Appeal from Superior Court, Addison Unit, Criminal Division
Robert A. Mello, J.
R. Fenster, Addison County State's Attorney, and Ashley
A. Hill, Deputy State's Attorney, Middlebury, for
Matthew F. Valerio, Defender General, Marshall Pahl,
Appellate Defender, and Kerrie Johnson, Law Clerk (On the
Brief), Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Defendant appeals from a judgment of conviction of driving
under the influence, third offense, in violation of 23 V.S.A.
§§ 1201(a) and 1210(d). Among other claims,
defendant contends the trial court committed prejudicial
error by proceeding with a motion-to-suppress hearing in
defendant's absence. We agree, and therefore reverse the
order denying the motion to suppress.
2. This case arose out of a motor vehicle stop that occurred
on the evening of November 19, 2013, in the Town of Bristol,
and resulted in a charge against defendant of driving under
the influence. Prior to trial, defendant moved to suppress
all evidence resulting from the stop and detention. The court
held a hearing on the motion in March 2015. At the start of
the hearing, the court inquired about defendant's
absence, and defense counsel informed the court it was
"my fault, or at least my office's fault" for
failing to inform defendant that he should be there "in
person for this." The court inquired whether there was
"any issue of the defendant not being here today?"
The prosecutor responded, "[a]s far as going forward
with the hearing, no, your Honor." The court then
reviewed Vermont Rule of Criminal Procedure 43 to "just
[to] be sure, " noted that it provided that a
defendant's presence is not required "at a
conference or argument on a question of law, " and
concluded, "So I don't see any issue." Defense
counsel then stated that defendant, "for what it's
worth . . . is under waiver of appearance." The court
acknowledged the waiver, and proceeded with the hearing.
Defense counsel did not object to the hearing proceeding.
3. Officer Duplissis, a sergeant with the Vermont State
Police, was the only witness to testify at the hearing. The
officer explained that, on the night in question, he had just
finished executing a search warrant at a residence on Route
116 in Bristol when he saw a truck drive by going
"clearly in excess of the speed limit" and well
over the center line into the other lane. The officer
testified that he and another officer entered his cruiser and
effected a motor vehicle stop. They then spoke with the
driver-later identified as defendant-who acknowledged that he
was speeding but explained that he had been followed by
another vehicle through town.
4. Defense counsel cross-examined the officer briefly,
questioned him about his location at the time he observed
defendant's vehicle, and confirmed that his observation
of the vehicle's speed was "purely visual" and
not based on the use of a radar gun. Defense counsel then
argued that a visual estimate of the vehicle's speed was
inadequate to justify the stop, and posited that it was
reasonable for a driver, observing several police cruisers on
the side of the road, to cross the center line to give them
"a little bit of space." The trial court denied the
motion, finding on the record that the officer's training
allowed him to make a reasonably accurate estimate of a
vehicle's speed, and that there was no basis to support
an inference that the vehicle crossed the center line to
avoid the parked police cruisers.
5. The case proceeded to trial, where Officer Duplissis's
account of the stop was largely consistent with his earlier
testimony. He recalled further that, following the stop, the
officers observed a "furtive movement" by defendant
and, based on that, ordered him to exit the vehicle. As
defendant opened the car door, Officer Duplissis "heard
the clink of something metallic landing on the ground"
and, concerned that it was a firearm, ordered defendant to
show his hands. When he arrived at the vehicle, the officer
observed that the object was a black box cutter.
6. Officer Duplissis then spoke with defendant, who told of
being tailgated through Bristol and speeding to get away from
the following vehicle. While they were conversing, the
officer observed that defendant's eyes were bloodshot and
watery. In response to further questioning, defendant
initially denied that he had consumed any alcoholic beverages
that evening, but later acknowledged that he had a glass of
wine. Based on these observations, the officer administered a
number of field sobriety exercises, and subsequently arrested
defendant for DUI and transported him to the police barracks
for processing and blood alcohol testing. The test result was
0.099, which a State chemist calculated to be 0.121 at the
time of operation.
7. Officer Neary, a trooper with the Vermont State Police,
assisted with the stop. His account of the stop, detention,
and arrest was largely consistent with that of Officer
Duplissis, although he also recalled detecting an odor of
alcohol from defendant's breath.
8. Defendant testified on his own behalf. He explained that
he was a resident of Ohio but had been visiting his son and
brother in Bristol on the day in question. He recalled that
he had spent the day hunting but had eaten nothing and had
one glass of wine with his son that evening. He stated that,
as he was returning through town, he sped up to avoid another
vehicle that was tailgating him. He denied, however, that he
was speeding or that he had crossed the center line. At the
time of the stop, defendant recalled that his vehicle had an
Ohio license plate, that he was wearing a flannel with a
vest, and had bushy hair.
9. Defendant's recollection of the events that occurred
after the stop differed in several respects from that of the
officers. He testified that the officers ordered him to put
his hands up and exit the vehicle, and that their guns were
drawn as they approached. He recalled that one of the
officers then explained that they had just "come off a
drug bust, " and that the officer then asked defendant
"where's the drugs?" and sought permission to
search his vehicle. Before performing the field sobriety
tests, defendant stated that he informed the officers that he
had a bad back. He also testified that his eyes were always
bloodshot and watery due to a crushed lumbar in his back for
which he was taking medication. Defendant's son
testified, as well, corroborating defendant's account of
his activities that day, including his claim that he had only
a glass of wine before leaving. Called to testify in
rebuttal, Officer ...