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DUI -
Refusal - Suppression Of Evidence Docket
Nos. 725-6-99Bncr and 52-6-99Bncs
STATE
OF VERMONT
v.
CHRIS SARGENT
Bennington District Court
September 27, 1999
HOWARD,
J. This matter came before the court on September 14,
1999, on defendant’s Motion to Suppress in the criminal
matter and for merits on the civil suspension matter.
The defendant argues that her actions during processing
for DUI did not amount to a refusal of the evidentiary
breath test as alleged by the state. She therefore seeks
judgment for her in the civil suspension matter and an
order that evidence of any alleged refusal be suppressed
in the criminal case. The state argues that they have
met their burden of demonstrating a refusal occurred and
should have judgment in their favor on the civil
suspension matter and the suppression motion should be
denied in the criminal case. Based on the evidence
presented, the court makes the following Findings of
Fact, Analysis and Conclusions of Law, Decision, and
Order.
Findings of Fact
1. On May
27, 1999, at approximately 10:20 p.m., the Manchester
police received a call on a motor vehicle accident.
Trooper O’Brien initially responded to the scene as he
was at the department when the call came into it.
Officer Hall responded to the scene after having to deal
with another matter.
2. When
Officer Hall reached the scene, he observed EMT
personnel dealing with a woman later identified as the
defendant. He observed a vehicle that had been involved
in an accident striking a telephone pole. The front of
the vehicle was substantially damaged.
3. The
defendant is 64 years old. She has two years of college
and has worked at various jobs. Presently she works as a
folk artist.
4. Upon
approaching the defendant, he could hear her telling the
EMT personnel that she did not want to be treated and
did not want to go to the hospital. He could observe
some injuries. She had a cut about the lip, bruises and
cuts on her legs and arms. Officer Hall spoke to the
defendant, encouraging her to go to the ambulance. She
did eventually go to the ambulance but continued to
state that she wanted to leave and go home and did not
want treatment or to be brought to the hospital.
5. The
defendant did not have health insurance. She did not
want to incur any costs for medical treatment.
6.
Officer Hall also observed that the defendant’s speech
was slurred, her balance appeared to be off as she
walked, he smelled a strong odor of alcohol on her, and
her eyes were watery. He asked the defendant if she had
been drinking any alcohol, and she indicated she had one
glass of wine earlier in the evening. She also admitted
she was operating the vehicle that had the accident. She
indicated she had been blinded by an oncoming vehicle’s
headlights and had gone off the road and hit the pole.
Officer Hall did not request she do any field sobriety
tests, as he felt she was not being cooperative in
general and that he had already observed her lack of
balance. She was asked to take an alcosensor test and
declined to do so.
8. The
defendant used some swearing in this period and was not
cooperative in discussing the situation with the EMT
personnel or Officer Hall. At one point she became very
adamant that she was leaving the scene. Officer Hall
then informed her she could not leave and that she was
going to be processed for operating under the influence.
9. She
was transported in the cruiser to the police station.
She requested a cigarette during the ride but was told
she could not have one.
10. At
the station, she was read her “Miranda Rights”. She
indicated she understood these and did not request an
attorney. She was then read the “informed consent”
information. This included her right to consult with an
attorney before deciding to take the test or not. She
indicated a desire to speak with counsel, but would not
name an attorney. Officer Hall telephoned the public
defender on call that evening.
11. The
defendant was given access to the phone and spoke to the
lawyer. Officer Hall left the room during this time. He
heard her slam the telephone down after a period, and he
went back in. The defendant said she was not speaking to
“any fucking public defender.” After some discussion
about the test, Officer Hall re-contacted the lawyer, as
he was not sure the defendant had made a decision about
the test. During this period of first contacting an
attorney and the second attempt, the defendant was
verbally abusive at times. When she was told she could
not have a cigarette, she swore at the officer and told
him she would “get a lawyer and fight you.”
12. The
defendant also wanted to have a cigarette during this
period and was verbally abusive on being told this was
not permitted. She also placed a lozenge in her mouth at
one point and had to be told to take it out and was
confrontational.
13. The
defendant spoke to the lawyer for a period and then
consented to taking an evidentiary test. Officer Hall
gave her the instructions on taking the test. These
included the need to give a hard, continuous blow of
breath into the tube until the officer told her to stop.
The defendant started the procedure. The officer was
holding the tube by her mouth and could feel the breath
coming around the tube rather than going into it. He
told the defendant she had to close her lips tightly
around the tube to create a seal. She made several more
such attempts with the same result.
