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State v. Schapp

Supreme Court of Vermont

May 17, 2019

State of Vermont
v.
Erika M. Schapp

          On Appeal from Superior Court, Windham Unit, Criminal Division, Erika M. Schapp Judge.

          Michael R. Kainen, J. David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

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

          EATON, J.

         ¶ 1. Defendant appeals a conviction of refusal to submit to an evidentiary breath test to determine blood-alcohol concentration. Defendant argues that (1) the court erroneously admitted evidence of her refusal to take a preliminary breath test (PBT), (2) the State failed to meet its burden of proving the "reasonableness" requirement for criminal refusal beyond a reasonable doubt, and (3) the State failed to prove that she refused the test. We affirm.

         ¶ 2. Defendant was charged with driving while intoxicated (DUI), second offense, and criminal refusal. The charges were bifurcated for trial.[1] In the DUI phase of the trial, the State presented the following evidence. Late one evening in October 2016, a Brattleboro police officer was parked downtown and observed defendant, coming from the direction of a bar, walk to a car and drive away. The officer followed the car and executed a stop after he observed the car driving ten miles over the speed limit. The officer detected a faint odor of alcohol and noticed that defendant's eyes were watery, and her speech was slightly slurred. Defendant denied drinking alcohol and stated that she was a waitress. Based on these observations, the officer asked defendant to exit the car and take field-sobriety tests. During defendant's performance of the tests, the officer observed four clues of impairment. The officer suspected that defendant was impaired and requested that defendant provide a sample of breath for a PBT. Defendant refused to take the test, and the officer arrested her and brought her to the police department. A video of the roadside encounter was admitted at trial. At the police station, the officer requested that defendant provide an evidentiary breath test and defendant refused. A video of this encounter was also admitted and played for the jury.

         ¶ 3. At the outset of the DUI stage of the trial, defendant sought to exclude the fact that defendant refused to take a PBT. The court concluded that defendant's refusal to take the PBT demonstrated consciousness of guilt and that it was admissible in the DUI trial. The court also granted defendant's request to introduce evidence about her reasons for refusing, concluding it was relevant to her state of mind.

         ¶ 4. Defendant testified that on the day of her arrest, she had been up at 5 a.m. and had worked as a waitress in a restaurant from 4 p.m. to 11:30 p.m. during which time she served alcoholic drinks. She explained that she had trouble with the roadside tests because she was tired, had a sore ankle, the terrain was uneven, and the officer's instructions were not clear. She expressed that she refused to take the PBT because she felt intimidated and isolated, and that she did not get clear answers from the officer about how the PBT would be used. She thought that the use of handcuffs and the pat down after the arrest was excessive and stated that, after being arrested and handcuffed, she offered to take a PBT, but the officer said it was too late. At the police station, she stated that it made her feel uncomfortable when she asked to use the bathroom and the officer stood in the doorway and did not turn away. She stated that she declined to take an evidentiary test because she was uncomfortable and did not want to cooperate further. Later, she asked if it was too late to take the test, and the officer said that it was.

         ¶ 5. During closing arguments to the DUI charge, the prosecutor stated that defendant had refused to take the evidentiary and preliminary tests, and stated "you can draw conclusions, based on both those refusals, she was trying to hide something. That is consciousness of her guilt, that she didn't want the police to know that she had been drinking, so she refused. She refused the test."

         ¶ 6. The court instructed the jury generally and specifically on the elements of the DUI charge. The court explained that in evaluating the elements of the charge, the jury could consider any relevant observations of defendant and that the jury could "use any evidence regarding refusal along with other evidence 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." The jury acquitted defendant on the DUI charge.

         ¶ 7. The case proceeded to the second phase regarding the refusal charge. The only additional evidence presented was the State's evidence that defendant had a prior DUI conviction, an element of the refusal charge. The State requested that the court instruct the jury not to consider defendant's reasons for refusing to provide an evidentiary test, claiming those reasons were not relevant to the refusal charge. Defendant argued that her reasons for refusing to take the test were relevant to whether the officer's request to take an evidentiary test was reasonable. The court concluded that the issue was whether the officer had a reasonable basis to believe that defendant was impaired, and this was determined by objective factors, not defendant's subjective feelings for not cooperating. In closing arguments, the State explained that the issue in the refusal prosecution was whether the officer had "reasonable grounds to believe the person was DUI and that their request was reasonable under the circumstances." The State repeated several times that the question was whether the officer had reasonable grounds to believe defendant was driving while intoxicated. Defendant argued that her refusal was not definitive, and that the officer's request was not reasonable under the circumstances.

