State v. Baldwin, No. 310-80

Docket NºNo. 310-80
Citation438 A.2d 1135, 140 Vt. 501
Case DateDecember 10, 1981
CourtUnited States State Supreme Court of Vermont

Page 1135

438 A.2d 1135
140 Vt. 501
STATE of Vermont
v.
William B. BALDWIN.
No. 310-80.
Supreme Court of Vermont.
Dec. 10, 1981.

Page 1137

[140 Vt. 505] Mark J. Keller, Chittenden County State's Atty., and James R. Crucitti and Jeffrey Cohen, Deputy State's Attys., Burlington, for plaintiff.

[140 Vt. 506] James M. Farrell and Joel W. Page of J.M. Farrell Associates, Burlington, for defendant.

Before [140 Vt. 501] BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

[140 Vt. 506] PECK, Justice.

Defendant William Baldwin was convicted after jury trial of operating a motor vehicle on a public highway in the Town of Colchester while under the influence of intoxicating liquor contrary to the provisions of 23 V.S.A. § 1201(a)(2). He appealed his conviction to this Court; we affirm.

A review of the record on appeal shows that on the evening of December 13, 1979, commencing at approximately ten o'clock, an officer of the Colchester Police Department, acting on information from a Burlington officer, followed a 1973 Mercury Montego along Heineberg Drive in Colchester, over the Heineberg Bridge and into the City of Burlington on Plattsburg Avenue, a total distance of about a quarter of a mile. The manner in which the Mercury ahead of him was being operated aroused the officer's suspicion. He testified that it crossed the highway center line "numerous times," there was a near collision with the bridge structure, and frequent changes in the rate of speed occurred; in the words of his testimony, "(T)he manner of operation was, as far as the travel speed, was accelerate and then slow down, accelerate and then slow down...."

Based on his observations the officer finally halted the vehicle at 10:08 P.M. as it turned into North Avenue from Plattsburg Avenue, also in Burlington, where he discovered the driver and sole occupant of the car to be the defendant. The officer testified that defendant's speech was slurred, there was a strong odor of intoxicants on his breath, and his eyes were bloodshot and watery. When defendant got out of his car the officer observed that he swayed noticeably. When asked for his driver's license, he had difficulty locating it in his wallet, and his performance of the routine dexterity tests was slow and inaccurate. At trial the officer was asked if, based on those observations, he had formed an opinion as to the condition of defendant. He responded, "Yes, I felt he was moderately impaired."

Page 1138

The officer requested defendant to submit to a breath test and he agreed. However, when asked to accompany the officer to the Colchester Police Department for that purpose, he objected, indicating he "did not want to go" to Colchester, but [140 Vt. 507] eventually complied with the request, even though two Burlington police officers had by that time arrived at the scene. Notwithstanding vigorous protestations of compulsion in his brief, we can determine only that in the first instance he "did not want to go" to Colchester but thereafter he did so, and the breath test was administered there at 11:05 P.M. after he had consulted by phone with his attorney. The results of the test indicated 0.24 per cent blood alcohol content at the time it was administered. Finally the officer testified that he had defendant under continual observation from the time the vehicle was stopped until the breath test was administered, and during that period defendant did not drink any alcoholic beverage.

In March of 1980, defendant filed pretrial motions which were denied by a judge who did not thereafter preside at the trial. These motions were three in number, a motion to dismiss for lack of a prima facie case, and two motions to suppress evidence, particularly the results of the breath test and the opinion based thereon. Both the two latter motions were essentially on the same grounds: the postulate that the Colchester Police Department, in the person of its officer, had no authority or jurisdiction to arrest defendant in, or remove him from, the territorial jurisdiction of the City of Burlington Police Department.

These motions were renewed at the time of trial, and during the course of the trial, generally in the form of objections as the State sought to adduce specific matters of evidence. In response the trial judge denied or overruled the protests, advising defendant in some instances that the issues raised had already been disposed of at the pretrial level and he was bound by these rulings, or that he was not going to reverse the earlier rulings of the judge who made them.

Defendant objected also to testimony by the State's expert witness that in his judgment, given a blood alcohol content of 0.24 as shown by the breath test, the defendant would have been impaired at the time of operation. The objections went both to the expert's qualifications, and to the speculative or conjectural nature of the opinion. The objections were overruled.

I.

On appeal defendant claims error in the court's denial of his motions to suppress evidence. He urges strenuously that the [140 Vt. 508] pretrial court's conclusions, adopted inferentially by the trial judge, that the officer had the right, under the doctrine of fresh pursuit as defined by 23 V.S.A. § 4(12), to stop defendant outside of his own territorial jurisdiction and subsequently to arrest him there and return him to Colchester, was error. Assuming this to be so, he argues that the breath test was illegally obtained evidence and should have been suppressed, together with the expert testimony based thereon, as a violation of the unauthorized search and seizure clause of the Fourth Amendment to the Federal Constitution. State v. Barr, 126 Vt. 112, 118, 223 A.2d 462, 467 (1966).

Defendant contends that the common law doctrine of fresh pursuit, with he claims further still controls in this state, applies only to felonies. Accordingly, he argues, the offense being a misdemeanor, a police officer of the Town of Colchester had no authority to take any action in the City of Burlington, or transport him back into Colchester.

