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State v. Giguere

Supreme Court of Vermont

May 12, 2017

State of Vermont
v.
Renee P. Giguere

         On Appeal from Superior Court, Essex Unit, Criminal Division, Michael R. Kainen, J.

          Gregory Nagurney, Deputy State's Attorney, Montpelier, for Plaintiff-Appellant.

          Corby A. Gary of The Law Office of Corby A. Gary, St. Johnsbury, for Defendant-Appellee.

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

          REIBER, C.J.

         ¶ 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.[1] 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.[2] 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, [3] 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 ...

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