McGarry v. Costello, 122-69
| Citation | 128 Vt. 234,260 A.2d 402 |
| Decision Date | 02 December 1969 |
| Docket Number | No. 122-69,122-69 |
| Parties | In re Petition of Michael J. McGARRY v. Edward J. COSTELLO, Judge of the District Court in Chittenden County. |
| Court | Vermont Supreme Court |
Donald E. O'Brien, Burlington, for petitioner.
Patrick J. Leahy, State's Atty., and Joseph E. McNeil, Burlington City Grand Juror, for respondent.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This is a petition for a writ of certiorari. The proceedings we are called upon to review resulted from the petitioner's refusal to submit to the testing procedures provided in motor vehicle statutes, commonly referred to as the 'implied consent law.' The question presented concerns 23 V.S.A. §§ 1188 and 1191.
§ 1188. Consent to blood test implied
Any person who operates or attempts to operate a motor vehicle upon a public highway in this state is deemed to have given his consent to submit to a chemical test of his blood or such other test as herein provided for the purpose of determining the alcoholic content of his blood whenever he is arrested or otherwise taken into custody for any offense involving his operation of a motor vehicle under the influence of intoxicating liquor or drugs, and the arresting officer has reasonable grounds to believe that the person was operating the motor vehicle under the influence of intoxicating liquor or drugs.
§ 1191. Refusal to submit to test
If the person so arrested refuses, on request, to submit to the test, it shall not be given. If the person is unconscious, or incapable of decision, it shall be deemed that his consent is given as provided in section 1188 of this title and that a blood test may be taken. If such person is charged with a violation of the motor vehicle laws and upon arraignment enters a plea of not guilty, the court at such arraignment shall hold a summary hearing, take evidence relating to the reasonableness of the arresting officer's belief that the respondent was operating the motor vehicle while under the influence of intoxicating liquor or drugs and upon the reasonableness of the respondent's refusal to submit to a test. Upon a finding by the court that the arresting officer had sufficient reason to believe that the respondent was so operating and that the respondent unreasonably refused to submit to a test, such respondent's operator's license or non-resident operating privilege or the privilege of an unlicensed operator to operate a motor vehicle shall be suspended for a period of six months and the respondent shall deliver his operator's license, if any, to the court and the court shall forward it forthwith to the commissioner of motor vehicles.
Although the writ does not issue as a matter of right, the resort to certiorari, to review questions of law arising in the course of the summary provided in § 1191, was held to be appropriate in State v. Laplaca, 126 Vt. 171, 174, 224 A.2d 911. We have examined the record presented with the petition to determine whether the request of the application to stay the order of the lower court, requiring surrender of the petitioner's license, should be granted. This is in accord with the procedure followed in West River Bridge Co. v. Dix, 16 Vt. 446, 449 ), 12 L.Ed. 535.
It appears from the record of the proceedings below that the petitioner was involved in a two car accident on a public thoroughfare in Burlington, shortly before midnight on June 20, 1969. The accident was investigated by Patrolman Michael Spernak of the Burlington Police Department. When the officer arrived, the petitioner was sitting in the right side of the front seat. The officer observed blood on his face. A bottle of vodka, which was nearly empty, and an unopened can of beer were on the floor.
The officer inquired of the petitioner concerning who was the driver of his vehicle. He replied he did not know. He later stated he was the operator. His wallet, containing operator's license and registration, was on the front seat beside him. The petitioner experienced difficulty in producing his identification papers. His speech was slow and distinct. His face was flushed and his eyes were bloodshot. No odor of alcohol was detected, but when asked if he had had anything to drink, the petitioner answered 'Yes,' stating he 'had a few.' The petitioner was soon taken by ambulance to the hospital for treatment of his injury. At that time the investigating officer was of the opinion that Mr. McGarry was under the influence of intoxicating liquor.
Officer Spernak later talked to Mr. McGarry in the presence of the latter's father at the hospital when he furnished them information required in the accident report. He again inquired if he had anything to drink and Mr. McGarry replied he 'had a couple.' The petitioner was informed of the provisions of the implied consent law, the consequences of a refusal to submit to a test and his right to an attorney. Upon arrest, the petitioner was asked to take the test. He refused.
Officer Spernak was the only witness called by the State. Against the officer's testimony, the respondent testified he suffered from loss of memory and was disoriented from the head injury he had received. He explained the vodka bottle had been in his car for more than two weeks and he had not taken any of its contents on the night in question. He testified he was not under the influence of liquor. Although he stated he did have something to drink, his remembrance and believe was that he did not have anything of an alcoholic nature.
Dr. Longstreth, who examined, treated and released Mr. McGarry at the hospital, testified the petitioner suffered a mild concussion. A laceration over the right eye was superficial, but bled considerably. The doctor did not recall whether the patient's eyes were bloodshot. If his face was flushed, the doctor did not notice it. From questioning the petitioner, he learned he experienced a partial loss of memory, some confusion and disorientation.
The respondent offered to prove through Dr. Longstreth that, as a result of his examination of the petitioner, he was of the opinion the petitioner was not under the influence of liquor. The petitioner further offered other witnesses who had observed Mr. McGarry before, at the scene and after the accident, who would testify that, in their several opinions, Mr. McGarry was not under the influence of intoxicants. These offers were excluded.
On the record, as thus constituted, the district court found the arresting officer had sufficient reason to believe the petitioner was operating while under the influence of intoxicating liquor. The court further determined that the petitioner unreasonably refused to submit...
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...or reject the uncertain opinion of a layman derived from observation of external symptoms of intoxication." McGarry v. Costello, 128 Vt. 234, 240, 260 A.2d 402, 405 (1969). In order to effectuate this intent, the legislature enacted 23 V.S.A. § 1202 in 1970. The statute was subsequently ame......
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