State v. Aiken

• Decision Date: 07 August 2015
• Docket Number: No. 14–410.,14–410.
• Citation: 129 A.3d 87
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Paul AIKEN.

129 A.3d 87

STATE of Vermont

v.Paul AIKEN.

No. 14–410.

Supreme Court of Vermont.

Aug. 7, 2015.

Motion for Reargument Denied Aug. 31, 2015.

H. Dickson Corbett, Orange County Deputy State's Attorney, Chelsea, for Plaintiff–Appellee.

Kyle L. Hatt of Sleigh Law, P.C., St. Johnsbury, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

DOOLEY, J.

¶ 1. Defendant appeals the decision of the Orange Superior Court, Criminal Division denying his motion to suppress his refusal to submit to an evidentiary breath test on the ground that he was denied his right to counsel under 23 V.S.A. § 1202. We affirm.

¶ 2. The following facts are undisputed. On November 12, 2013, shortly before midnight, defendant was pulled over for speeding. The police sergeant observed that defendant's eyes were bloodshot and watery, and he detected a faint odor of alcohol coming from inside defendant's vehicle. Defendant admitted to consuming alcohol prior to operating the vehicle, and preliminary breath and field sobriety tests indicated that defendant's blood-alcohol content was above the legal limit. Defendant was detained and taken to the police barracks for processing. During processing, the sergeant read defendant his rights under Vermont's implied-consent law, 23 V.S.A. § 1202, which includes defendant's right to consult with a public defender before deciding whether to submit to an evidentiary breath test, id. § 1202(c), (g). Defendant requested to speak to an attorney. The sergeant attempted to reach the on-call public defender but was unable to reach him. He left a voicemail asking the attorney to contact the police barracks, but the attorney never called back. The sergeant then called the back-up public defender and got him on the line. He handed the phone over to defendant, left the room, and shut off the audio-recording equipment, leaving defendant to speak with the attorney in private.

¶ 3. The following is defendant's account of his conversation with the public defender.

The two exchanged pleasantries, but before any legal consultation, the attorney asked defendant if he would "hold on," and the conversation stopped. Defendant waited approximately ten minutes for the attorney to return and then called to the sergeant for help. Although audio-recording equipment had been shut off in the processing room, a video feed from the room appears to show defendant not talking for the duration of the ten minutes.

¶ 4. After defendant explained to the sergeant that he had been on hold for ten minutes, the sergeant again attempted to call both public defenders. There was no answer at any of the numbers he called for the on-call attorney, and the back-up attorney's line was busy. The sergeant told defendant that he had ten more minutes and that if neither public defender returned his call he would have to decide whether or not to take the evidentiary breath test regardless of obtaining legal consultation. After the thirty minutes elapsed, the sergeant asked defendant if he would submit to the breath test. Defendant refused to answer, and the sergeant understood this as a refusal to take the test.

¶ 5. Defendant was charged with driving under the influence (DUI) pursuant to 23 V.S.A. § 1201(a)(2). He moved to suppress the evidence of his refusal to take the evidentiary test "on the ground that he suffered a complete denial of his right to counsel under 23 V.S.A. §§ 1202(c), (g)." The trial court, in a brief entry order, denied defendant's motion, stating, "Defendant began communication with lawyer and at that point lawyer was no longer an agent of the state and action of lawyer placing client on hold is not state action." The court further explained, "The State's obligations under 23 V.S.A. § 1202(c) were satisfied when Defendant made contact with public defender and began speaking with public defender." Defendant moved for the trial court to reconsider, arguing that the court's "reasoning in denying Defendant's motions wars with unambiguous Vermont Supreme Court precedent in this area of the law." The court again denied defendant's motion, for the reasons stated in its original order. This appeal followed.

¶ 6. Defendant renews on appeal his argument that our case law holding that the defender general's office has a statutory obligation to provide twenty-four-hour legal consultation to DUI detainees controls here because the public defender failed to provide any advice. In response, the State puts forth the rationale of the trial court that, once the public defender was on the phone with defendant, he no longer was an agent of the state and the statutory obligation to provide consultation was satisfied. Although we affirm the trial court, we do not agree with the position of either party. Rather, we conclude that an attorney-client relationship formed when defendant spoke with the public defender and that such communication cannot form the basis of determining a § 1202(g) violation.