         ¶ 8. The court began its instructions by stating "My previous instructions still apply to you, but now you are to consider these additional instructions as Count 2." The court explained the elements of the refusal charge, stating:

The fifth essential element is that at the time of the request, the officer had reasonable grounds to believe that [defendant] had been operating a motor vehicle on a highway and that she was under the influence of intoxicating liquor. Reasonable grounds means that the officer had made specific observations reasonably supporting an inference that [defendant] had been operating a motor vehicle while she was under the influence of intoxicating liquor.
The sixth essential element is that the officer's request for an evidentiary test was reasonable under the circumstances. The officer must have had reasonable grounds to believe that [defendant] had been operating a motor vehicle on a public highway and that she was under the influence of intoxicating liquor.

         ¶ 9. As to the prior evidence regarding defendant's proffered reasons for refusing to take the evidentiary test, the court further instructed the jury "not to consider why [defendant] refused an evidentiary test, only whether she refused." Defendant made one unrelated objection to the jury instruction. The jury returned a guilty verdict to the refusal charge. Defendant appeals her refusal conviction.

         I. Admission of Refusal to Take PBT

         ¶ 10. On appeal, defendant's main argument is that the court erred in admitting evidence of her refusal to take a PBT for the purpose of demonstrating her consciousness of guilt to driving while under the influence.

         ¶ 11. To fully understand defendant's argument, it is necessary to review the legal framework. The DUI statutes authorize law enforcement to administer two types of breath tests for determining blood-alcohol levels. The first is a PBT, which is an investigatory tool used by officers in the field "to ascertain whether probable cause exists to believe that an individual has been driving under the influence of alcohol." State v. McGuigan, 2008 VT 111, ¶ 14, 184 Vt. 441, 965 A.2d 511. PBTs are "quick and minimally intrusive" tests, which provide information about a person's blood-alcohol level and thus are valuable tools in detecting drunk driving. Id. (quotation omitted). For this reason, we have held that although administering a PBT is a search, it is a reasonable one under the Fourth Amendment and Article 11 as long as the officer has "specific, articulable facts indicating that an individual has been driving under the influence of alcohol." Id. The DUI statutes mirror this standard, allowing the officer to request a PBT if the officer "has reason to believe that a person may be violating or has violated section 1201 of this title." 23 V.S.A. § 1203(f). The PBT can be administered using "a device approved by the Commissioner of Public Safety." Id. The statute provides that "[t]he results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made and whether to request an evidentiary test and shall not be used in any court proceeding except on those issues." Id.

         ¶ 12. The second type of breath test is an evidentiary breath test, which, as its name implies, is one that "is intended to be introduced as evidence." Id. § 1200(3). Given that the evidentiary test may be introduced as substantive evidence of guilt of driving under the influence, the requirements for requesting an evidentiary test are different than those for the PBT. First, there is a higher threshold that police must meet to request an evidentiary test. An evidentiary test may be requested "when a law enforcement officer has reasonable grounds to believe that the person was operating, attempting to operate, or in actual physical control of a vehicle in violation of section 1201 of this title." Id. § 1202(a)(3). Second, prior to administering an evidentiary test, the person has a right to consult with an attorney and to be informed of certain information. See id. § 1202(c). Third, the statutes provide equipment and testing protocols. Id. § 1203(c), (d). If these standards are met, the numerical test results of an evidentiary test may be admitted at trial.

         ¶ 13. For either a PBT or an evidentiary test, once the required threshold is met, an officer can request a test, but a person cannot be forced to comply. State v. Therrien, 2011 VT 120, ¶ 10, 191 Vt. 24, 38 A.3d 1129 (explaining that "when an officer has a reasonable suspicion of DUI, he may 'request' that the suspect provide a breath sample, but not order such participation"). However, in certain circumstances. refusing to comply can result in a criminal penalty or in admission of the refusal at trial. A person who has a prior DUI conviction "and refuse[s] a law enforcement officer's reasonable request under the circumstances for an evidentiary test where the officer had reasonable grounds to believe the person" was committing a DUI, can be charged with criminal refusal. 23 V.S.A. § 1201(b). Further, "[a] refusal to take a breath test may be introduced as evidence in a criminal proceeding." Id. § 1202(b).[2]

         ¶ 14. Here, defendant was charged with both DUI-second offense, based on the officer's observations that she was under the influence, and criminal refusal for refusing to take an evidentiary test. Prior to trial, the court decided that defendant's refusal was admissible but did not differentiate between the refusal to take the PBT or the evidentiary test. In the DUI phase of the trial, the State presented evidence that defendant refused to take both the PBT and the evidentiary test. The refusals were ...


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