State v. Renee P. Giguere , 169 A.3d 778 ( 2017 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2017 VT 40
No. 2016-297
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Essex Unit,
Criminal Division
Renee P. Giguere February Term, 2017
Michael R. Kainen, J.
Gregory Nagurney, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellant.
Corby A. Gary of The Law Office of Corby A. Gary, St. Johnsbury, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. REIBER, C.J. This driver’s license suspension case stems from the State’s
accusation that defendant had been driving under the influence (DUI) before she crashed her car
and was transported to the nearest hospital, which was located in New Hampshire. The State
appeals the trial court’s judgment in favor of defendant, which was based on the court’s
determination that defendant’s refusal to provide a blood sample to the investigating Vermont state
trooper must be suppressed because breath testing equipment was reasonably available. On appeal,
the State argues that there should have been no suppression because breath testing equipment was
not reasonably available. We agree and therefore reverse and remand.
¶ 2. Defendant is a New Hampshire resident. Shortly after midnight on October 18,
2015, she crashed her car while driving on Route 114 in Canaan, Vermont, near the border with
New Hampshire.1 A United States Border Patrol agent was the first on the scene. The agent
observed not only the smell of alcohol but also that defendant was slurring her speech. Defendant
told the agent that she did not know what happened leading up to the crash, but she also admitted
to having consumed alcohol that evening. Concerned that defendant had suffered a head or neck
injury, the agent requested an ambulance, and defendant was transported to Upper Connecticut
Valley Hospital (UCVH) in Colebrook, New Hampshire.
¶ 3. Shortly thereafter, a Vermont state trooper arrived at the crash scene, and the agent
told the trooper about his observations of defendant. The trooper then drove to UCVH,
encountering defendant at roughly 1:48 a.m. in the emergency room.2 He noticed that she had
“bloodshot, watery eyes” and “[t]here was still an odor of intoxicants coming from her person.”
The trooper administered some field sobriety tests, and defendant told him that “she had
approximately two beers and a glass of wine.” The trooper concluded that he “had reasonable
grounds to believe that she was under the influence while operating a vehicle.” But the trooper
did not request a breath sample—he testified that (1) he was not permitted to use New Hampshire
testing equipment; (2) he would have had to bring defendant back to Vermont to use equipment at
either the police station in Canaan, the barracks in St. Johnsbury, or the barracks in Derby; and
(3) he was not permitted to arrest defendant in New Hampshire.
1
In an affidavit, the Vermont state trooper involved in this case indicated that he estimated
defendant’s time of operation to be 12:20 a.m.
2
Defendant was discharged from UCVH at 2:04 a.m., and defendant’s mother arrived to
pick her up at 2:27 a.m., as the trooper was finishing up his interaction with defendant.
2
¶ 4. Moreover, the trooper also testified that he did not have easy access to the breath
testing equipment at the police station in Canaan,3 which had been locked for the night: “I’m not
sure if it was—on that date if it was operating or functional, if I was going to have access to it. I
didn’t have a key to it. I would have to get somebody to open it for me.” Furthermore, as to the
person who did have the key—Canaan’s police chief—the trooper testified, “We had already
called him that night and he was out of town and unavailable.” And other than the equipment in
Canaan, the closest Datamaster DMT was at the barracks in St. Johnsbury or the barracks in Derby,
both “between an hour, an hour and a half” away. With these considerations in mind, the trooper
did not even ask defendant to accompany him back to Vermont for a breath test. Instead, he
requested a blood sample from defendant, and defendant refused without explanation.
¶ 5. The trooper cited defendant for DUI-1 in violation of 23 V.S.A. § 1201(a) (“A
person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a
highway: (1) when the person’s alcohol concentration is 0.08 or more . . . .”). Eight days later, the
trooper served defendant with a notice of intention to suspend under 23 V.S.A. § 1205. The court
held a preliminary civil suspension hearing on November 17, 2015, and a final civil suspension
hearing on January 19, 2016. On July 26, 2016, the court issued judgment in favor of defendant
because it determined that defendant’s refusal to provide a blood sample to the trooper must be
suppressed.
¶ 6. The court concluded “on this narrow set of facts” that “breath testing equipment
was reasonably available” and that the trooper “assumed from the start[] that he was getting blood.”