14. The
defendant did not indicate verbally that she was having
any particular problem with the attempt. She did
indicate she was attempting to do as instructed, but
continued to fail to create a seal around the tube. She
was told after a few minutes that it would be considered
a refusal if she did not give a good breath for a test.
After another few moments and no success, Officer Hall
considered it a refusal and terminated the attempt.
15.
Officer Hall finished the processing forms, and he and
another officer transported the defendant back home. She
never made any request for medical treatment or
indicated any specific injuries.
16. The
defendant had been out to dinner that evening with her
friend Theresa DeNatale. They had dinner at a local
restaurant. The defendant had two glasses of wine with
dinner. She had this alcohol between 6 p.m. and 8 p.m.
After this dinner, Ms. DeNatale drove the defendant home
and left her there. At some point in the next half-hour,
the defendant decided to go to another local restaurant
to join a birthday party with friends. It was in this
trip that she had the accident that caused the police to
respond and eventually process her.
17. The
following day after the accident and processing, the
defendant was seen by Mary McVean at the Northshire
Medical center. Ms. McVean is a registered nurse and
certified family nurse practitioner. She has 20 years of
experience in medicine. The defendant presented to her
with face cuts, contusions on her knees, and some
swelling to her face. She found cuts around defendant’s
lips, especially noticeable about her upper left lip.
There was still some swelling about that area. The
defendant indicated pain about her chest, but this could
only be judged subjectively by her report and not by any
tests. The defendant did not have insurance and would
not agree to any extra tests or work up due to the
costs, except that an x-ray was taken that showed her
lungs were normal.
18. The
defendant’s heart rate was slightly raised, her
respiration rate was at the high end of normal, and her
pulse was normal. The defendant was upset, although not
hysterical or in shock.
19. On
June 4, 1999, the defendant went to Mary Squire. Ms.
Squire is a licensed dentist working in Arlington,
Vermont. Dr. Squire did a dental exam, including
radiographs of some of the teeth. She found 5 upper
teeth and 4 bottom teeth were sufficiently loosened as
to be able to move about their sockets. Dr. Squire also
found significant lacerations to the gum area on the
inside of the lower lop. There was tenderness to the
area of the mouth where the lower jaw passes into the
inner surface of the cheek.
20. These
injuries would be totally consistent with the defendant
having suffered a severe blow in the accident
approximately one week earlier. They would have been
painful at the time immediately after the accident and
could interfere with the ability to fasten one’s lips
about a tube for a length of time to create a tight seal
and blow into the tube. There is no evidence that her
airway was obstructed during the processing.
21.
Several weeks after the accident the defendant was taken
to the hospital on an emergency basis. She had emergency
surgery for bleeding in her abdomen, and it was found
that her pancreas had suffered an injury and had been
bleeding. It is reasonable to find this was an injury
from the accident that had not been diagnosed due to the
limited medical exam the defendant allowed.
22. Some
signs of shock can be similar to intoxication or being
under the influence of alcohol. This can depend upon the
individual person and personality. These signs can be
aggressiveness, confusion, agitation, and irrationality.
The odor of alcohol would not be a sign of shock.
Analysis and Conclusions of Law
Under the
procedure for a civil suspension, 23 V.S.A. § 1205, the
state must demonstrate that the officer had reasonable
ground to believe the person was operating under the
influence of intoxicating liquor, that the person was
informed of their rights under § 1202(d), and that the
person either refused the test or took one with a result
of an alcohol concentration of .08% or more. In this
case, the allegation is that a refusal took place.
The
defendant does not raise specific challenge to the first
two issues. The court finds based on the evidence that
there were reasonable grounds to process the defendant
and that she was informed of her rights under § 1202(d).
The accident, her appearance and behavior at the scene,
and her admission to having consumed alcohol provided
such grounds to the officer. There appears to be no
dispute over the recitation of her rights and the
documents submitted demonstrate compliance. The
contested issue that remains is whether a refusal took
place.
It is
clear that a refusal does not have to be verbally
communicated by a suspect. The Vermont Supreme Court has
often discussed this situation and found that conduct
can equal a refusal. As it stated in State v. Benware,
165 Vt. 631, 632 (1995):
The
applicable statute provides a defendant with a
reasonable amount of time to decide whether to
submit to the breath test, but no longer than thirty
minutes after the first attempt to contact an
attorney. 23 V.S.A. § 1202 (c). A refusal to submit
to testing may be inferred from the suspect’s
behavior. As we have explained: It is not necessary
as a mater of law that a refusal to submit to
testing by a DUI suspect can be evidenced only by an
express, affirmative statement of refusal. In the
absence of such a statement, a refusal may be
implied from the totality of the surrounding facts
and circumstances. Stockwell v. District Court, 143
Vt. 45, 50, 460 A.2d 466, 468 (1983). Thus, if a
reasonable person in the officer’s position could
believe that the driver understood that he had been
asked to take a test and nevertheless behaved in a
way that demonstrated he was unwilling to submit, a
refusal may be recorded by the officer. Id. These
principles have been reiterated in recent cases.
