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State v. Rajda

Supreme Court of Vermont

July 20, 2018

State of Vermont
v.
Shannon Rajda State of Vermont
v.
Albert Lee Lape, Jr.

          On Appeal from Superior Court, Rutland Unit, Criminal Division Cortland Corsones, J.

          Rosemary M. Kennedy, Rutland County State's Attorney, and John D.G. Waszak and Travis Weaver, Deputy State's Attorneys, Rutland, for Plaintiff-Appellant.

          Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendants-Appellees.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Davenport, Supr. J. (Ret.), Specially Assigned.

          REIBER, C.J.

         ¶ 1. In the above consolidated cases, the State appeals the trial court's interlocutory orders granting defendants' motions in limine seeking to suppress evidence of their refusal to submit to blood tests to determine if they were operating a motor vehicle under the influence of drugs (DUI). The trial court granted the motions in limine based on its conclusion that in Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016), the U.S. Supreme Court recognized a constitutional right, pursuant to the Fourth Amendment of the U.S. Constitution, to refuse to submit to a warrantless blood test. In the trial court's view, that constitutional right supersedes Vermont's implied consent law and precludes the State from introducing evidence of defendants' refusal at their criminal DUI trial. The State challenges the trial court's interpretation of Birchfield, arguing that the U.S. Supreme Court indicated therein that evidence of a refusal to take a warrantless blood test in the context of a DUI arrest and prosecution could be admitted at trial as evidence of guilt. Defendants respond that the constitutional issue has been effectively mooted by a post-Birchfield amendment to Vermont's implied consent law and that, in any event, the trial court correctly construed Birchfield and other related federal law to prohibit the admission of evidence of a refusal to consent to a warrantless blood test. We conclude that the amendment to the implied consent law did not moot the constitutional issue before us. We further conclude that the trial court erred in determining that, following the Birchfield decision, the Fourth Amendment prohibits admitting in a criminal DUI proceeding evidence of a defendant's refusal to submit to a warrantless blood test requested pursuant to Vermont's implied consent law. Accordingly, we reverse the trial court's decisions granting defendants' motions in limine and remand the cases for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶ 2. In State v. Rajda, the trial court accepted as true the following facts set forth in the State's affidavits. On September 3, 2015, a state trooper responded to a report of a motor vehicle accident in Shrewsbury, Vermont. At the scene, the trooper interviewed defendant, who stated that she "blacked out" while driving on the road and regained consciousness immediately before crashing her vehicle. She told the trooper that her driver's license had been suspended following a conviction for DUI. She also stated that she had a history of alcohol use and opiate addiction. She denied having had anything to drink before the crash, and a preliminary breath test indicated a 0.00 blood-alcohol content (BAC).

         ¶ 3. The trooper then arrested defendant on suspicion of DUI and driving with a suspended license. Following the arrest, a drug recognition expert evaluated defendant and determined that she was under the influence of a central nervous system depressant. When asked to submit to a blood test, defendant refused.

         ¶ 4. The State originally charged defendant with: DUI, third offense[1]; criminal refusal; operating a motor vehicle with a suspended license; reckless endangerment; and cruelty to a child under ten years of age. Following the Birchfield decision, in which the U.S. Supreme Court held that a motorist suspected of DUI could not be criminally prosecuted for refusing to take a blood test, ___ U.S. at ___, 136 S.Ct. at 2184-86, the State dismissed the criminal refusal charge. Defendant filed a motion in limine seeking to suppress evidence of her refusal to submit to a blood test, arguing that under Birchfield she had a constitutional right to refuse to submit to the test and thus the State could not present evidence of her refusal to do so. In opposition to the motion, the State argued that the holding in Birchfield prohibited only a separate prosecution for a refusal and did not extend to prohibiting admission of evidence of a refusal at a DUI prosecution.

         ¶ 5. In a February 1, 2017 decision, the trial court agreed with defendant, ruling that after the U.S. Supreme Court's decision in Birchfield, the Fourth Amendment prohibited admission of evidence of a refusal to submit to a warrantless blood test. Accordingly, the court concluded that the provision in Vermont's implied consent law explicitly allowing the introduction of evidence of a refusal to take an evidentiary test, defined as either a breath or blood test, was unconstitutional under the U.S. Constitution to the extent it applied to blood tests.