It explained that the trooper could have taken defendant from UCVH back to Vermont but that the
trooper did not explore that option. The court specifically found that there was “no indication that
[defendant] posed any threat” and that the trooper “could have asked her if she would voluntarily
3
This breath testing equipment, like the equipment located at the St. Johnsbury and Derby
barracks, is known as a “Datamaster DMT.”
3
take a ride with him.” The trooper then could have transported defendant back to the police station
in Canaan, but the trooper erroneously “did not make inquiry as to whether he could use [the
equipment] because he did not plan to bring her back.” Alternatively, the court said, the trooper
could have transported defendant to the St. Johnsbury or Derby barracks, both of which definitely
would have had breath testing equipment available.
¶ 7. On appeal, the State argues that breath testing equipment was not reasonably
available because (1) it was not possible to obtain a breath sample within two hours of the crash
and (2) the trooper had no legal means of transporting defendant back to Vermont for a breath test.
In reviewing the judgment, we review the court’s factual findings for clear error and the court’s
legal conclusions de novo. State v. Dubuque, 2013 VT 3, ¶ 8, 193 Vt. 180, 67 A.3d 238 (“In
reviewing a motion to suppress, we will defer to the trial court’s findings of fact unless they are
clearly erroneous. We review the court’s legal conclusions de novo.”); see also State v. Spooner,
2012 VT 90, ¶ 11, 192 Vt. 465, 60 A.3d 640 (noting in appeal of dismissal of driver’s license
suspension complaint that “the trier-of-fact is in the best position to determine the weight and
sufficiency of the evidence presented” (citation omitted)). We agree with the State and hold that
breath testing equipment was not reasonably available, in large part due to the difficulties pointed
out by the State.
¶ 8. Vermont law regarding DUI explicitly favors breath testing over blood testing. See
Dubuque, 2013 VT 3, ¶ 3 (“Vermont law favors breath tests over blood tests . . . .”); State v.
Yudichak, 147 Vt. 418, 419, 519 A.2d 1150, 1151 (1986) (noting that “the legislature has
expressed its preference for breath testing over blood testing”). It provides that any driver on its
highways impliedly consents to a breath test to determine his or her blood alcohol content:
Every person who operates, attempts to operate, or is in actual
physical control of any vehicle on a highway in this State is deemed
to have given consent to an evidentiary test of that person’s breath
for the purpose of determining the person’s alcohol
concentration . . . .
4
23 V.S.A. § 1202(a)(1). And if breath testing equipment is not reasonably available, then
Vermont law provides that the driver impliedly consents to a blood test:
If breath testing equipment is not reasonably available . . . the
person is deemed to have given consent to the taking of an
evidentiary sample of blood.
23 V.S.A. § 1202(a)(2). By these statutes, then, a trooper may require a blood test from a driver
under the circumstances presented here only if breath testing equipment is not reasonably
available. See Dubuque, 2013 VT 3, ¶ 10 (“[A] person is deemed to give consent to a blood test
when the breath-testing equipment is not reasonably available.”).
¶ 9. As a preliminary matter, it is important to note that the trooper would not have been
permitted to administer a breath test in New Hampshire because Vermont law prevents him from
operating the breath testing equipment used in New Hampshire. Unless prohibited by the laws of
the neighboring state, Vermont law allows law enforcement officers to request a breath or a blood
sample in a neighboring state. It also specifies that evidence of the breath or blood sample must
not be suppressed merely because it was taken outside of Vermont:
A Vermont law enforcement officer shall have a right to request a
breath or blood sample in an adjoining state or country under this
section unless prohibited by the law of the other state or country. If
the law in an adjoining state or country does not prohibit an officer
acting under this section from taking a breath or blood sample in its
jurisdiction, evidence of such sample shall not be excluded in the
courts of this State solely on the basis that the test was taken outside
the State.
23 V.S.A. § 1203(h). However, Vermont law also details that a breath test may be administered
only by someone who is certified to operate the specific equipment being used. See id. § 1203(a)
(“A breath test shall be administered only by a person who has been certified by the Vermont
Criminal Justice Training Council to operate the breath testing equipment being employed.”).