See, e.g., Gilman v. Commissioner of Motor Vehicles,
155 Vt. 251, 252, 583 A.2d 86, 86 (1990); Fontaine
v. District Court, 150 Vt. 28, 30, 547 A.2d 1362,
1363 (1988).
The
defendant clearly did not end up taking the test. Nor
did she verbally refuse. So the issue is whether her
conduct was a demonstration of an unwillingness to take
the test. This language clearly indicates, though, that
there must be a willing and deliberate refusal by
conduct. Obviously, someone who cannot take the test is
not refusing. The test is an “objective, factual
inquiry” as to whether the person was able to give a
sample. State v. Ratliff, 10 Vt.L.W. 222 (1999).
Based on
the evidence presented, the court finds that the
defendant could not give a breath sample and therefore
did not refuse under the statute. While her conduct may
have been inappropriate at numerous times during the
session, this does not overcome the evidence that she
had suffered injuries to her mouth and internal
injuries. These, especially the former, would have
caused her to have great difficulty in trying to
properly give a valid sample. While her failure to
verbally indicate some of this difficulty has to be
weighed, the court finds that she simply did not voice
such due to the stress of the situation and perhaps her
failure to fully understand her injuries at the time.
Her
verbal abusiveness also has to be weighed and the court
has done so, but does not find this requires a finding
of a refusal. Much of it had to do with wanting to avoid
medical treatment and to go home. Even that at the
station, while offensive, was not to such a degree as to
provide a basis for a refusal finding. While the officer
does not have to read minds in judging whether actions
are a refusal, and obviously also cannot know of
injuries that are not clearly evident, the court must
make the decision on the above objective standard. Doing
so, it finds that the fell facts, including the medical
situation proven by the evidence, do not meet the
state’s burden of demonstrating a refusal.
The
defendant also moved to suppress “evidence” of a refusal
in the criminal charge of operating under the influence.
The state initially argues that the court cannot
suppress such evidence. The court disagrees. Depending
upon the reason, it can suppress such evidence if it is
produced from a violation of defendant’s rights under 23
V.S.A. 1202. State v. Berini, 167 Vt. 565, 566 (1997).
This line of cases does not require all such evidence be
suppressed where the court finds against the state on
the facts in a civil suspension. See State v. Welch, 159
Vt. 272 (1992) (on the facts of the case, ruling for
defendant in civil suspension hearing that no refusal
occurred is not binding on criminal prosecution). The
court did not find any violation of defendant’s rights
under § 1202. Rather, it found factually the defendant
could not take the test. Unlike Welch, though, in this
matter there was a “full and fair opportunity” for both
parties to litigate all the issues. 159 Vt. at 272. This
was not a case of litigation by ambush at the civil
hearing where the state was depending solely on
affidavits. Both parties were aware of the issues,
presented testimony and fully dealt with the contested
issue of a refusal. The state had its arresting officer
present and he testified. Therefore, the court finds it
appropriate to suppress evidence of a refusal in the
criminal case.
This does
not mean the state may not introduce evidence of the
defendant’s behavior generally during the processing.
That is clearly relevant to the issue of whether she was
under the influence. One can be injured and unable to
give a sample, yet still be under the influence, and
evidence of swearing and abusive behavior is relevant
and separate from the refusal. Obviously, the defendant
can attempt to rebut such with medical testimony. What
is suppressed is any testimony that a “refusal” occurred
or argument based on that claim. No instruction will be
given concerning any inference from a refusal. Testimony
will be limited to that the defendant could not give an
adequate sample of breath in addition to the details of
her other conduct during processing. The fact that she
did not give a sample will not be labeled or designated
a refusal.
Order
Judgement
is entered for the defendant in the civil suspension
case. The Motion to Suppress in the criminal case is
GRANTED in part. While testimony concerning the
processing will be admissible, including that a test was
not obtained, no testimony will be allowed that a
“refusal” took place or argument that such took place.
The evidence of a refusal mentioned in 23 V.S.A. §
1202(d)(6) shall not admitted.
Kerry
McDonald, Deputy Bennington State’s Attorney,
Bennington. For State Bradley Myerson, Manchester, for
defendant
Page 68
4VERMONT TRIAL COURT REPORTER September 30, 1999
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