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,
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.
2. Defendant was charged with driving while intoxicated
(DUI), second offense, and criminal refusal. The charges were
bifurcated for trial. 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
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
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.
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).
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 ...