We do not find that this Court has ever considered the extra-territorial powers of an enforcement officer under the common law of fresh pursuit, although an early case, Bromley v. Hutchins, 8 Vt. 194 (1836), skirts the question in discussing the powers of a sheriff from another state to pursue into Vermont and recapture here a prisoner who had escaped from his custody on civil process. But its application to felonies only is not everywhere recognized:

Page 1139

There is another common law doctrine of fresh pursuit whereby a peace officer may arrest, without a warrant, for misdemeanors committed in his presence within a reasonable time thereafter. The fresh pursuit affects only the reasonableness of the lapse of time between the commission of the offense and the arrest therefor.

Gattus v. State, 204 Md. 589, 600-01, 105 A.2d 661, 666 (1954).

It appears that the common law, like its statutory in-laws, is always subject to judicial interpretation. It is, however, unnecessary to define here the limits of common law fresh pursuit in Vermont. Defendant asserts the doctrine has not been modified by statute in this state notwithstanding the definitional provision of 23 V.S.A. § 4(12), which reads:

"Fresh pursuit" as used in this chapter includes fresh pursuit as defined by the common law, and also the pursuit[140 Vt. 509] of a suspected violator of the criminal laws or other laws of this state, for which he is, or might be, subject to arrest, by an enforcement officer. Fresh pursuit as used in this chapter is not necessarily instant pursuit, but pursuit without unreasonable delay.

We disagree with defendant as to the effect of this statutory subdivision, and hold that by virtue of its provisions, if not otherwise under common law, the doctrine of fresh pursuit includes the circumstances of this case.

In urging his position, defendant points to the phrase in § 4(12), which reads, "as used in this chapter," to support the proposition that this definition of fresh pursuit has no application outside of the statutory chapter in which it appears; 23 V.S.A. Chapter 1. This argument might be persuasive or even dispositive were it not for the dilemma it creates. Similar language in other enactments generally does limit the scope of a statutory definition, speaking the legislative intent clearly. In this particular case, however, if the definition of fresh pursuit is limited to Chapter 1, it has no application at all, and thus becomes meaningless. Nowhere else in the chapter does the defined phrase appear, nor do we...

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53 practice notes
  • Rutz v. Essex Junction Prudential Committee, No. 82-087
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 27, 1983
    ...§ 1162, even standing alone, is neither necessary nor compelled[142 Vt. 405] by the literal or plain meaning rule. See State v. Baldwin, 140 Vt. 501, 509-10, 438 A.2d 1135, 1139 (1981). It is a construction which isolates this statute from others standing with it in pari materia. We have he......
  • Clymer v. Webster, No. 88-631
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 7, 1991
    ...applied with great caution, is not of universal application, and is not conclusive as to the meaning of a statute"); cf. State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135, 1140 (1981) ("Rules of construction are not laws, hard and inflexible, which must be applied in a given situation simpl......
  • State v. Hunt, No. 85-235
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 21, 1988
    ...venue; therefore, we hold that if there was error here, the doctrine of harmless error applies. 1 See V.R.Cr.P. 52(a); State v. Baldwin, 140 Vt. 501, 514, 438 A.2d 1135, 1142 Defendant argues that he was harmed by the venue change in a number of ways, including: (1) the change to Lamoille C......
  • Davis v. Liberty Mut. Ins. Co., No. 2:96-CV-158.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • August 14, 1998
    ...to plain and ordinary meanings are ... only starting points on the path to the objective of legislative intent." State v. Baldwin, 140 Vt. 501, 510, 438 A.2d 1135, 1140 (1981)(stating that rules of statutory interpretation are not laws, but tools to be used to determine the legislative inte......
  • Request a trial to view additional results
53 cases
  • Rutz v. Essex Junction Prudential Committee, No. 82-087
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 27, 1983
    ...§ 1162, even standing alone, is neither necessary nor compelled[142 Vt. 405] by the literal or plain meaning rule. See State v. Baldwin, 140 Vt. 501, 509-10, 438 A.2d 1135, 1139 (1981). It is a construction which isolates this statute from others standing with it in pari materia. We have he......
  • Clymer v. Webster, No. 88-631
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 7, 1991
    ...applied with great caution, is not of universal application, and is not conclusive as to the meaning of a statute"); cf. State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135, 1140 (1981) ("Rules of construction are not laws, hard and inflexible, which must be applied in a given situation simpl......
  • State v. Hunt, No. 85-235
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 21, 1988
    ...venue; therefore, we hold that if there was error here, the doctrine of harmless error applies. 1 See V.R.Cr.P. 52(a); State v. Baldwin, 140 Vt. 501, 514, 438 A.2d 1135, 1142 Defendant argues that he was harmed by the venue change in a number of ways, including: (1) the change to Lamoille C......
  • Davis v. Liberty Mut. Ins. Co., No. 2:96-CV-158.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • August 14, 1998
    ...to plain and ordinary meanings are ... only starting points on the path to the objective of legislative intent." State v. Baldwin, 140 Vt. 501, 510, 438 A.2d 1135, 1140 (1981)(stating that rules of statutory interpretation are not laws, but tools to be used to determine the legislative inte......
  • Request a trial to view additional results

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