State v. Alzaga, 18-149

• Decision Date: 04 October 2019
• Docket Number: No. 18-149,18-149
• Citation: 221 A.3d 378
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Paul R. ALZAGA

221 A.3d 378

STATE of Vermont

v.Paul R. ALZAGA

No. 18-149

Supreme Court of Vermont.

May Term, 2019

October 4, 2019

David Tartter, 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, JJ.

EATON, J.

¶ 1. Defendant appeals his conviction for DUI refusal. On appeal, defendant argues: (1) the court erred in admitting testimony indicating that defendant had refused to take a preliminary breath test (PBT) and regarding the Horizontal Gaze Nystagmus (HGN) test; (2) the court committed plain error in instructing the jury and designing the jury verdict form; and (3) the conviction is invalid because the jury did not enter a verdict. We affirm.

¶ 2. Defendant was charged with DUI refusal after he was stopped on suspicion of driving while intoxicated and subsequently refused to take an evidentiary breath test. The DUI refusal statute prohibits someone who has a prior DUI conviction from operating, attempting to operate, or being in actual physical control of a vehicle on a highway and refusing an officer's reasonable request for an evidentiary test "where the officer had reasonable grounds to believe" the person was committing a DUI. See 23 V.S.A. § 1201(b). The term "reasonable grounds" as used in this context is akin to probable cause. State v. Perley, 2015 VT 102, ¶ 18, 200 Vt. 84, 129 A.3d 93.

¶ 3. Prior to trial defendant filed a motion requesting that the DUI refusal charge be dismissed because he alleged that he was not the driver of the vehicle. He argued that the State could not show that he had operated the vehicle. He claimed that the dashboard camera showed that he switched seats with the actual driver when the vehicle was pulled over. The court denied the motion, concluding that there was enough evidence to allow the jury to fairly and reasonably find that defendant drove or had the intent to drive the vehicle. The court explained that any video showing the driver and passenger changing places was modifying evidence that was not relevant to the motion to dismiss.

¶ 4. At the outset of the trial, the court bifurcated the issue of whether defendant had a prior DUI conviction. The court explained that it would submit to the jury a verdict form with questions and if the jury affirmatively answered those questions, the court would ask them to determine whether defendant had a prior conviction. In addition, the State sought clarification on whether defendant's refusal to take the PBT could be admitted. The court determined that the State could present evidence that defendant refused to take the PBT to demonstrate the reasonableness of the officer's belief that defendant was driving while intoxicated.

¶ 5. The case proceeded and during the State's opening statement, defendant objected to the State's reference to the results of the HGN test on the ground that expert testimony was required to demonstrate what the test means and how it relates to alcohol consumption. The State countered that if defendant sought to exclude this evidence, he was required to file a motion in limine prior to trial under Vermont Rule of Evidence 702. The court ruled that defendant had waived the issue by not raising it sooner.

¶ 6. The State presented the following evidence. An officer was on patrol around midnight in downtown Middlebury and stopped at a tavern. While there, he observed a vehicle leave the parking lot and drive the wrong way down a one-way alley. The officer executed a stop of the vehicle. Defendant was in the driver's seat, the keys were in the ignition, and the engine was running. The officer testified that he had special DUI training on how to look for clues of impaired driving, how to operate the evidentiary-breath-test machine, and how to conduct field-sobriety tests. He also testified that he had taken an advanced roadside impaired driving enforcement class. After executing the stop, he noticed that defendant had watery eyes and slurred speech and there was an odor of alcohol coming from the vehicle. When questioned, defendant admitted drinking alcohol and could not recall exactly how much. Once a second officer arrived, the officer asked defendant to perform field-sobriety tests. The officer explained that these measure gross motor skills, balance, and memory.

