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State v. Tuma

Supreme Court of Vermont

August 9, 2013

STATE of Vermont
v.
Marek L. TUMA.

Page 884

Steven M. Brown, Windham County Deputy State's Attorney, Brattleboro, and Greg Nagurney, Department of State's Attorneys, Montpelier, for Plaintiff-Appellant.

James A. Valente of Costello Valente & Gentry, P.C., Brattleboro, for Defendant-Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

DOOLEY, J.

¶ 1. The State of Vermont appeals the suppression of evidence obtained in the stop of defendant Marek Tuma's vehicle that led to his arrest and charge of driving under the influence (DUI), arguing that the fact that one side of defendant's front license plate was one to two inches below the other gave rise to reasonable suspicion that he was committing a traffic violation. We affirm.

¶ 2. The facts leading to the stop of defendant's vehicle are not in dispute. On November 13, 2011, a police officer observed defendant driving on Putney Road in Brattleboro. The officer observed, in his own words, that " the front plate on the passenger side of that plate was approximately one to two inches lower than the driver's side of the plate." He initiated a motor vehicle stop based on this observation because he believed that the position of the license plate constituted a violation of 23 V.S.A. § 511, which mandates that license plates on cars " shall be kept horizontal." He confirmed during the motion hearing that this was the sole reason that he initiated the stop.

¶ 3. Based on his interaction with defendant, the officer suspected that defendant had operated the car under the influence of alcohol, and requested that defendant perform a number of sobriety tests, some of which defendant failed. Defendant was arrested and charged with DUI-2. The State moved to amend the information to charge a DUI-3 and added a DUI-3-Refusal charge. The trial court found probable cause on the first count but not on the DUI-3-Refusal.

¶ 4. Defendant filed a motion to suppress, arguing that having one edge of his license plate slightly below the other did not violate Vermont law, and there was, therefore, no reasonable suspicion that would have permitted the officer to stop his vehicle. The trial court orally granted the motion to suppress, ruling that the " one to two inches off level" was " horizontal," for the purposes of the statute. It also noted, however, that " the problem here is not that the officer wasn't acting in good faith" — it just found that the officer was incorrect about the law. The State moved for permission to appeal, which the court granted.

¶ 5. As there are no disputed facts related to the motion to suppress, we review only the trial court's legal analysis. See State v. Edmonds, 2012 VT 81, ¶ 5, 192 Vt. 400, 58 A.3d 961. Our review is de novo. Id.

¶ 6. The relevant statute reads:

A motor vehicle operated on any highway shall have displayed in a conspicuous place either one or two number

Page 885

plates as the commissioner of motor vehicles may require.... If two are furnished, one shall be securely attached to the rear and one to the front of the vehicle. The number plates shall be kept entirely unobscured, the numerals and the letters thereon shall be plainly legible at all times. They shall be kept horizontal, shall be so fastened as not to swing .... A person ...

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