Appeal from Superior Court, Chittenden Unit, Criminal
Division Dennis R. Pearson, J.
Heather J. Brochu, Department of State's Attorneys and
Sheriffs, Franklin County Deputy State's Attorney,
Montpelier, for Plaintiff-Appellee
Matthew Valerio, Defender General, and Dawn Matthews,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Defendant appeals his conviction of driving under the
influence (DUI), arguing that the trial court impermissibly
burdened the exercise of his Fourth Amendment rights when it
allowed evidence of his refusal to submit to a warrantless
blood draw and then instructed the jury that it was permitted
but not required to draw an inference from that evidence. He
additionally argues that this evidence should not have been
admitted because it was not relevant and was unduly
prejudicial. On the basis of our decision in State v.
Rajda, 2018 VT 72, ¶¶ 32, 39, ___ Vt.___, ___
A.3d __, we reject defendant's constitutional argument.
We decline to address his unpreserved relevance and prejudice
arguments. Accordingly, we affirm.
2. The evidence at trial reflects the following. In the
summer of 2016, defendant was charged with driving while
intoxicated, in violation of 23 V.S.A. § 1201(a)(2).
After the arresting officer stopped defendant for erratic
driving and arrested him on suspicion of DUI, defendant began
having trouble breathing. The officer called an ambulance.
The officer then accompanied defendant to the hospital and
waited while hospital staff treated defendant, performing a
blood draw and chest x-rays on him. While defendant initially
cooperated with hospital staff, he eventually became
agitated. The officer overheard defendant tell the nurses
that he did not want them to draw blood from him
"because of how they were handling the needle."
Defendant tore off his hospital gown and swore at the nurses,
said that he was "done," and announced he was
leaving. The arresting officer told defendant that he could
leave the hospital, but would remain under arrest, after
which defendant decided to stay at the hospital and continue
treatment. When the officer then asked defendant, after
advising him of the rights related to testing, if he would
allow hospital staff to draw blood for evidence of
intoxication, defendant refused.
3. Before trial, defendant moved to exclude from evidence his
refusal to submit to a blood test, arguing that allowing the
State to use his refusal against him would unduly penalize
his exercise of his Fourth Amendment right to refuse. The
trial court denied his motion, and the arresting officer
testified that defendant refused to consent to a blood test.
At the close of evidence, defendant objected to the trial
court's proposed instruction permitting the jury to draw
an inference from defendant's refusal. The trial court
overruled defendant's objection and instructed the jury:
You may choose to use the evidence that he declined to
provide a blood sample, along with any other evidence in the
case, to decide whether the State has met its burden of
proving each of the essential elements of the offense beyond
a reasonable doubt. However, you are not required to draw any
inference from this evidence.
4. The jury convicted and defendant has appealed, renewing
his argument that admitting the evidence of his refusal, and
inviting the jury to draw an inference from the fact of his
refusal, impermissibly burdened his Fourth Amendment right to
refuse the warrantless blood draw.
5. We recently, and squarely, rejected defendant's
constitutional argument in State v. Rajda.
Rajda was a consolidated case in which the
defendants argued that the Fourth Amendment forbids the
admission at trial of evidence of their refusals to submit to
warrantless blood tests after their arrests on suspicion of
driving under the influence of drugs. In Rajda, we
reviewed a string of relevant United States Supreme Court
decisions, including, most recently and most significantly,
Birchfield v. North Dakota, ___ U.S.___, 136 S.Ct.
2160 (2016), and concluded that "the Fourth Amendment
does not bar admission in a criminal DUI proceeding of
evidence of a refusal to submit to a warrantless blood
draw." 2018 VT 72, ¶ 32. We explained that
"[a]lthough the Fourth Amendment protects a motorist
from a nonconsensual warrantless submission to a blood draw,
and the implied consent law in and of itself does not supply
that consent with respect to a separate criminal prosecution
for refusal," id., admitting evidence of a
defendant's refusal to allow a warrantless blood draw
does not impermissibly burden an individual's exercise of
the Fourth Amendment right to refuse a blood draw,
id. ¶¶ 36-39.
6. Defendant's constitutional argument in this case is
indistinguishable from the argument this Court rejected in
Rajda, and we conclude that the trial court did not
err in admitting the evidence of defendant's refusal to
submit to a warrantless blood test and instructing the jury
that it may (but is not required to) draw an inference from
7. Defendant did not preserve his remaining argument that the
refusal evidence was not relevant and unduly prejudicial in
this case, as he did not clearly object before the trial
court on the basis of relevance or prejudice, see V.R.E. 401
- 403, as opposed to the constitutional ground discussed
above. See V.R.E. 103(a)(1); State v. Hinchliffe,
2009 VT 111, ¶ 31, 186 Vt. 487, 987 A.2d 988 (2009)
(holding arguments may be waived if not raised at trial
level). While this opinion does not foreclose an argument
that in the context of a particular case refusal evidence is