Appeal from Superior Court, Windham Unit, Criminal Division
Michael R. Kainen, J.
Tartter, Deputy State's Attorney, Montpelier, for
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 drug- and alcohol-related probation
conditions arising from his conviction for grossly negligent
operation of a motor vehicle. Defendant argues that these
conditions are not reasonably related to his crime or to his
rehabilitation. He also argues that two conditions-the random
drug and alcohol testing conditions-violate Article 11 of the
Vermont Constitution and the Fourth Amendment to the United
States Constitution and should either be stricken or amended.
We conclude that defendant failed to properly preserve his
objections to the alcohol-related conditions and to the
constitutional question, and we therefore decline to review
them for the first time on appeal. We affirm the imposition
of the drug condition prohibiting defendant from possessing
unprescribed, regulated drugs, because the condition
prohibits illegal conduct. However, we strike the random drug
testing in Condition M and strike language related to drug
screening treatment from Condition 3 because it is not
reasonably related to defendant's circumstances or
2. The following facts are, unless otherwise noted,
undisputed and supported by the record. See State v.
Ramsay, 146 Vt. 70, 79, 499 A.2d 15, 21 (1985) ("On
appeal, defendant bears the burden to show that materially
inaccurate information was relied upon by the sentencing
court."); Reporter's Notes-1980 Amendment, V.R.Cr.P.
32 ("[T]he [sentencing] court may consider unsworn
information from a variety of sources, including the
[Presentence Investigation Report] and in-court or
out-of-court statements of . . . officials who have had
contact with [the defendant].").
3. One evening in October 2017, defendant crashed his car
into a tree. A state trooper responded to the scene along
Route 100 near Londonderry. Defendant explained to the
trooper that he had caught himself nodding off while driving
to meet a friend for dinner. After turning his car around to
return home, according to defendant, he contemplated pulling
over to rest. But he did not pull over. He subsequently fell
asleep while driving and awoke to the airbags deploying upon
his crashing into the tree. Defendant told the trooper that
he had taken antibiotics earlier that day, which he thought
may have aggravated his fatigue. Although defendant also
admitted to drinking three beers, he reported that he had
finished the last one several hours before the accident.
Defendant also told the trooper that he had been convicted of
driving under the influence of alcohol (DUI) in 2005 and his
license had only been reinstated one month before this crash,
after being suspended for more than twelve years.
4. Observing defendant, the trooper noted signs consistent
with alcohol intoxication and attempted to conduct roadside
testing to assess defendant's degree of
impairment. But, defendant's back had been injured
in the crash, which interfered with his ability to perform
the tests. After declining to provide a preliminary breath
sample, defendant was taken to the hospital for medical
treatment. At the hospital, defendant consented to an
evidentiary blood draw to test for alcohol or drugs. A sample
of defendant's blood was taken about three-and-a-half
hours after the crash. It was tested for alcohol by the
laboratory, and, according to the report, any amount of
ethanol in defendant's blood at the time of the blood
draw was below the laboratory's reporting threshold. The
trooper never requested that defendant's blood sample be
tested for drugs, and it was never so tested.
5. The State initially charged defendant with one count of
DUI second offense, 23 V.S.A. § 1201(a)(2), and one
count of careless or negligent vehicle operation, 23 V.S.A.
§ 1091(a). The parties then entered into a plea
agreement under the following terms: the DUI charge was
amended to a charge of grossly negligent operation, 23 V.S.A.
§ 1091(b), to which defendant pleaded guilty. The State
dismissed the charge of careless and negligent operation. At
a contested sentencing hearing, the State submitted evidence
establishing that defendant had four prior DUI convictions:
two from the late 1970s and two in 2005. Defense counsel
submitted into evidence the blood-test results and a medical
record confirming defendant's back fracture.
6. The State conceded that it could not prove beyond a
reasonable doubt that defendant was impaired by drugs or
alcohol when defendant crashed his car, which was why the
State dismissed the DUI charge. Still, it argued for the
court to find that defendant's use of drugs and alcohol
played a role in causing the crash for several reasons:
defendant had four prior DUI convictions; he admitted that he
drank three beers several hours before the crash; the
responding trooper observed signs in defendant at the scene
consistent with alcohol intoxication; defendant admitted that
he had taken antibiotics and suggested that this medication
may have contributed to his drowsiness; drugs and alcohol,
"especially combined," often cause drowsiness; and
the negative blood-test result for alcohol, taken more than
three hours after the accident, did not rule out the
possibility of alcohol impairment at the time of the
crash. Thus, the State requested a sentence of
eighteen to twenty-four months of incarceration, all
suspended except thirty days to serve and probation
conditions relating to drugs and alcohol.
7. Defense counsel countered by arguing that the court should
infer from defendant's statement and the blood test-which
did not establish that he had alcohol in his system-that
defendant had a few beers early in the day, showered, and
then drove to meet a friend for dinner with a blood-alcohol
level of zero. As for drug impairment, defense counsel argued
that defendant's admission to using antibiotics should be
discounted because at the time of the admission he had been
significantly injured. Moreover, use of antibiotics is not
illegal if prescribed and, counsel suggested that antibiotics
would not have impaired defendant's ability to drive.
Defense counsel argued further that the theory that this case
involved drug use is contradicted by the trooper's
decision not to test defendant's blood sample for drugs.
Counsel requested that defendant be fined, and, if the court
believed supervision was needed, that he be placed on
8. The sentencing court found that the precise extent of
defendant's impairment was unclear, but defendant was
overtired, consumed alcohol on the day of the crash, and had
multiple prior convictions for driving while intoxicated. The
court observed that defendant was fortunate to have only hit
a tree and suffered relatively mild injuries. He could have
killed someone. In fashioning a sentence, the court explained
that based on defendant's prior record and the potential
involvement of drugs or alcohol in this case, the court could
not "ignore what I think is [defendant's] need for
alcohol and drug programming." This programming, the
court explained, would serve both rehabilitative and
9. The court sentenced defendant to a $400 fine, six to
eighteen months of incarceration, all suspended except two
days, eighteen months of probation, and a series of probation
conditions, which included the following relating to drugs
Condition L. You must not buy, have or use any regulated
drugs unless they are prescribed by a doctor.
Condition M. Your probation officer or any other person
authorized by your probation officer can require you to have
random urinalysis testing.
[Special Condition] 1. You must not buy, have or drink any
alcoholic beverages; you must submit to any alcosensor test
or any other alcohol test[.]
[Special Condition] 3. You must have alcohol and/or drug
screening. If the screening shows that counseling and/or
treatment is needed, you must attend and participate in
whatever counseling and/or treatment your probation officer
tells you to do. You must complete ...