Motion for Reargument Denied August 31, 2015.
On Appeal from Superior Court, Orange Unit, Criminal Division. Robert P. Gerety, Jr., J.
H. Dickson Corbett, Orange County Deputy State's Attorney, Chelsea, for Plaintiff-Appellee.
Kyle L. Hatt of Sleigh Law, P.C., St. Johnsbury, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] Defendant appeals the decision of the Orange Superior Court, Criminal Division denying his motion to suppress his refusal to submit to an evidentiary breath test on the ground that he was denied his right to counsel under 23 V.S.A. § 1202. We affirm.
[¶2] The following facts are undisputed. On November 12, 2013, shortly before midnight, defendant was pulled over for speeding. The police sergeant observed that defendant's eyes were bloodshot and watery, and he detected a faint odor of alcohol coming from inside defendant's vehicle. Defendant admitted to consuming alcohol prior to operating the vehicle, and preliminary breath and field sobriety tests indicated that defendant's blood-alcohol content was above the legal limit. Defendant was detained and taken to the police barracks for processing. During processing, the sergeant read defendant his rights under Vermont's implied-consent law, 23 V.S.A. § 1202, which includes defendant's right to consult with a public defender before deciding whether to submit to an evidentiary breath test, id. § 1202(c), (g). Defendant requested to speak to an attorney. The sergeant attempted to reach the on-call public defender but was unable to reach him. He left a voicemail asking the attorney to contact the police barracks, but the attorney never called back. The sergeant then called the back-up public defender and got him on the line. He handed the phone over to defendant, left the room, and shut off the audio-recording equipment, leaving defendant to speak with the attorney in private.
[¶3] The following is defendant's account of his conversation with the public defender.
The two exchanged pleasantries, but before any legal consultation, the attorney asked defendant if he would " hold on," and the conversation stopped. Defendant waited approximately ten minutes for the attorney to return and then called to the sergeant for help. Although audio-recording equipment had been shut off in the processing room, a video feed from the room appears to show defendant not talking for the duration of the ten minutes.
[¶4] After defendant explained to the sergeant that he had been on hold for ten minutes, the sergeant again attempted to call both public defenders. There was no answer at any of the numbers he called for the on-call attorney, and the back-up attorney's line was busy. The sergeant told defendant that he had ten more minutes and that if neither public defender returned his call he would have to decide whether or not to take the evidentiary breath test regardless of obtaining legal consultation. After the thirty minutes elapsed, the sergeant asked defendant if he would submit to the breath test. Defendant refused to answer, and the sergeant understood this as a refusal to take the test.
[¶5] Defendant was charged with driving under the influence (DUI) pursuant to 23 V.S.A. § 1201(a)(2). He moved to suppress the evidence of his refusal to take the evidentiary test " on the ground that he suffered a complete denial of his right to counsel under 23 V.S.A. § § 1202(c), (g)." The trial court, in a brief entry order, denied defendant's motion, stating, " Defendant began communication with lawyer and at that point lawyer was no longer an agent of the state and action of lawyer placing client on hold is not state action." The court further explained, " The State's obligations under 23 V.S.A. § 1202(c) were satisfied when Defendant made contact with public defender and began speaking with public defender." Defendant moved for the trial court to reconsider, arguing that the court's " reasoning in denying Defendant's motions wars with ...