Divided court affirms conviction for refusal to take evidentiary breath test.

State v. Erika M. Schapp, 2019 VT 27 [filed 5/17/2019]

EATON, J. Defendant appeals a conviction of refusal to submit to an evidentiary breath test to determine blood-alcohol concentration. Defendant argues that (1) the court erroneously admitted evidence of her refusal to take a preliminary breath test (PBT), (2) the State failed to meet its burden of proving the “reasonableness” requirement for criminal refusal beyond a reasonable doubt, and (3) the State failed to prove that she refused the test. We affirm

ROBINSON, J., dissenting. The majority’s conclusion that refusal to consent to a roadside preliminary breath test (PBT) is admissible as evidence in connection with a charge of criminal refusal to take an evidentiary breath test pursuant to 23 V.S.A. § 1201(b) runs afoul of the Constitution. Because the erroneous admission of evidence concerning defendant’s refusal to submit to the PBT was not harmless, I respectfully dissent. I am authorized to state that Justice Skoglund joins this dissent.