         ¶ 6. Two months later, the same trial court judge, by entry order, granted defendant's motion in limine in State v. Lape. As in Rajda, a drug recognition expert found defendant to be impaired after he was arrested for DUI. Defendant was initially charged with DUI-fourth offense, criminal refusal-third offense, driving with a suspended license, and possession of a narcotic drug. In response to defendant's motion in limine, the State dismissed the criminal refusal charge. The trial court concluded that no facts distinguished this case from State v. Rajda with respect to its legal analysis.

         ¶ 7. In each case, the State filed a motion for permission to file an interlocutory appeal, and the trial court granted the motions. We accepted the interlocutory appeals and consolidated the cases for purposes of briefing and argument.

         ¶ 8. On appeal, the State argues that there is no constitutional basis for excluding refusal evidence in DUI prosecutions and that the U.S. Supreme Court's decision in Birchfield strongly suggested that the evidentiary consequences of a refusal to submit to a blood test in such circumstances are not constitutionally barred. Defendants respond that: (1) the appeals should be dismissed as moot in light of an amendment, effective July 1, 2017, to Vermont's implied consent law that continues to expressly allow the admission of a refusal to submit to a warrantless breath test, but no longer expressly allows the admission of a refusal to submit to a warrantless blood test; and (2) in any event, the trial court correctly ruled that, after Birchfield, the admission of evidence at a criminal DUI prosecution of a defendant's refusal to submit to a warrantless blood test violates the Fourth Amendment of the U.S. Constitution.

         II. Statutory Amendment

         ¶ 9. Defendants first argue that we need not resolve the constitutional issue raised in these appeals because the Legislature has amended the implied consent statute to make it clear that evidence of a refusal to take a blood test, as opposed to a breath test, may not be admitted at a criminal DUI prosecution. We disagree.

         ¶ 10. Under Vermont's implied consent law, any person operating a motor vehicle on a highway within the state "is deemed to have given consent to an evidentiary test of that person's breath for the purpose of determining the person's alcohol concentration or the presence of other drug in the blood." 23 V.S.A. § 1202(a)(1) (emphasis added). Further, a motor vehicle operator "is deemed to have given consent to the taking of an evidentiary sample of blood" in situations where "breath testing equipment is not reasonably available or . . . the officer has reason to believe that the person is unable to give a sufficient sample of breath for testing or . . . the law enforcement officer has reasonable grounds to believe that the person is under the influence of a drug other than alcohol." Id. § 1202(a)(2) (emphasis added). When an officer has reasonable grounds to believe that a person is operating a motor vehicle while impaired, in violation of 23 V.S.A. § 1201, an "evidentiary test shall be required." Id. § 1202(a)(3). An evidentiary test is defined by statute as "a breath or blood test which indicates the person's alcohol concentration or the presence of other drug and which is intended to be introduced as evidence." Id. § 1200(3). The implied consent law criminalizes refusing a reasonable request to take "an evidentiary test" when either the person has a prior DUI conviction or was involved in an accident that resulted in serious bodily injury or death to another. Id. § 1201(b)-(c).

         ¶ 11. In June 2016, the U.S. Supreme Court held in Birchfield that, absent exigent circumstances, "the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving," but does not permit the taking of warrantless blood tests either incident to an arrest for drunk driving or based on the driver's legally implied consent to submit to the test. U.S. at ___, 136 S.Ct. at 2184-86. In an apparent response to this decision, the Legislature amended § 1202 as follows. First, at the end of the subsection on blood tests, § 1202(a)(2), the following sentence was added: "A blood test sought pursuant to this subdivision (2) shall be obtained pursuant to subsection (f) of this section." 2017, No. 62, § 9. Second, the clause "[i]f a blood test is sought from a person pursuant to subdivision (a)(2) of this section" was added to the beginning of § 1202(f), which provides that a law enforcement officer may apply for a search warrant to conduct a blood test if a person who has been involved in an accident resulting in serious injury or death to another refuses an evidentiary test. Id.

