test that followed.
"You can affirm a trial court if it reaches the right result for the wrong reason," said Elizabeth Woodcock, an assistant attorney general.
Hilliard, the Merrimack County sheriff for 13 years, was arrested in August 2019 in Tilton.
Town police spotted him exiting a restaurant with a bag of takeout food. A drink was in the console of his Cadillac, he admitted to police that he had four drinks for lunch, and his blood-alcohol content tested at 0.246, three times the legal limit.
His trial was moved to Nashua, and Circuit Court Judge James Leary ruled that though his arrest was illegal, Hilliard properly consented to have his blood taken and the results could be used at trial.
Leary had ruled that the arresting officer did not see Hilliard driving, so he should have obtained an arrest warrant. He nonetheless convicted Hilliard of aggravated DWI. His five-day sentence is on hold while the case is under appeal.
Hilliard initially said he made a mistake, asked for forgiveness, stayed on the job and considered running for re-election. But Gov. Chris Sununu said the fellow Republican should resign, which Hilliard did a month after his conviction.
He also fought the conviction on appeal.
Hilliard's lawyer, Jared Bedrick, said Hilliard did not have the ability to give voluntary consent for a blood test because of the illegal arrest.
"The fact (that) he is under unlawful arrest, they are exploiting the illegality to get (consent for a blood test)," he said.
Much of the argument dealt with whether Hilliard had the ability to voluntarily consent to provide a blood sample. Bedrick said the sheriff was in a jail and in state custody, which hampered his ability to voluntarily consent.
Woodcock said the 20 minutes between Hilliard's arrest and the time he signed a consent form was enough time for him to consider everything.
"Bowing to the inevitable is something that happens in a lot of criminal cases," she said.
On a question by Justice Patrick Donovan, Bedrick said the court cannot consider Hilliard's law enforcement experience because it was never brought up at trial.
Only three justices heard the case. Attorney General Gordon MacDonald has yet to be sworn in as chief justice. Justice Gary Hicks recused himself from the case.