In re D.B.

• Decision Date: 08 April 2022
• Docket Number: 21-AP-296
• Parties: In re D.B., Juvenile*
• Court: Vermont Supreme Court

In re D.B., Juvenile*

No. 21-AP-296

Supreme Court of Vermont

April 8, 2022

In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

APPEALED FROM: Superior Court, Bennington Unit, Family Division CASE NO. 21-JV-00897 Trial Judge: Kerry Ann McDonald-Cady

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

Juvenile D.B. appeals from an order of the family division adjudicating him delinquent for driving a motor vehicle while under the influence of alcohol (DUI) in violation of 23 V.S.A. § 1201(a)(2). We affirm.

The court made the following findings based on the evidence presented at the November 2021 merits hearing. Around midnight one evening in June 2021, an officer of the Bennington Police Department responded to a report of a car crash near the intersection of Gore and Burgess Roads in Bennington. When he arrived at the scene, the officer found a red Ford Ranger pickup truck "submerged in trees." No one was in the truck or in the immediate area. The officer observed that there were skid marks on an S curve in the road and the pavement was wet. Another officer who had responded to the call saw a truck pass by and recognized juvenile. Both officers went to a nearby chain-up area, where the first officer saw juvenile, juvenile's girlfriend, and a few other individuals standing around vehicles that were running.

Juvenile's girlfriend approached the officer and asked to speak privately. She told the officer that she was driving the Ford pickup truck when she lost control due to speed and road conditions and crashed the vehicle into the trees. She told the officer that the truck was hers and that juvenile was a passenger at the time of the crash.

The officer then spoke with juvenile. Juvenile repeatedly asked the officer what his girlfriend had said and whether she said she had been driving. He said that he was driving the truck at the time of the crash. He told the officer that he and his girlfriend had been "wheeling" at Sucker Pond and as they were returning, he lost control because of speed and the wet road.

Juvenile stated that he felt guilty for wrecking his girlfriend's truck because it meant a lot to her and he felt bad. He told the officer that his girlfriend had lied because juvenile was driving the truck at the time of the crash. Juvenile's girlfriend then came over and conceded to the officer that juvenile had been driving at the time of the crash.

While juvenile was speaking, the officer observed that his eyes were watery, and his speech was a bit mumbled. Juvenile had a lozenge in his mouth at the time. When the officer spoke to juvenile again later, after juvenile had finished the lozenge, he smelled of intoxicants. The officer asked juvenile to complete some field sobriety tests. Juvenile had difficulty maintaining his balance during the one-leg stand swaying and putting his foot down three times. While performing the walk-and-turn, he stepped out of line five times. Based on his observations, the officer believed that juvenile was intoxicated at the time of the crash and arrested him for DUI.

At the police station, juvenile became sick and vomited. After being advised of his rights, juvenile agreed to speak to the officer. He admitted to being "slightly" under the influence of alcohol while he was driving the vehicle.

At the hearing, juvenile's girlfriend conceded that juvenile had been drinking but stated that she had been driving. She testified that she lied to the officer when she said juvenile had been driving because she was stressed out and tired and did not want to argue with juvenile.

The court found that juvenile had been driving the truck at the time of the crash and that he was under the influence of alcohol at the time, as demonstrated by the officer's observations of his watery eyes, mumbled speech, and odor his poor performance on the field sobriety tests, and his admission to the officer that he was slightly under the influence of alcohol. The court noted that there was no evidence presented by either party to indicate that juvenile had consumed alcohol after the crash. The court concluded that juvenile's girlfriend was not credible in her testimony that she had been driving. Rather, it found that juvenile's girlfriend was attempting to protect juvenile whom she knew had been drinking, as she admitted to the officer on the night of the crash. The court therefore entered an adjudication of delinquency.

On appeal, juvenile challenges the sufficiency of the evidence to support the court's findings that he was operating the truck under the influence of alcohol at the time of the crash. At a juvenile delinquency proceeding, the State has "the burden of establishing beyond a reasonable doubt that the child has committed a delinquent act." 33 V.S.A. § 5229(b). Here, the State alleged that juvenile had violated 23 V.S.A. § 1201(a)(2), which makes it a crime for a person to "operate, attempt to operate, or be in actual physical control of any vehicle on a highway . . . when the person is under the influence of alcohol." "In assessing the sufficiency of the evidence, this Court will uphold a judgment unless no credible evidence supports it. We review the evidence in the light most favorable to the State." In re A.P., 2020 VT 86, ¶ 5, 213 Vt. 291 (quotation omitted).

Juvenile argues that the trial court improperly inferred his state of intoxication to be the same at the time of the crash as when he later spoke to the officer. He argues that the officer was unable to say how long after the accident he was dispatched to the scene, how long his search for the truck occupants took, and how long...