State v. Berini, 96-549

Decision Date28 July 1997
Docket NumberNo. 96-549,96-549
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Christopher M. BERINI.

Before AMESTOY, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ENTRY ORDER

The State appeals an order of the Orange District Court suppressing defendant's refusal to submit to a breath test because he was not afforded an opportunity to consult with an attorney. We affirm.

Defendant was arrested for driving under the influence. The arresting officer informed defendant of his right to speak with an attorney before deciding whether to submit to a breath test. Defendant refused to provide a sample without the advice of an attorney. Despite numerous attempts, the officer was unable to contact defendant's lawyer or a public defender. After approximately one hour, the officer asked defendant to provide a sample, but defendant declined to submit without consulting an attorney. The officer concluded that this constituted a refusal.

Defendant moved to suppress the refusal on the ground that he was denied the opportunity to consult with counsel. Under the authority of State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991), the trial court granted the suppression motion. The State thereupon moved for permission to take an interlocutory appeal. V.R.A.P. 5(b). The court granted the motion.

Vermont's implied-consent statute gives a person from whom a breath test has been requested by a law enforcement officer a right to consult an attorney prior to deciding whether to take the test. State v. Fuller, 163 Vt. 523, 526, 660 A.2d 302, 304 (1995); 23 V.S.A. § 1202(c). In Garvey we held that a defendant's license may not be suspended where the "refusal is premised on the state's inability to provide him with a consultation with a lawyer before he was required to make up his mind whether to take the test." 157 Vt. at 106, 595 A.2d at 268. We specifically rejected the State's contention that the statute authorized the officer to record a refusal if, after thirty minutes, a lawyer could not be found. Id.

Garvey plainly controls in this case. Although the State invites the Court to reconsider and reverse Garvey, it offers no new evidence or persuasive rationale to demonstrate that the case was wrongly decided. While not slavish adherents to stare decisis, see Cooperative Fire Ins. Ass'n v. White Caps, Inc., 166 Vt. 355, ----, 694 A.2d 34, 35 (1997), we generally require more than mere disagreement to overturn a decision, particularly one of such recent vintage.

Affirmed.

GIBSON, Justice, dissenting.

I...

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11 cases
  • State v. Reitter, 98-0915
    • United States
    • Wisconsin Supreme Court
    • June 29, 1999
    ...Wisconsin, however, Vermont's statute gives persons the right to counsel before deciding whether to take the test. See State v. Berini, 701 A.2d 1055 (Vt.1997). Similarly, Missouri's statute grants OWI defendants 20 minutes in which to contact an attorney, and failure to submit to the chemi......
  • State v. Cleary, 01-289.
    • United States
    • Vermont Supreme Court
    • February 7, 2003
    ...find nothing in Justice Dooley's arguments that convinces us to overrule our recent precedent on this point. See State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1055 (1997) (mem.) ("While not slavish adherents to stare decisis, ... we generally require more than mere disagreement to overt......
  • State v. Lee, 07-334.
    • United States
    • Vermont Supreme Court
    • October 10, 2008
    ...decisions after Mecier, even those that reached a different result, are grounds to overturn that decision. See State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.) ("While not slavish adherents to stare decisis, we generally require more than mere disagreement to overturn a ......
  • Chittenden v. Waterbury Ctr. Comm. Church
    • United States
    • Vermont Supreme Court
    • December 11, 1998
    ...applied to such uses despite the statutory protection. Although we are "not slavish adherents to stare decisis," State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997), we do not "lightly overrule settled law especially where it involves construction of a statute which the legislatur......
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