Divided Court reverses denial of motion to suppress breath test, holding officer may not require DUI suspect to elect whether to take a second test before providing results of first test.

 

Statev. Ettore, 2024 VT 52 [filed

 

COHEN, J. In this interlocutory appeal, defendant Eileen Ettore challenges the trial court’s denial of her motion to suppress an evidentiary breath-alcohol test, which she filed in both her criminal and civil dockets. We agree with defendant that, under the plain language of 23 V.S.A. §§ 1202(d)(5) and 1203(c), law enforcement must provide a suspect with the results of their first breath test before requiring the suspect to elect whether to take a second test. We reverse the court’s decision and remand for additional proceedings in the criminal case and for entry of judgment in defendant’s favor in the civil suspension proceedings.

Defendant argued below that the officer violated her implied-consent rights by asking her if she wanted a second test before informing her of the results of the first test. The relevant language in the informed-consent statute is as follows:

At the time a test is requested, the person shall be informed of the following statutory information: . . .

 A person who is requested by a law enforcement officer to submit to an evidentiary test administered with an infrared breath-testing instrument may elect to have a second infrared test administered immediately after receiving the results of the first test.

23 V.S.A. § 1202(d)(5). Section 1203(c) provides that “[a] person tested with an infrared breath-testing instrument shall have the option of having a second infrared test administered immediately after receiving the results of the first test.”  

The trial court concluded in relevant part that defendant’s right to be informed about the ability to elect a second breath test matured at the time the officer requested an evidentiary breath sample under and that the officer properly informed defendant of her implied-consent rights, including her right to request a second breath test upon receiving the results of the first, before she took the first test.

We disagree and conclude, based on the plain language of the laws, that the Legislature intended that suspects possess the necessary information to make an informed decision about the exercise of their statutory rights. The officer asked defendant if she wanted a second test before she was provided the results of the first test. Without the test results, defendant could not make a fully informed decision about whether to request a second test. The process laid out by statute was not followed.

Mindful of the important rights at stake, and the critical need for informed decisionmaking recognized by the Legislature, we reverse the trial court’s decision in this case. Defendant is therefore entitled to judgment in her favor in the civil-suspension proceedings and we remand the civil matter for entry of such judgment. Granting the motion to suppress does not dispose of the two pending criminal charges against defendant, however, and the criminal case is thus remanded for additional proceedings

Reversed and remanded for additional proceedings

 

CARROLL, J., (Joined by Waples,J.) dissenting. Contrary to the majority’s holding, neither statute requires an officer to ask a suspect after the first test is administered if they would like to take a second test. The verb “elect” in § 1202(d)(5) gives the suspect the choice to take another test but puts no duty on the police officer to prompt the suspect to make that choice. See 23 V.S.A. § 1202(d) (“At the time a test is requested, the person shall be informed of the following statutory information.” (emphasis added)). Section 1203(c)’s “shall have the option of having a second infrared test administered immediately after receiving the results of the first test”  means that a law-enforcement officer must instead not intentionally deprive a suspect of the option at the appropriate time.

In sum, § 1202(d)(5) and § 1203(c) required that Officer Perkins advise defendant of her right to take a second test when Officer Perkins requested the first evidentiary test. There is no dispute Officer Perkins advised defendant of this right. But now, for the first time, the majority holds that appropriately disclosing the implied-consent warnings under the statute is not enough. Moreover, for the first time, the majority does not require a showing of bad faith or prejudice to suppress a breath test. Indeed, the majority no longer requires a defendant to even argue bad faith or prejudice to suppress a breath test. Instead, for the first time, suppression is mandatory if the officer deviates in the slightest way from reminding a defendant what was already disclosed to the defendant and to which the defendant already affirmatively acknowledged. I submit that this result goes beyond the relevant statutes, our precedents, the trial court’s credibility determinations, and defendant’s own arguments on appeal.

 I must respectfully dissent.