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 8/30/2024]

 

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.

 

Divided Court reverses order granting motion to suppress, holding the trial court erred in concluding the totality of the circumstances did not provide reasonable suspicion that defendants were driving while impaired.

 

State v. Sinquell-Gainey, 2022 VT 19 [filed 5/6/2022]

 

CARROLL, J. The State appeals from a trial court order granting defendants’ motion to suppress evidence obtained by law enforcement after an automobile stop. The State argues that a Newport police officer had reasonable suspicion to stop defendants because the totality of the circumstances supported reasonable suspicion of impaired driving. We agree that the stop was justified based on reasonable suspicion of impairment. We therefore reverse and remand.

As to a purported centerline violation on the interstate, the trial court credited dash-mounted camera footage, which showed that defendants’ vehicle touched but did not, in fact, cross the centerline. The statute cited as the basis for the violation, 23 V.S.A. § 1031, driving to right, does not apply on a multi-lane roadway restricted to one-way traffic. The court reasoned that even if defendants had crossed the centerline,  defendants would have not violated § 1031 because the statute does not apply “upon a roadway restricted to one-way traffic.” Id. § 1031(a)(4). 

The trial court rejected the State’s argument under a totality-of-the- circumstances analysis. The court concluded that the entry into the gas station through an exit-only access, the unprovoked stop at the flashing yellow light, the wide left turn onto the access road, and the brief activation of the high beams did not collectively give rise to reasonable suspicion of driving under the influence.

Our review of a grant of a motion to suppress involves a mixed question of fact and law. When reviewing the decision to grant a suppression motion, we review a trial court’s findings of fact for clear error and its legal conclusions de novo. We look to the totality of the circumstances in judging the reasonableness of a DUI stop where a traffic violation does not form the basis of the stop. This avoids a “divide-and-conquer analysis” that scrutinizes each factor independently and accords no weight to conduct that alone is innocuous. The totality-of-the-circumstances standard allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.

For example, in State v. Pratt, we affirmed a denial of a motion to suppress evidence where a state trooper pulled over a car for drifting back and forth within a lane on Interstate 89 for approximately five miles. 2007 VT 68, ¶ 7. Reasonable suspicion of driving while intoxicated is assessed by examining the totality of the circumstances and consequently may be supported by evidence of erratic driving, whether or not it amounts to a specific traffic violation. Further, we rely on the expertise of the officer in recognizing signs of impaired operation. Id. ¶ 6

We do not disagree with the trial court’s conclusion that the driver’s wide left turn may be “insufficient” on its own to develop reasonable suspicion, but we disagree that this was irrelevant in the context of the other factors the trial court found. Likewise, we disagree that defendants’ entrance through a marked exit into the gas station forty minutes after the bars had closed in the area, the complete stop at the flashing yellow light, the brief activation of the high beams, and the wide left turn, when considered together, did not provide reasonable suspicion of impaired driving. Alone, any one of these events may not give rise to reasonable suspicion. But the occurred in a continuous stream of activity in a relatively short amount of time, all observed by the same police officer.

This is not a close case. The trial court erred when it concluded that the totality of the circumstances did not provide reasonable suspicion that defendants were driving while impaired.

The dissent’s suggestion that all the operator’s driving maneuvers were consistent with cautious driving, post, misunderstands our standard of review. The recognition that law enforcement may draw on their experience and training is precisely the reason why courts must not analyze each factor independently.

Reversed and remanded for further proceedings.  

COHEN, J., dissenting. I would affirm the trial court’s decision to grant defendants’ motion to suppress based on lack of reasonable suspicion, and therefore respectfully dissent. None of the alleged infractions individually create reasonable suspicion of a traffic violation, and the totality of the circumstances does not amount to reasonable suspicion of driving under the influence (DUI).

The majority concludes that the following facts supported reasonable suspicion of impaired driving: the bars closed at 1:00 a.m.; within an hour of the bars closing, defendant drove an out-of-state vehicle two to three miles per hour under the speed limit; defendant stopped at a flashing yellow light; defendant failed to put on his turn signal before turning left onto the interstate access road; defendant swung wide on his turn; defendant briefly flashed the car’s high beams before using his turn signal; and defendant’s left wheels touched the highway centerline. In my view, these facts do not, as a whole, create an objectively reasonable suspicion of impaired driving.

In determining the legality of a stop, courts consider from an objective standpoint whether, given all the circumstances, the officer had a reasonable and articulable suspicion of wrongdoing. It is this objective standard that causes the State’s arguments to fail. As Justice Johnson wrote in her dissent in Pratt, “[w]hile otherwise innocent behavior might sometimes appear suspicious to a trained police observer, the standard for a constitutionally permissible stop of a vehicle nevertheless remains that of ordinary common experience.” Pratt, 2007 VT 68, ¶ 10 (Johnson, J., dissenting).

