This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Windham Unit, Criminal Division. David Suntag, J.
David W. Gartenstein and Steven M. Brown, Windham County Deputy State's Attorneys, Brattleboro, for Plaintiff-Appellant.
Matthew F. Valerio, Defender General, Dawn Matthews and Rebecca Turner, Appellate Defenders, Montpelier, for Defendants-Appellees.
Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
[¶ 1] In these consolidated appeals, we consider whether the same prior conviction for driving under the influence (DUI) may serve both to criminalize a refusal to submit to an evidentiary blood-alcohol test under 23 V.S.A. § 1201(b) and to enhance the penalty for that offense under 23 V.S.A. § 1210. The trial court held that the statute prohibited such dual use, and the State appeals. We reverse, and conclude that the plain language of the statute allows the same prior DUI conviction to be used both as an element of criminal refusal and to enhance the penalty for the refusal.
[¶ 2] The material facts in the two cases before us may be briefly recounted. In State v. Wainwright, Docket No. 2012-213, defendant was charged with DUI, second offense, for refusing to submit to an evidentiary blood or breath test in violation of 23 V.S.A. § 1201(b), which provides:
A person who has previously been convicted of a violation of this section shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and refuse a law enforcement officer's reasonable request under the circumstances for an evidentiary test where the officer had reasonable grounds to believe the person was in violation of subsection (a) of this section.
[¶ 3] The information alleged that Wainwright had been previously convicted of violating 23 V.S.A. § 1201(a) on July 8, 2008, and that this conviction triggered the application of § 1201(b). It also alleged that defendant was subject to a second-offense penalty, which provides that " [a] person convicted of violating section 1201 of this title who has been convicted of another violation of that section" shall be subject to a term of imprisonment of not more than two years, a fine of up to $1500, or both, and at least 200 hours of community service. 23 V.S.A. § 1210(c).
[¶ 4] In an entry order dated May 12, 2012, the trial court found no probable cause for the second-offense allegation. The court reasoned that the information alleged only one prior conviction of 23 V.S.A. § 1201, that the prior conviction was " an essential element of [the] present charge" of refusal pursuant to § 1201(b), and that the prior conviction could not also be considered " another violation of that section" under § 1210(c) to enhance the penalty for a second offense. The State moved for permission to appeal the order, which was granted.
[¶ 5] In State v. Wilder, Docket No. 2013-010, defendant was charged with DUI, fourth offense, in violation of § 1201(b), for refusing to submit to an evidentiary test. The information alleged that defendant had been previously convicted of violating 23 V.S.A. § 1201(a) in October 1989, September 1992, and June 2011. In December 2012, the trial court issued an entry order finding no probable cause for the charge of DUI, fourth offense, reasoning -- as in Wainwright -- that " [g]iven the necessary use of one of ...