¶ 7. Generally, when reviewing the trial court's denial of a motion to suppress, we defer to the court's factual findings and review its legal conclusions de novo. State v. Grenier, 2014 VT 121, ¶ 16, 198 Vt. 55, 110 A.3d 291. In this case, however, the trial court did not hold a hearing or make any factual findings but instead assumed as true the allegations in defendant's motion. We therefore apply this same standard on review and assume defendant's allegations to be true. Cf. Skaskiw v. Vt. Agency of Agric., 2014 VT 133, ¶ 6, 198 Vt. 187, 112 A.3d 1277 (reviewing motion to dismiss under same standard as trial court and assuming as true all facts pleaded in complaint).

¶ 8. We start with the statutory provisions at issue. In relevant part, Vermont's implied-consent statute provides:

A person who is requested by a law enforcement officer to submit to an evidentiary test or tests has a right as herein limited to consult an attorney before deciding whether or not to submit to such a test or tests. The person must decide whether or not to submit to the evidentiary test or tests within a reasonable time and no later than 30 minutes from the time of the initial attempt to contact the attorney. The person must make a decision about whether or not to submit to the test or tests at the expiration of 30 minutes regardless of whether a consultation took place.

23 V.S.A. § 1202(c). The statute further requires the defender general's office to "provide statewide 24–hour coverage seven days a week to assure that adequate legal services are available to persons entitled to consult an attorney under this section." Id. § 1202(g).

¶ 9. The State has two obligations under § 1202 :(1) the law enforcement officer must notify a detainee of his right to counsel and make a reasonable effort to contact a public defender at the appropriate time during DUI processing; and (2) the defender general's office must provide detainees with twenty-four-hour access to legal counsel. Id.; State v. Velez, 2003 VT 1, ¶ 9, 175 Vt. 23, 819 A.2d 712 ; see also State v. West, 151 Vt. 140, 144–45, 557 A.2d 873, 876 (1988) ("The statutory mandate is fulfilled when reasonable efforts are made to allow an arrestee to consult privately with counsel."); State v. Gilman, 173 Vt. 110, 117–18, 787 A.2d 1238, 1244 (2001) (holding that suppression remedy is available to detainee when defender general's office fails to comply with § 1202(g) ). We have several precedents interpreting the rights and obligations under § 1202(c) and (g). These cases generally fall into two lines: (1) those that address the sufficiency of a detainee's access to counsel; and (2) those that address the content of a detainee's legal consultation. In general, we have found violations of the statutory scheme in the first line of cases but not the second.

¶ 10. With respect to the sufficiency of a detainee's access to counsel, we have held that a law enforcement officer violates § 1202(c)'s guarantee that a detainee have access to counsel when the officer fails to adequately inform the detainee of the statutory right to counsel, State v. Duff, 136 Vt. 537, 539–40, 394 A.2d 1145, 1146 (1978) ; does not attempt to call available public defenders, State v. Madonna, 169 Vt. 98, 101, 726 A.2d 498, 500 (1999) ; or fails to give the detainee reasonable privacy during the consultation, State v. Lombard, 146 Vt. 411, 415, 505 A.2d 1182, 1184–85 (1985). We also have held that the defender general violates § 1202(g)'s requirement that it provide twenty-four-hour public defender services when no public defender can be reached by phone, Gilman, 173 Vt. at 117–18, 787 A.2d at 1244, or the public defender refuses to speak to the detainee due to the officer's refusal to run a records check on the detainee, Velez, 2003 VT 1, ¶¶ 8–10, 819 A.2d 712. As these cases demonstrate, we " ‘will not tolerate deliberate efforts by law enforcement personal to thwart an arrestee's meaningful opportunity to consult with counsel,’ " id. ¶ 10 (quoting State v. Fredette, 167 Vt. 586, 587, 705 A.2d 548, 549–50 (1997) (mem.)), "[n]or will we tolerate deliberate refusals by public defenders to provide detainees with an opportunity for consultation." id.

¶ 11. On the other hand, we generally have rejected claims of a statutory violation based upon the content—or lack of content—of the consultation. For example, in State v. Ironside, 167 Vt. 628, 629–30, 711 A.2d 663, 664–65 (1998) (mem.), we found no statutory violation where the public defender briefly spoke in private with the detainee but refused to give advice based on the detainee's representation of his prior DUI convictions. We reasoned that "the police officer afforded defendant a private telephone consultation with an attorney, and thus the statute was satisfied; the attorney's choice to withhold advice, in the belief that defendant's recollection of his prior record was not reliable, does not negate this fact." Id. We found this result consistent with the requirement that a detainee be afforded...