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State v. Sullivan

Supreme Court of Vermont

August 23, 2013

STATE of Vermont
v.
Corrina SULLIVAN.

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David J. Cahill, Windsor County Deputy State's Attorney, White River Junction, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Erick Tobias, Law Clerk (On the Brief), Montpelier, and Daniel S. Stevens of Marsicovetere Law Group, PC, White River Junction, for Defendant-Appellant.

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

ROBINSON, J.

¶ 1. Defendant Corrina Sullivan seeks reversal of her conviction for driving under the influence of alcohol (DUI) on the ground that the trial court erred in denying her motion to suppress various statements and evidence obtained during or as a result of an encounter between her and police officers in her apartment. We affirm.

¶ 2. The facts as found by the trial court and supported by sufficient evidence are as follows. On a cold January night, a Department of Corrections (DOC) officer was traveling in his vehicle down Christian Street in the Town of Hartford when he encountered defendant walking up the road about 100 feet from a motor vehicle stuck in a snow bank. The back half of the vehicle was encroaching on the traveled roadway, and both the rear reverse lights and dash lights were on. The DOC officer offered defendant a ride home.

¶ 3. During the brief trip, defendant identified herself and told the DOC officer that she had driven off the road because she was upset by a fight with her boyfriend. The DOC officer dropped her off at an apartment less than a mile away and

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reported the vehicle to the Hartford Police Department.

¶ 4. Officer Muldoon responded, arriving at the vehicle within six to ten minutes. He found documents in the vehicle listing defendant's name and address. The DOC officer, who had returned to the scene, told Officer Muldoon that he had driven defendant home.

¶ 5. Officer Muldoon drove to defendant's apartment and knocked on the door. Defendant's grandmother answered. After Officer Muldoon asked to speak with defendant, grandmother invited him in and called for defendant to come out of her room.

¶ 6. Defendant responded evasively to the first questions Officer Muldoon asked her about what had happened that night, avoiding eye contact and leaning against a wall. Her speech was neither clear nor articulate. From eight-to-ten feet away from defendant, Officer Muldoon detected a slight odor of alcohol. He explained to her that he was conducting an investigation and they could proceed in " one of two ways."

¶ 7. Officer Muldoon asked if defendant had anything to drink that night. Defendant looked down and did not respond, and Officer Muldoon said he would take her response as a " yes." Officer Muldoon then asked defendant to step out of the apartment to perform standard field sobriety tests.

¶ 8. At that point the grandmother began asking Officer Muldoon questions about DUI processing. He told the grandmother if defendant refused the evidentiary breath test she would lose her license for refusing. The grandmother then talked with defendant about the situation. In the course of that conversation, defendant mentioned an eleven-year-old conviction for DUI.

¶ 9. Defendant's friend then arrived at the apartment and joined the conversation between defendant and the grandmother. Defendant, the grandmother, and the friend discussed removing the car from the snow bank. Defendant was crying and upset because she had crashed the car. The three of them continued to talk amongst themselves, occasionally engaging Officer Muldoon. Meanwhile, Officer Muldoon waited for backup to arrive before taking further steps.

¶ 10. At one point, defendant told Officer Muldoon that she would not submit to a blood test. He replied that a field sobriety and breath test would clear up any questions about a DUI. Both the grandmother and friend tried to persuade defendant to take the field sobriety tests, but she continued to refuse. Officer Muldoon attempted to clarify whether defendant was refusing to take the tests but she said nothing in response. He asked again if she had anything to drink that night, and she replied, " not for a while."

¶ 11. At that point, Sergeant Vail from the Hartford Police Department arrived at the apartment. In response to his questioning, defendant told Sergeant Vail that she had had " probably three beers." Sergeant Vail again requested she submit to the preliminary breath test (PBT), but she refused. The officers then formally arrested defendant on suspicion of DUI and transported her to the Hartford Police Department for DUI processing. At the station, she was read her Miranda rights and consented to an evidentiary test. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The period from Officer Muldoon's arrival to defendant's formal arrest lasted about seventeen minutes.

¶ 12. The evidentiary breath test taken at the station yielded a blood-alcohol concentration of 0.246, well above the legal ...


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