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State v. Perley

Supreme Court of Vermont

August 14, 2015

State of Vermont
Timothy P. Perley

Page 94

On Appeal from Superior Court, Franklin Unit, Criminal Division. James R. Crucitti, J.

William H. Sorrell, Attorney General, and Sarah Katz and John Treadwell, Assistant Attorneys General, Montpelier, and James A. Hughes, Franklin County State's Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Sidney Wilson, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


Page 95

Eaton, J.

[¶1] Defendant appeals from his conviction for refusing to submit to an evidentiary test, having previously been convicted of driving under the influence. He argues that the court should have granted his motion for judgment of acquittal because the State failed to prove the " reasonableness" of the State's request for an evidentiary breath test beyond a reasonable doubt. We affirm.

[¶2] Defendant was charged with numerous crimes in March 2013, including: leaving the scene of an accident; violating conditions of release; operating with a suspended license; driving under the influence (DUI), third offense; and refusing to submit to an evidentiary test. Defendant pled nolo contendere to the first three charges.

[¶3] In July 2013, defendant moved to dismiss the DUI #3 and the test-refusal charges under Vermont Rule of Criminal Procedure 12(d) for lack of a prima facie case. Defendant argued that the State lacked substantial admissible evidence that he had consumed alcohol at the time he was observed operating a vehicle. Given this, he argued that the DUI #3 charge must be dismissed. For the same reason, defendant asserted that the test-refusal charge must be dismissed because the officer lacked " reasonable grounds" to believe that he was operating while intoxicated.

[¶4] In an August 2013 entry order, the court granted defendant's motion in part and denied it in part. It found as follows. The State alleged that at 12:05 p.m. on the date in question, defendant was observed operating a motor vehicle on a public highway and he was involved in a motor vehicle accident in Enosburg. Defendant fled the scene, and police finally located him at 2:00 p.m. outside the courthouse in St. Albans, exiting his father's car. Defendant showed signs of intoxication and he was arrested.

[¶5] The trial court found that, despite the inferences that might be drawn from defendant's refusal to submit a breath sample, the State did not argue that it had substantial admissible evidence to support the DUI #3 charge. For this reason, the court dismissed the DUI #3 charge. As to the test-refusal charge, the court found sufficient evidence to show that defendant refused a law enforcement officer's reasonable request for an evidentiary test where the officer had reasonable grounds to believe that the person was driving under the influence. The court found that the officer had information that defendant was operating a motor vehicle in a negligent manner, that he struck another vehicle, fled

Page 96

from the scene and nearly struck a town plow truck and another vehicle in the process. A witness estimated that defendant was driving approximately 70 mph on a narrow two-lane highway. The officer looked for defendant at his residence, but no one was there, although the officer noticed house keys hanging from the outside lock. Approximately two hours later, defendant arrived at the courthouse as a passenger in his father's car and was approached by police. Defendant showed signs of intoxication. Under these circumstances, the court concluded that the officer had much more than " reasonable grounds" to request that defendant submit a breath sample for testing. It thus denied the motion to dismiss the test-refusal charge.

[¶6] A jury trial followed. Various witnesses testified to the events on the day in question. The arresting officer also testified. He explained that on the day in question he was on duty and received word of a motor vehicle crash. He learned that defendant had fled the scene. A description of defendant's car was broadcast over the police radio. The officer patrolled the area looking for defendant and ultimately found him at approximately 2:00 p.m. at the courthouse. At that time, the officer smelled a strong odor of intoxicants emanating from defendant and observed defendant's bloodshot watery eyes. The officer did not see any alcohol containers in defendant's father's car. Defendant was arrested for leaving the scene of an accident, suspicion of DUI, and other related charges. The officer explained that he suspected defendant of DUI because a witness had put defendant at the scene of an accident at approximately noon, and when he was finally located two hours later, defendant showed obvious signs of impairment.

[¶7] The officer then described processing defendant for suspicion of DUI at the police barracks. He read the DUI processing form to defendant. He informed defendant of the potential consequences of refusing a breath test. He asked defendant if he would like to speak with a lawyer before deciding to submit to a test. Defendant responded by asking if his attorney Mike Ledden was there. The officer said that Mr. Ledden was not there and asked defendant if he wanted to be put in contact with a public defender. Defendant said no. Defendant then refused to take an evidentiary breath test and the officer printed out a DUI refusal ticket.

[¶8] When asked at trial how he knew that Mr. Ledden was not at the police barracks, the officer explained that it was unusual to have an attorney at the police barracks and it would have been known if one was present. He further explained that there were dispatchers at the front windows of the police barracks and it was the ...

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