Appeal from Superior Court, Essex Unit, Criminal Division,
Michael R. Kainen, J.
Gregory Nagurney, Deputy State's Attorney, Montpelier,
A. Gary of The Law Office of Corby A. Gary, St. Johnsbury,
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. This driver's license suspension case stems from the
State's accusation that defendant had been driving under
the influence (DUI) before she crashed her car and was
transported to the nearest hospital, which was located in New
Hampshire. The State appeals the trial court's judgment
in favor of defendant, which was based on the court's
determination that defendant's refusal to provide a
blood sample to the investigating Vermont state
trooper must be suppressed because breath testing
equipment was reasonably available. On appeal, the State
argues that there should have been no suppression because
breath testing equipment was not reasonably available. We
agree and therefore reverse and remand.
2. Defendant is a New Hampshire resident. Shortly after
midnight on October 18, 2015, she crashed her car while
driving on Route 114 in Canaan, Vermont, near the border with
New Hampshire. A United States Border Patrol agent was
the first on the scene. The agent observed not only the smell
of alcohol but also that defendant was slurring her speech.
Defendant told the agent that she did not know what happened
leading up to the crash, but she also admitted to having
consumed alcohol that evening. Concerned that defendant had
suffered a head or neck injury, the agent requested an
ambulance, and defendant was transported to Upper Connecticut
Valley Hospital (UCVH) in Colebrook, New Hampshire.
3. Shortly thereafter, a Vermont state trooper arrived at the
crash scene, and the agent told the trooper about his
observations of defendant. The trooper then drove to UCVH,
encountering defendant at roughly 1:48 a.m. in the emergency
room. He noticed that she had "bloodshot,
watery eyes" and "[t]here was still an odor of
intoxicants coming from her person." The trooper
administered some field sobriety tests, and defendant told
him that "she had approximately two beers and a glass of
wine." The trooper concluded that he "had
reasonable grounds to believe that she was under the
influence while operating a vehicle." But the trooper
did not request a breath sample-he testified that (1) he was
not permitted to use New Hampshire testing equipment; (2) he
would have had to bring defendant back to Vermont to use
equipment at either the police station in Canaan, the
barracks in St. Johnsbury, or the barracks in Derby; and (3)
he was not permitted to arrest defendant in New Hampshire.
4. Moreover, the trooper also testified that he did not have
easy access to the breath testing equipment at the police
station in Canaan,  which had been locked for the night:
"I'm not sure if it was-on that date if it was
operating or functional, if I was going to have access to it.
I didn't have a key to it. I would have to get somebody
to open it for me." Furthermore, as to the person who
did have the key-Canaan's police chief-the trooper
testified, "We had already called him that night and he
was out of town and unavailable." And other than the
equipment in Canaan, the closest Datamaster DMT was at the
barracks in St. Johnsbury or the barracks in Derby, both
"between an hour, an hour and a half" away. With
these considerations in mind, the trooper did not even ask
defendant to accompany him back to Vermont for a breath test.
Instead, he requested a blood sample from defendant, and
defendant refused without explanation.
5. The trooper cited defendant for DUI-1 in violation of 23
V.S.A. § 1201(a) ("A person shall not operate,
attempt to operate, or be in actual physical control of any
vehicle on a highway: (1) when the person's alcohol
concentration is 0.08 or more . . . ."). Eight days
later, the trooper served defendant with a notice of
intention to suspend under 23 V.S.A. § 1205. The court
held a preliminary civil suspension hearing on November 17,
2015, and a final civil suspension hearing on January 19,
2016. On July 26, 2016, the court issued judgment in favor of
defendant because it determined that defendant's refusal
to provide a blood sample to the trooper must be suppressed.
6. The court concluded "on this narrow set of
facts" that "breath testing equipment was
reasonably available" and that the trooper "assumed
from the start that he was getting blood." It
explained that the trooper could have taken defendant from
UCVH back to Vermont but that the trooper did not explore
that option. The court specifically found that there was
"no indication that [defendant] posed any threat"
and that the trooper "could have asked her if she would
voluntarily take a ride with him." The trooper then
could have transported defendant back to the police station
in Canaan, but the trooper erroneously "did not make
inquiry as to whether he could use [the equipment] because he
did not plan to bring her back." Alternatively, the
court said, the trooper could have transported defendant to
the St. Johnsbury or Derby barracks, both of which definitely
would have had breath testing equipment available.
7. On appeal, the State argues that breath testing equipment
was not reasonably available because (1) it was not possible
to obtain a breath sample within two hours of the crash and
(2) the trooper had no legal means of transporting defendant
back to Vermont for a breath test. In reviewing the judgment,
we review the court's factual findings for clear error
and the court's legal conclusions de novo. State v.
Dubuque, 2013 VT 3, ¶ 8, 193 Vt. 180, 67 A.3d 238
("In reviewing a motion to suppress, we will defer to
the trial court's findings of fact unless they are
clearly erroneous. We review the court's legal
conclusions de novo."); see also State v.
Spooner, 2012 VT 90, ¶ 11, 192 Vt. 465, 60 A.3d 640
(noting in appeal of dismissal of driver's license
suspension complaint that "the trier-of-fact is in the
best position to determine the weight and sufficiency of the
evidence presented" (citation omitted)). We agree with
the State and hold that breath testing equipment was not
reasonably available, in large part due to the difficulties
pointed out by the State.
8. Vermont law regarding DUI explicitly favors breath testing
over blood testing. See Dubuque, 2013 VT 3, ¶ 3
("Vermont law favors breath tests over blood tests . . .
."); State v. Yudichak, 147 Vt. 418,
419, 519 A.2d 1150, 1151 (1986) (noting that "the
legislature has expressed its preference for breath testing
over blood testing"). It provides that any driver on its
highways impliedly consents to a breath test to determine his
or her blood alcohol content:
Every person who operates, attempts to operate, or is in
actual physical control of any vehicle on a highway in this
State is deemed to have given consent to an evidentiary test
of that person's breath for the purpose of ...