Craw v. District Court of Vermont, Unit No. 1, Windham Circuit, 86-602

• Citation: 150 Vt. 114,549 A.2d 1065
• Decision Date: 17 June 1988
• Docket Number: No. 86-602,86-602
• Parties: . 1, WINDHAM CIRCUIT and William H. Conway, Jr., Commissioner of Motor Vehicles. Supreme Court of Vermont
• Court: United States State Supreme Court of Vermont

Page 1065

549 A.2d 1065

150 Vt. 114

Terrence W. CRAW v. DISTRICT COURT OF VERMONT, UNIT NO. 1, WINDHAM CIRCUIT and William H. Conway, Jr., Commissioner of Motor Vehicles.

No. 86-602.

Supreme Court of Vermont.

June 17, 1988.

Jesse M. Corum, IV, and Edwin P. Gale, Law Clerk, on the brief, of Gale, Gale & Corum, Brattleboro, for plaintiff-appellant.

M. Patricia Zimmerman and Mark T. Cameron, Windsor County Deputy State's Attys., White River Junction, for defendants-appellees.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

PECK, Justice.

Plaintiff, Terrence W. Craw, appeals from a judgment of the Windham Superior Court upholding the suspension of his automobile driver's license as ordered by the district court. The district court's order was predicated on his alleged refusal to submit to a blood-alcohol test after having been stopped on suspicion of operating under the influence of intoxicating liquor (DUI). See 23 V.S.A. § 1205(a). We affirm.

The proceedings before the superior court were not evidentiary in nature. The parties agreed that the case could be decided on the transcript of the refusal hearing in district court, ^* the memorandums submitted, and the arguments of counsel.

The sole issue presented by plaintiff for our review is whether a motorist, stopped by the police on suspicion of DUI, can be found, on the basis of his conduct alone, to have refused to submit to a breath test as required by 23 V.S.A. § 1202, when he was not asked in specific terms to give a sample of his breath, nor advised of his attendant statutory rights as provided by 23 V.S.A. § 1202(c).

Although this is a single issue case, the result hinges on the facts disclosed by the record. For the most part, they are established by the testimony of two police officers who testified for the prosecution during the evidentiary hearing in the district court; the plaintiff did not take the stand, nor was there any direct evidence offered on his behalf. Nevertheless, because of the importance of the factual pattern to an understanding of our conclusion, it is appropriate that the facts be outlined here in some detail.

At approximately ten o'clock in the evening of March 30, 1986, an officer of the Vernon Police Department, patrolling in a police cruiser, observed a truck being operated in a manner he considered erratic. After some difficulty, since the operator appeared to ignore the siren and flashing lights of the cruiser, the officer succeeded in stopping the truck. The operator and sole occupant was the plaintiff.

The officer noted some slurring in plaintiff's speech and glassiness in his eyes. At the former's request, plaintiff attempted certain dexterity tests which the officer regarded as having been performed in an unsatisfactory manner. This led the officer to believe that plaintiff was under the influence of intoxicating liquor, and the officer asked him to take a nonevidentiary alco-sensor test; plaintiff refused this request.

Next, the officer told plaintiff he would have to go with him to the police station for DUI processing. Again, plaintiff refused. At the hearing in the district court, the officer testified: "He said he did not want to do any further testing, that he had done enough ... I asked him more than once to come back to the office for the test--for the testing--and he refused to come." Plaintiff announced instead that he intended to go home.

Because of plaintiff's belligerent refusal to cooperate, the officer apparently anticipated there might be trouble. He returned to the cruiser and radioed for backup assistance. When he returned to the truck he found the plaintiff had reentered the cab and was prepared to drive away. The officer warned him not to drive and tried to reach the keys, but plaintiff pushed his hand away, started the truck, and drove off with the officer again pursuing in his cruiser.

The pursuit was relatively short; plaintiff drove to the residence where he lived as a tenant. The officer arrived and followed him into the house, out again through another door, and into a cornfield at the rear. At this point a second officer appeared in response to the earlier backup call. The two followed plaintiff, finally confronting him in the field.

The second officer tried to persuade plaintiff to accompany them to the station for processing. These requests were countered with cursing by plaintiff and statements that he wasn't going anywhere, and attempts at violence. The officer testified that "Mr. Craw was extremely upset ... displaying violent tendencies." It became apparent "it was going to be a physical confrontation by the actions of Mr. Craw.... Mr. Craw was threatening the life of [the first officer], swinging, clenching his fist, reaching out to what appeared to be strangling--attempting to take the throat of [the first officer]."

The curtain closed on this ominous scene when plaintiff's landlord appeared and agreed with the police to take the keys to the truck. He gave further assurance that he would take care of plaintiff and not permit him to drive again that night. The second officer, who was the superior, convinced that plaintiff would not come to the station voluntarily for processing, and believing that he would probably be returned to his residence after processing in any event, accepted the landlord's assurance and the officers left. They believed this course of action to be the most salutary under the circumstances in order to avoid needless violence and possible injury to plaintiff, his landlord and to themselves.

Initially, the superior court concluded correctly that it had no jurisdiction under V.R.C.P. 75, the device by which plaintiff attempted to reach that court for a review of the district court's order. See Pfeil v. Rutland District Court, 147 Vt. 305, 306, 515 A.2d 1052, 1054 (1986). But following the lead of this Court in Pfeil, the superior court treated the appeal as a petition for extraordinary relief, and accepted jurisdiction on that basis. There was no objection to this procedure by either party, and we find no fault with the ruling. Nevertheless, we believe it is appropriate as a cautionary admonition to repeat our warning stated in Pfeil: "[O]ur holding here in no way guarantees persons charged with DUI the right to appeal from a district court's ruling in these matters." Id. at 308, 515 A.2d at 1055.

Departing from the procedural aspect of the hearing before the superior court, it is clear that, in reaching their respective but identical decisions, both the district court and the superior court relied on Stockwell v. District Court, 143 Vt. 45, 460 A.2d 466 (1983). In that case we held that, in the absence of an express statement by a DUI suspect declining to be tested, a refusal "may be implied from the totality of the surrounding facts and circumstances"; this necessarily includes the suspect's conduct. Id. at 50, 460 A.2d at 468. Similarly, the State argued below and before this Court that Stockwell should dictate the outcome in this case.

On the other hand, plaintiff argues...