Gilman v. Commissioner of Motor Vehicles, 3

• Decision Date: 05 October 1990
• Docket Number: No. 3,C,No. 89-019,3,89-019
• Citation: 155 Vt. 251,583 A.2d 86
• Parties: . Supreme Court of Vermont
• Court: Vermont Supreme Court

Page 86

583 A.2d 86

155 Vt. 251

Douglas GILMAN v. COMMISSIONER OF MOTOR VEHICLES and Vermont District Court Unit No. 3, Caledonia Circuit.

No. 89-019.

Supreme Court of Vermont.

Oct. 5, 1990.

Vincent Illuzzi and Michael R. Loignon of Vincent Illuzzi Associates, Orleans, for petitioner-appellant.

Dale O. Gray, Caledonia County State's Atty., St. Johnsbury, and Jo-Ann Gross, Law Clerk, Dept. of State's Attys., Montpelier, for respondent-appellee.

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

ALLEN, Chief Justice.

The record contains ample support for the conclusion that defendant refused to submit to a breath test within the meaning of 23 V.S.A. § 1202. To effect a refusal under 23 V.S.A. § 1202(c), a person need only conduct himself in a manner which would lead a reasonable person in the trooper's position to believe that the person understood he was requested to submit to a breath test and manifested an unwillingness to do so. Stockwell v. District Court, 143 Vt. 45, 50, 460 A.2d 466, 469 (1983). A person need not show refusal by an express, affirmative statement. Id. at 50, 460 A.2d at 468. In the absence thereof, an officer may infer a refusal from the totality of the circumstances. Id.

The trooper informed defendant at the outset that he believed defendant had been operating a vehicle under the influence of intoxicating liquor and that he was required to ask defendant to give an evidentiary sample of his breath. The trooper then informed defendant of his rights under § 1202, including his right to consult an attorney at state expense. It is unnecessary to reach the issue of whether the trooper afforded defendant his right to counsel because, while defendant initially expressed a desire to contact a public defender, he later indicated a preference for Mr. Illuzzi. Defendant explained that he had "always done business" with him, could arrange to make payments for his services, and had no intention of calling any lawyer other than Mr. Illuzzi. The trial court found that after the defendant attempted to call Mr. Illuzzi he refused to make any calls to other attorneys, stating that "he had made his call, that he wanted Attorney Illuzzi and no others." This finding is amply supported by the testimony of the officer that defendant "said he didn't want to make any more calls. He didn't want to call any other attorney. He wanted Mr. Illuzzi."

The trooper knew that the lawyer defendant had sought to consult was not available and that contact within the statutory time period would not take place because defendant had left a message instructing the lawyer to contact him at his home. Defendant's stance that he would take the test only after consulting a lawyer whom he knew to be unavailable was tantamount to a refusal. The superior court's denial of the petition for extraordinary relief does not constitute an abuse of discretion.

Affirmed.

DOOLEY, Justice, dissenting.

In a world in which a large percentage of cases involving motor vehicle operation and alcohol are appealed, and many of these appeals lack a meritorious issue, it is easy to miss the wheat in what seems like an endless sea of chaff. In its brief affirmance, the majority has categorized this case as chaff. It does so, however, by characterizing the facts in a way that I do not believe is supported by the record and thereby omits any consideration of the main issue raised by the appellant and decided by the superior court. The central issue is difficult and, on balance, points to a reversal. Accordingly, I dissent.

The undisputed facts are that petitioner, Douglas Gilman, was stopped while driving in St. Johnsbury and was brought to the state police barracks for processing for DWI. Before asking petitioner to take a breath test, the arresting officer read him his rights from a processing form. When asked "Do you want a lawyer?," petitioner answered, "Yes." At that point, the officer went to a call list set up by the public defender's office for night DWI calls and called each of the seven lawyers on the list. None were home. The officer then handed the telephone book to petitioner and asked him if he wanted to call any lawyer from the book. Petitioner called lawyer Vince Illuzzi, who also didn't answer. Petitioner's testimony, not disputed by the officer, was that he could not afford a private lawyer but had been represented by attorney Illuzzi in the past and felt he could work out a payment arrangement. Petitioner then refused to call any other lawyers from the telephone book, and the officer asked him to take the test. Petitioner said he would not do so without a lawyer. It is this statement the majority finds to be a refusal.

The majority finds that we do not have to reach the question of whether there was a violation of petitioner's right to appointed counsel because "while defendant initially expressed a desire to contact a public defender," he abandoned that request in favor of an insistence on reaching lawyer Illuzzi. That conclusion is not supported by the record, and neither of the trial courts that have considered this case drew that conclusion. The undisputed facts are that the officer contacted all the public defender names, and on reaching no one, handed petitioner the telephone book to call private lawyers who clearly would have to be paid for their services. He did not give defendant the names of the lawyers on the public defender list. From the telephone book, petitioner was able to pursue...