Given the lack of objectively reasonable suspicion of any traffic violation or impaired driving under the totality of the circumstances, I would affirm the trial court’s decision to grant defendants’ motion to suppress. I am authorized to state that Chief Justice Reiber joins this dissent.

How cited

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.

Failure to use turn signal justifies stop. In DUI case SCOVT affirms denial of motion to dismiss that argued failure to signal a turn while in designated turning lane was not illegal.

State v. Kevin W. Cook, 2018 VT 128 [filed 11/30/2018]


EATON, J. Following his conditional guilty plea to driving under the influence, defendant Kevin Cook appeals the trial court’s denial of his motion to dismiss, in which he argued that his failure to signal a turn was not illegal under the circumstances and thus did not provide a reasonable, articulable suspicion for the arresting officer to stop his vehicle. We affirm.

Preparing to turn right onto Main Street, defendant drove into the right-turn-only lane . An officer watched defendant make the right turn from the designated right turn lane without signaling and stopped defendant’s car for that reason. During the traffic stop, the officer smelled alcohol on defendant and conducted field-sobriety tests. Ultimately, defendant was charged with driving under the influence of alcohol (DUI).

Defendant contends that he was not required to use his signal because the only legal path his vehicle could take from a right-turn-only lane was to turn right, as he did.

In relevant part, § 1065 provides that “[a] right or left turn shall not be made without first giving a signal of intention either by hand or by signal in accordance with section 1064.” 23 V.S.A. § 1065(a). Section 1064 explains that “[t]he signals provided for in section 1065 . . . shall be used to indicate an intention to turn, change lanes, or start from a parked position,” id. § 1064(e).

The Vermont Legislature could have enacted turn-signal statutes that specifically exempt the requirement of turn-signal use when turning in the anticipated direction from a turn-only lane. It is not up to us to substitute our judgment for the Legislature’s, even were our judgment to differ.

Because Vermont’s motor-vehicle statutes required defendant to signal before turning, we conclude that the officer here had a reasonable, articulable suspicion of wrongdoing. The motion to dismiss was properly denied.

Divided Court rules the admission of evidence of a refusal to submit to a blood test in the context of a DUI criminal proceeding does not violate the Fourth Amendment of the U.S. Constitution.

State v. Rajda, 2018 VT 72 [filed July 20, 2018]

REIBER, C.J. In the above consolidated cases, the State appeals the trial court’s interlocutory orders granting defendants’ motions in limine seeking to suppress evidence of their refusal to submit to blood tests to determine if they were operating a motor vehicle under the influence of drugs (DUI). The trial court granted the motions in limine based on Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016). The State challenges the trial court’s interpretation of Birchfield, arguing that the U.S. Supreme Court indicated therein that evidence of a refusal to take a warrantless blood test in the context of a DUI arrest and prosecution could be admitted at trial as evidence of guilt. Defendants respond that the constitutional issue has been effectively mooted by a post-Birchfield amendment to Vermont’s implied consent law and that, in any event, the trial court correctly construed Birchfield and other related federal law to prohibit the admission of evidence of a refusal to consent to a warrantless blood test.

We conclude that the amendment to the implied consent law did not moot the constitutional issue before us. We further conclude that Fourth Amendment does not prohibit admitting in a criminal DUI proceeding evidence of a defendant’s refusal to submit to a warrantless blood test requested pursuant to Vermont’s implied consent law. Accordingly, we reverse the trial court’s decisions granting defendants’ motions in limine and remand the cases for further proceedings consistent with this opinion.


ROBINSON J., dissenting. I would dismiss these appeals as moot.. I am authorized to state that Judge Davenport joins this dissent.

Police not required to warn suspect of consequences of refusing field sobriety test.

State v. Farrow, 2016 VT 30 (filed March 11, 2016).

ROBINSON, .J. This case calls upon us to consider the admissibility of evidence of defendant's decision not to complete a field sobriety exercise as requested by a police officer in the context of an answer to a question we left open in a prior decision: Under the Vermont Constitution, is a defendant's refusal or failure to perform voluntary field sobriety exercises admissible if the defendant was not advised at the time of the refusal that evidence of a refusal to perform the exercises may be admissible in court? We conclude that the refusal evidence is admissible without regard to whether police advised the individual that a refusal to perform the exercises could be admitted as evidence in court. Because we reject defendant's argument to the contrary on this point, as well as her arguments that on the record in this case the evidence in question was irrelevant and unduly prejudicial, we affirm.