         ¶ 12. Third, and most relevant to this appeal, is the amendment to § 1202(b). The subsection previously provided as follows: "If the person refuses to submit to an evidentiary test it shall not be given, except as provided in subsection (f) of this section, but the refusal may be introduced as evidence in a criminal proceeding." 23 V.S.A. § 1202(b) (2014) (emphasis added). After enactment of the amendment, the subsection now reads: "A refusal to take a breath test may be introduced as evidence in a criminal proceeding." 23 V.S.A. § 1202(b) (emphasis added); see 2017, No. 62, § 9.

         ¶ 13. Defendants argue that this change demonstrates the Legislature's intent to prohibit admitting in a criminal DUI proceeding evidence of a refusal to submit to a warrantless blood test. Defendants reason that because § 1202(b) still explicitly allows admitting evidence of a refusal to take a breath test but no longer explicitly allows admitting evidence of a refusal to take an evidentiary test, which by definition would include a blood test, the Legislature has expressed its intent to prohibit admitting evidence of a refusal to take a blood test. Defendant further argues that because amendments concerning the admissibility of types of evidence are considered procedural rather than substantive in nature, the amended statute must be applied to the instant cases, which were pending at the time of the amendment. See 1 V.S.A. § 213 ("No act of the General Assembly shall affect a suit begun or pending at the time of its passage, except acts regulating practice in court, relating to the competency of witnesses, or relating to amendments of process or pleadings."); see also Ulm v. Ford Motor Co., 170 Vt. 281, 287-88, 750 A.2d 981, 987 (2000) (concluding that because subsections of safety belt statute "prohibit admissibility of a particular type of evidence, thereby regulating practice in court," they "are procedural rather than substantive" and "fall within § 213's exception"). The State does not challenge the retroactive application of the amended statute to the instant cases, but it asserts that nothing in the 2017 amendment prohibits the introduction of refusal evidence with respect to blood tests and that the Legislature intended only to comply with Birchfield, which does not prohibit admitting in a criminal DUI proceeding evidence of a refusal to submit to a blood test.

         ¶ 14. "When construing a statute, our paramount goal is to effectuate the intent of the Legislature." State v. Love, 2017 VT 75, ¶ 9, ___ Vt. ___, 174 A.3d 761 (quotation omitted). We look first to the statutory language's plain meaning as an expression of legislative intent, but when the statutory language is ambiguous or does not provide sufficient guidance to ascertain that intent, "the Court may look elsewhere to determine the legislative intent in order to provide a fair and reasonable construction of the statute." State v. Reed, 2017 VT 28, ¶ 20, ___ Vt. ___, 169 A.3d 1278. Further, "[t]estimony given to a committee of the Legislature may provide some clues as to the purpose of [an] amended statute." Id. In this case, the plain language of the statute does not make it clear whether the Legislature intended to exclude at a criminal DUI proceeding evidence of a refusal to submit to a blood test.

         ¶ 15. Our review of the legislative history reveals that the Legislature enacted the 2017 amendment to § 1202 to make Vermont's implied consent law compliant with the federal constitutional constraints imposed by the U.S. Supreme Court in Birchfield. The language amending § 1202 that ultimately became part of the more comprehensive Act 62 was initially introduced before the House Committee on Transportation as H. 146 and later H. 511. Legislative counsel explained to the committee that the bill was drafted to amend § 1202 so that it complied with the two main holdings in Birchfield barring under the Fourth Amendment warrantless blood tests as well as criminal prosecution for a refusal to consent to a warrantless blood test. Hearing on H.146 Before House Comm. on Transp., 2017-2018 Bien. Sess. (Vt. Mar. 1, 2017), at 1:45-2:30. Committee members repeatedly asked if the amendment satisfied the constitutional requirements of Birchfield. Legislative counsel, as well as attorneys representing the Defender General's Office and the Office of States' Attorneys, agreed that it did. At one point during his testimony before the Committee, legislative counsel stated that Birchfield held if one were to refuse a blood test, the refusal could not be introduced into a criminal proceeding. Id. at 21:40-22:02. He further stated that all of the changes to the statute were necessary to comport with Birchfield.[2] Id. at 22:15.

         ¶ 16. Added to both H. 146 and H. 511 was the following statement of purpose, which was not included in the more comprehensive H. 503 that became Act 62:

This bill proposes to make Vermont's implied consent statute consistent with the U.S. Supreme Court's decision in Birchfield v. North Dakota by providing that: (1) a warrant is required before a blood test can be given to a person suspected of DUI; and (2) a person cannot be ...

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