¶ 7. Defendant objected when the officer attempted to testify about administering the HGN. Defendant argued that there was no foundation because the officer did not describe any specific HGN training. The officer testified that his DUI training included information about how to administer the HGN test and the clues to look for. He also testified that the clues are an indication of a depressant like alcohol in a person's system. When the officer testified, defendant again objected that there was an insufficient foundation for the testimony regarding the HGN and the lack-of-convergence tests. The court allowed the testimony to be admitted for the purpose of demonstrating whether the officer had a reasonable basis for believing defendant was DUI. The officer explained how the test was given and what the different tests showed. The officer described the clues he observed for defendant.

¶ 8. The officer also described administering the field-sobriety tests and testified that defendant did not complete the walk-and-turn test and exhibited several clues of intoxication while attempting it. Defendant refused to perform further tests. The officer testified that defendant refused to give a preliminary sample of his breath. The State introduced a video from the evening.

Based on these observations, the officer arrested defendant. At the station, defendant refused to provide an evidentiary sample of his breath.

¶ 9. On cross-examination, defendant played a video and asserted that it showed the occupants changing places. The officer stated that when he made contact, defendant was in the driver's seat, the engine was on, and the keys were in the ignition. The officer stated that defendant did not claim at the time that he was not driving.

¶ 10. Defendant's defense at trial was that he did not drive the vehicle and never intended to drive the vehicle. Defendant testified that he had not been driving and had slipped into the driver's seat when the vehicle was pulled over. He said that he switched to help his friend to avoid getting in trouble with the law. He agreed that when the officer asked how much he had been drinking, he said, "let's just get this over with," and admitted that he had done several shots in the preceding half hour. The other passengers in the car also testified that a different occupant was driving that night and that defendant was in the passenger seat.

¶ 11. In discussion of the jury instructions, defense counsel stated that the issue was identity, not impairment. In closing argument, the State argued that the officer had reasonable grounds to believe defendant was driving under the influence. The State pointed to the odor of alcohol, the failed field-sobriety tests, the slurred speech, the watery eyes, defendant's acknowledged consumption of alcohol, and defendant's admission that he was going to get arrested. The State did not mention the denial of the request to take a PBT or the HGN and lack-of-convergence tests. Defendant's closing argument focused on the seat switch. He did not present any argument regarding whether there were reasonable grounds for the officer to believe he was DUI.

¶ 12. The court instructed the jurors on the elements of the refusal offense, explaining that they had to find that (1) defendant operated, attempted to operate, or was in actual physical control of a motor vehicle, (2) the operation was on a highway, (3) police asked defendant to take an evidentiary test, (4) the officer had reasonable grounds to believe the defendant was driving under the influence, and (5) defendant refused to take the test. The jury was provided with a special verdict form listing questions for the jury to answer. Defendant did not object to the form. Later, the court made changes suggested by the parties and asked for further input. After discussion, there were no objections to the instructions. The jury returned an affirmative answer to all questions on the form. The court proceeded to the question of defendant's prior convictions. Defendant stipulated that he had prior convictions and the court entered a guilty verdict.

I. Admission of Refusal To Take PBT and HGN Evidence

¶ 13. On appeal, defendant argues that the court erred in admitting evidence that defendant refused to take the PBT¹ and in admitting the officer's testimony describing the HGN test. As to the PBT refusal, defendant argues that: the PBT refusal was inadmissible under 23 V.S.A. § 1203(f)² ; admission of the PBT refusal violated defendant’s right to due process³ ; and the PBT refusal was inadmissible because it was unduly prejudicial. As to the HGN testimony, defendant contends that, without an expert, there was an insufficient foundation for admission of evidence describing how the different clues relate to intoxication. We conclude that any error in admitting this evidence was harmless beyond a reasonable doubt.

¶ 14. Harmless errors are those that do not "affect substantial rights." V.R.Cr.P. 52(a). To meet the standard "the reviewing court must find beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error." State v. Oscarson, 2004 VT 4, ¶ 30, 176 Vt. 176, 845 A.2d 337. When the alleged error is admission of evidence, it is not harmless if "there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id. (quotation omitted). In assessing the likelihood that admission of the evidence contributed to conviction, we consider, among other things, the importance of the evidence to the State's case, whether it was cumulative,...