Defendant challenges the trial court's admission of the video recording and the trooper's testimony concerning defendant's conduct and ultimate cessation of the MRT on the basis of the Vermont Rules of Evidence According to defendant, in light of the absence of any evidence supporting the validity of the exercise in the first place, and the presence of many explanations for her decision to stop the exercise, the evidence in question proved nothing, and its admission was prejudicial because it suggested otherwise to the jury. We conclude that the trial court did not abuse its discretion in admitting the evidence to show that defendant discontinued her participation in the exercise because: (1) the evidence may have some probative value in showing consciousness of guilt, and (2) especially given its instructions to the jury, the trial court could reasonably conclude that the prejudicial effect of the evidence did not substantially outweigh its probative value.


Defendant's appeal raises a question that this Court has previously left unresolved: whether the Vermont Constitution requires—as a prerequisite to use of the individual's refusal as evidence in court—that an officer advise an individual that refusal to perform a field sobriety exercise may be admitted as evidence of consciousness of guilt. We reject defendant's Fourth Amendment argument. It is well established that police may, without a warrant but upon reasonable suspicion, ask a driver to perform field sobriety exercises. To the extent defendant is arguing that the Fourth Amendment, and its Vermont Constitution analog in Chapter 1, Article 11, nevertheless require some sort of warning to an individual asked to perform field sobriety exercises, she makes no argument linking those constitutional provisions to the claimed warning requirement.


Defendant argues that the protections against compelled self-incrimination in the Vermont Constitution extend to nontestimonial evidence because Article 10 provides that a person cannot be compelled to "give evidence against oneself," whereas the Fifth Amendment provides that a person cannot be compelled to be "a witness against himself." The logic of defendant's argument might support a conclusion that evidence of an individual's refusal to perform an exercise is inadmissible in court—an issue we do not revisit here. But defendant does not provide a logical connection between Article 10, as she understands it, and a requirement that an individual be warned. We emphasize that the strength of our holding on this point is limited by the vagueness of defendant's arguments on appeal.

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.

The yellow centerline is not a guideline.

State v. Howard, 2016 VT 49 (filed 4/29/2016)

REIBER, C.J. In this driving under the influence case, the State appeals the granting of defendant's motion to exclude evidence collected from a traffic violation stop of his car. The trial court granted the motion and dismissed the case because it concluded that the trooper who conducted the stop did not have a reasonable and articulable suspicion that defendant committed a traffic violation. We reverse and remand.

The inquiry in cases involving traffic violation stops is merely whether the officer had a reasonable suspicion of a wrongdoing, not whether the defendant actually committed a wrongdoing.

Under 23 V.S.A. § 1031, drivers are generally required to drive on the right half of the roadway.  If the road has a center line, touching the center line is not in itself a traffic violation, but any crossing of the center line—no matter how slight—is a traffic violation.

The court specifically found that defendant crossed the center line. Crossing the center line gave the trooper reasonable suspicion that defendant committed a traffic violation as soon as this crossing occurred.

Reversed and remanded for further proceedings.

SCOVT NOTE: 23 V.S.A. § 1031, driving to right, does not apply on a multi-lane roadway restricted to one-way traffic. See Id. § 1031(a)(4);  State v. Sinquell-Gainey, 2022 VT 19 [filed 5/6/2022].

SCOVT affirms ruling that finds unpersuasive State’s blood alcohol relation-back testimony.

State v. Nugent, 2014 VT 4 (10-Jan-2014)

REIBER, C.J. The State of Vermont appeals from the trial court’s grant of defendant’s motion for judgment as a matter of law on his civil driver’s license suspension. The trial court held that the State did not prove by a preponderance of the evidence that defendant’s blood alcohol concentration (BAC) was 0.08 or above at the time he operated a motor vehicle. The court found the State expert’s relation-back calculation to be unreliable because her assumed alcohol elimination rate of 0.015 percent per hour was speculative. We affirm the trial court’s decision.

Because the police tested defendant’s BAC more than two hours after the time of operation, the State was required to prove through relation-back evidence that defendant’s BAC was over the legal limit while he was driving. On cross-examination, defendant questioned the State expert’s assumption that the alcohol elimination rate was 0.015 percent per hour, on the grounds that elimination rates vary between individuals and the expert could only speculate as to defendant’s elimination rate. The expert conceded that the elimination rate varies by individual and that she had no scientifically principled way of distinguishing between her assumed elimination rate and different elimination rates offered by other experts in the field.

The trial court ruled the opinion was admissible but was of insufficient weight for the court to establish BAC at time of operation. This finding is reviewed for clear error, as the trier-of-fact is in the best position to determine the weight and sufficiency of the evidence presented. The trial court’s conclusion was supported by the expert’s testimony, in which she offered no credible reason why her assumed elimination rate was reliable as applied to defendant, nor did she testify as to the likelihood that defendant’s BAC was below 0.08 while driving. The trial court’s reliability finding was not error, much less clear error.