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.

Court affirms suppression of evidence of drugs seized after dog sniff search following traffic stop that was "prolonged beyond the time reasonably required to complete the mission" of issuing a ticket for the traffic violation.

State v. Alcide, 2016 VT 4 ( filed - January 8, 2016)

DOOLEY, J. Defendant I was charged with possession of heroin and cocaine and sought to suppress all evidence of drugs seized from his vehicle after a police dog indicated the presence of drugs. The trial court found that the contraband was obtained through the illegal expansion of the scope of a motor vehicle violation stop into a criminal drug investigation, suppressed the evidence, and dismissed the charges. The State of Vermont appeals the trial court's grant of defendant's motion to suppress and dismiss. On appeal, the State contends that a minimal delay following the completion of a traffic stop for a dog sniff is reasonable under federal and state law. However, in light of the U.S. Supreme Court's decision in Rodriguez v. U.S., ___ U.S. ___, ___, 135 S.Ct. 1609, 1612 (2015), we affirm the trial court's decision to dismiss the case against defendant.

A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. Rodriguez  established that the Fourth Amendment does not permit a dog sniff conducted after the completion of a traffic stop that is "prolonged beyond the time reasonably required to complete the mission" of issuing a ticket for the violation.

After the corporal informed defendant he would be mailing a ticket for operating a motor vehicle while under suspension defendant denied permission for a search of the vehicle. The corporal returned to his cruiser and released the drug dog and walked him around defendant's vehicle. The dog alerted to the presence of drugs upon reaching the driver's side door. The corporal informed defendant of the alert; he again asked for permission to search, and defendant denied permission. Approximately seven to eight minutes had passed from the time the corporal stopped defendant until he deployed the drug dog.

We agree with the trial court that the stop "extended beyond the time reasonably necessary . . . to address the traffic offense," as the corporal deployed the drug dog after informing defendant he would mail a ticket for the traffic violation, the point at which he presumably accomplished the purpose of the stop.

Criminal Procedure. Court affirms denial of suppression motion and validates seizure without cause by officer acting in private capacity

 State v. Young (2009-252) (29-Oct-2010) 2010 VT 97(Dooley, J.) 

Defendant Jason Young appeals from the denial of his motion to suppress evidence, obtained by a police officer after defendant drove into the driveway of the officer’s house.   

A little past ten o’clock on a mid-summer’s eve, after socializing with friends, defendant departed Barre in his pick-up truck to return to his home in Marshfield, triggering an improbably unlucky sequence of events. 

Shortly after defendant turned onto Plainfield Brook Road, a vehicle approached his truck from behind.  The vehicle was “approaching pretty rapidly,” so Defendant decided to take his next right onto Cassie Street, “assuming the vehicle would continue straight past.” 

Much to defendant’s dismay, the vehicle followed.  Defendant turned right at his next opportunity, this time pulling onto Valley View Circle.  Again, the vehicle followed. 

Defendant next began to search for an “available driveway to turn around in easily” and made his choice.  He pulled into the driveway, “assum[ing] the vehicle behind [him] would continue past.” 

It did not. 

Defendant testified to thinking that, “coincidentally, the person must live there.”  He was correct. 

What he did not realize at the time, however, was that the person who followed him and lived in the house was an off-duty police officer dressed in plain clothes.

Defendant put his truck in reverse and began to back out, but the vehicle pulled into the driveway, blocking defendant from exiting the driveway.  After blocking defendant in his driveway the officer observed that defendant “smelled strongly of alcohol, had bloodshot and watery eyes, and had slurred speech.” 

The trial court concluded that the officer was acting as a homeowner during this initial encounter, and not as a police officer, and thus, that no seizure occurred until the officer next ordered defendant out of his truck and requested that he perform the sobriety tests. 

We agree with the trial court that there was no seizure until the officer had grounds to do so.  We concur with the trial court’s conclusion that the officer was initially acting as a concerned homeowner, and not as a police officer, and that his conduct during the initial encounter therefore fell outside the scope of the Fourth Amendment.