On Appeal from Superior Court, Essex Unit, Criminal Division April Term, 2012
The opinion of the court was delivered by: Burgess, J.
State v. Hawkins (2011-203 & 2011-384)
M. Kathleen Manley, J. (2011-203) Robert P. Gerety, Jr., J. (2011-384)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant Jerald Hawkins appeals from his conditional guilty plea to criminal refusal of an evidentiary breath test in violation of 23 V.S.A. § 1201(b)(1) and the civil suspension of his driver's license, claiming that the trial court erred in denying his motion to suppress evidence. Defendant argues that he was arrested without probable cause in violation of the Fourth Amendment of the United States Constitution and Article 11 of the Vermont Constitution. Alternatively, he argues that, even if supported by probable cause, the arrest violated the Fourth Amendment and Article 11 due to excessive force. Defendant urges, further, that statements he made to police were obtained in violation of his rights under the Fifth Amendment of the U.S. Constitution and Miranda v. Arizona, 384 U.S. 436 (1966), as well as Article 10 of the Vermont Constitution. Defendant also contends he was entitled to judgment in the civil license suspension proceeding because the final hearing did not take place within the mandatory timeframe. We reverse in part, and remand.
¶ 2. The facts, drawn from the trial court's findings, are as follows. On October 10, 2009, at about six p.m., an Essex County deputy sheriff clocked defendant driving sixty-five miles per hour in a fifty-miles-per-hour zone along Route 102 in Maidstone. The deputy turned on his blue lights, but not his siren, and went after defendant. Before the deputy could catch up to him, defendant turned left onto Lovell Road, a private driveway serving a single camp. The deputy followed onto Lovell Road and saw that defendant's car was stopped. Defendant then resumed driving and, at a speed of about twenty-five miles per hour, crossed a washed-out part of the driveway that was about ten to twelve feet across and one to three feet deep, which caused defendant's car to bottom out. Cautious of the road's condition, the deputy did not follow, and, at some point, got out of his cruiser. Defendant drove another forty yards, eventually stopping some distance before a gate that blocked further travel.
¶ 3. Defendant got out of his car and began walking back toward the deputy sheriff, who was about sixty to seventy-five yards away. Defendant walked with a "shuffling" gate, but did not say or do anything threatening, and kept his empty hands visible. At this point, for what he characterized as "reasons of officer safety," the deputy drew his gun and ordered defendant to get on his knees, face away from him, and place his hands on his head. Defendant was handcuffed, put in the cruiser, and taken to the St. Johnsbury Police Department. While taking defendant to his cruiser, the deputy smelled alcohol on defendant's person and, during the trip to the police station, he observed that defendant had bloodshot eyes and spoke with slurred speech. At no point, however, did the deputy request that defendant perform field sobriety exercises, nor, prior to arriving at the station, did the deputy ask defendant any questions about alcohol consumption.
¶ 4. At the station, the deputy sheriff processed defendant for driving under the influence of alcohol. He started by asking defendant the preliminary questions found at page one of the standard DUI processing form, including whether defendant had consumed any alcoholic beverages, how long it had been since his last drink, and how much he had drunk in the last thirty minutes. Turning to page two of the form, the deputy advised defendant of his Miranda rights before asking any further questions. Defendant signed a waiver of these rights and answered the questions at the bottom of page two concerning further details about drinking alcohol relative to time of operation. The deputy then advised defendant of his rights and obligations under Vermont's implied consent law, including his right to consult with an attorney before deciding whether to give an evidentiary breath sample. Defendant declined to speak with an attorney and refused to submit to a breath test.
¶ 5. Defendant was charged with criminal refusal of an evidentiary breath test in violation of 23 V.S.A. § 1201(b)(1). Defendant moved to suppress all evidence obtained after the deputy drew his weapon, ordered defendant to his knees, and handcuffed him. He argued that the deputy's actions constituted an unlawful arrest and that therefore all evidence gained as a result of that arrest should be suppressed. Defendant also argued that his answers to the questions on the DUI processing form should be suppressed because they were acquired in violation of his Miranda rights. Defendant maintained that he was in custody for Miranda purposes upon being handcuffed at gunpoint and thus was entitled to Miranda warnings before being questioned. He further asserted that the unlawful questioning before the warnings rendered the subsequent Miranda warnings ineffective, so that his statements following the warnings should also be suppressed. The State countered that there was probable cause to arrest defendant for impeding a public officer in violation of 13 V.S.A. § 3001 and for negligent operation of a motor vehicle in violation of 23 V.S.A. § 1091(a) due to his crossing the washed-out section of the driveway so as to cause his car to bottom out. The State contested suppression of its physical evidence, and challenged suppression of defendant's statements made after Miranda warnings were delivered.
¶ 6. Filed contemporaneously with the criminal case was the State's civil action to suspend defendant's license to drive. The parties appeared for a preliminary hearing on October 29, defendant's arraignment date, and a final hearing was set for November 19, 2009, forty days after the alleged offense and twenty-one days after the preliminary hearing. Defendant moved for a continuance in order to depose the deputy, stating that defendant "waiv[ed] any time requirements affected by this continuance." The continuance was granted and the final hearing rescheduled for January 25, 2010.
¶ 7. The trial court initially granted the motion to suppress all evidence against defendant on March 16, 2010, and dismissed the civil suspension action. Agreeing that defendant was arrested upon being handcuffed at gunpoint, the court determined that the arrest was unsupported by probable cause since there was no evidence of impeding the officer, and no evidence that the supposed careless driving occurred on a "public highway" as required for the crime of negligent operation, rather than on a private driveway. 23 V.S.A. § 1091(a)(1). Looking to defendant's post-arrest statements, the court concluded that the Miranda warnings could not purge the taint of the underlying illegal arrest.
¶ 8. Moving for reconsideration, the State argued that the court erred in failing to deem the driveway a public highway as broadly defined for the offense of negligent operation. See 23 V.S.A. § 4(13). After a continuance requested by defendant, the reconsideration hearing set for June was reset for July, and decided on August 10, 2010. Upon reconsideration, the court reversed its prior decision, explaining first that the pertinent statutory definition of public highway included the camp driveway here and, second, that the question of negligence would be left for trial since the court could not hold that defendant's drive across the wash-out was not negligent as a matter of law. Finally, it concluded that "[a]lthough there was overlap between the pre- and post-Miranda questioning and there was no break, reviewing the totality of the circumstances, there is no ...