Here, the trooper testified that he did not satisfy this requirement because he was not authorized to
operate the breath testing equipment in New Hampshire: “[I d]id not have access to a Datamaster—
5
I was now in New Hampshire and I’m not authorized to operate one in the State of New
Hampshire.” Therefore, to administer a breath test legally, the trooper would have had to transport
defendant back to Vermont.
¶ 10. As the court pointed out, the trooper had a few potential options for administering
a breath test to defendant in Vermont: taking defendant to the police station in Canaan or taking
defendant to the St. Johnsbury or Derby barracks. Because the trooper did not ask, we do not know
if defendant would have agreed to return to Vermont voluntarily. New Hampshire law provides
that a police officer from another state who enters New Hampshire “in fresh pursuit . . . of a person
in order to arrest him or her on the ground that he or she is believed . . . to have driven a motor
vehicle . . . while under the influence of intoxicating liquor or a controlled drug in such other state,
shall have the same authority to arrest and hold such person in custody . . . .” N.H. Rev. Stat. Ann.
§ 614:1. But New Hampshire law also specifies that “fresh pursuit . . . shall not necessarily imply
instant pursuit, but pursuit without unreasonable delay.” Id. § 614:5. In this case—although it is
not entirely clear—the time between the trooper’s dispatch and his arrival at UCVH could be
considered “unreasonable delay.” Id. Moreover, even if the trooper were permitted under New
Hampshire’s “fresh pursuit” law to arrest defendant, the trooper would have had to wait for “the
issuance of an extradition warrant by the governor of [New Hampshire]” before transporting
defendant back to Vermont. Id. § 614:2.
¶ 11. And this potential delay is important in light of the evanescent nature of blood
alcohol testing. When considering whether breath testing equipment is reasonably available, we
must keep in mind the fact that blood alcohol content decreases with time, and blood alcohol
testing is therefore time-sensitive. See Dubuque, 2013 VT 3, ¶ 9 (“In evaluating whether breath-
testing equipment was reasonably available, we must bear in mind the time-sensitive nature of
blood-alcohol evidence. As time goes by, the blood alcohol content (BAC) declines. We have
termed this the ‘evanescent nature’ of blood alcohol evidence.”). For this reason, Vermont law
6
provides for a two-hour window establishing that if a driver’s blood alcohol concentration tests at
.10 percent or more within two hours of operation, there is a permissive inference that the driver
was under the influence while operating the vehicle. 23 V.S.A. § 1204(a)(2) (“If the person’s
alcohol concentration at any time within two hours of the alleged offense was 0.10 or more, it shall
be a permissive inference that the person was under the influence of intoxicating liquor . . . .”); see
also Dubuque, 2013 VT 3, ¶ 9 (“The Legislature has recognized the necessity that an evidentiary
test be timely by allowing a permissive inference that a test result of .10 or greater ‘within two
hours’ of operation shows operation under the influence of alcohol.”).
¶ 12. Whether the trooper would have been able to administer a breath test within the
two-hour window is not dispositive of whether breath testing was reasonably available; it is merely
one important factor in the analysis. Even if the trooper were able to transport and test defendant
at either the Canaan police station or the St. Johnsbury or Derby barracks within two hours of the
crash, neither option was “reasonably available.” The Canaan police station was locked, and the
person who had the key was out of state, and the St. Johnsbury and Derby barracks were both an
hour to an hour-and-a-half away. At best, the trooper would have had to spend time tracking down
a key to the Canaan police station, or he would have had to transport defendant all the way back
to other available breath testing equipment in Vermont, all assuming he could gain defendant’s
consent to return to Vermont without New Hampshire process. And the strength of the evidence
of defendant’s blood alcohol concentration would continue to diminish while the trooper took these
steps—the probative value of the breath test would be decreasing and the permissive inference of
the two-hour window could even be lost.
¶ 13. Given these difficult circumstances, it cannot be said that breath testing equipment
was reasonably available. See Dubuque, 2013 VT 3, ¶ 10 (“The statute does not require law
enforcement to make every possible effort to take a breath sample before requesting a blood
sample; rather, it states that a person is deemed to give consent to a blood test when the breath-
7
testing equipment is not reasonably available.”). We must conclude on this set of facts that
defendant impliedly consented to a blood test, and her refusal to provide a blood sample should
not have been suppressed. See 23 V.S.A. § 1202(a)(2).
Reversed and remanded.
FOR THE COURT:
Chief Justice
8