Blood alcohol evidence suppressed because defendant reasonably believed police were recording call and reasonably felt inhibited in conferring with counsel.

 State v. Gagne, 2016 VT 68 (filed June 10. 2016).

ROBINSON, J. Before trial, defendant moved to suppress the results of his alcohol breath test on the ground that he was not able to meaningfully communicate with his lawyer before submitting to the test due to his belief—which turned out to be well-founded—that his conversation with counsel was being recorded by the police. The trial court denied the motion, and a jury convicted defendant of driving under the influence, On appeal, defendant argues that the trial court erred by denying his motion to suppress. We agree and reverse the conviction for driving under the influence.

In this case the officer forgot to turn off the recording device when defendant was about to speak to his attorney by phone. Defendant never asked the officer if he was being recorded, nor did he request that the police turn off the recording device, but throughout the booking process, defendant repeatedly stated that he knew that everything was being recorded. After a thirty minute conversation between defendant and counsel, defendant agreed to a breath sample, which resulted in a blood-alcohol concentration (BAC) of 0.121%.

Defendant moved to suppress the breath test results, arguing that defendant's belief that his conversation with counsel was being recorded caused him to feel inhibited in seeking legal advice. The court concluded that, although defendant thought his conversation was being recorded, his belief was not objectively reasonable, and he was therefore not entitled to suppression. That conclusion is a legal conclusion that we review anew, without deference.

We apply an objective test, asking whether a reasonable person in the defendant's position would have reasonably felt inhibited in communicating with counsel such that he or she was denied meaningful consultation with an attorney.

Given the officer's silence in response to defendant's multiple statements that he knew he was being recorded, we conclude that a reasonable person in defendant's position under the circumstances of this case would feel inhibited in conferring with counsel. Accordingly, the motion to suppress should have been granted, and we reverse the judgment of conviction for driving under the influence.