State v. Bonvie

• Citation: 2007 VT 82,936 A.2d 1291
• Decision Date: 24 August 2007
• Docket Number: No. 06-096.,No. 05-560.,05-560.,06-096.
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Christopher BONVIE. State of Vermont v. Adam Gilbeau.

936 A.2d 1291

2007 VT 82

STATE of Vermont v. Christopher BONVIE.

State of Vermont v. Adam Gilbeau.

No. 05-560.

No. 06-096.

Supreme Court of Vermont.

August 24, 2007.

Robert Butterfield, Caledonia County State's Attorney, St. Johnsbury, for Plaintiff-Appellant (05-560).

Stuart G. Schurr, Department of State's Attorney, Montpelier, for Plaintiff-Appellant (06-096).

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for Defendant-Appellee (05-560).

William E. Kraham of Weber, Perra & Munzing, P.C., Brattleboro, for Defendant-Appellee (06-096.).

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. DOOLEY, J.

Defendants, Christopher Bonvie and Adam Gilbeau, were separately arrested for driving under the influence (DUI). Each man received a citation for "DUI/Refusal" based on the arresting officer's determination that he had refused the test. In each defendant's license-suspension hearing, the district court disagreed, concluding that defendant had not refused, or even if he had, his subsequent request to take the test cured his initial refusal. We consolidate these substantially identical appeals by the State and affirm. We hold that subsequent, good-faith consent to take a breathalyzer test negates an earlier refusal if the consent is given within the statutory thirty-minute window to contact an attorney that 23 V.S.A. § 1202(c) provides, subject to the factors outlined in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276, 1280 (1984), discussed herein.

¶ 2. The stories of the two arrests are largely the same. Defendant Bonvie, age nineteen at the time, was stopped for failing to obey a stop sign. Based on roadside observations, the arresting officer concluded that he had probable cause to believe defendant was driving under the influence of alcohol and transported him to the police station for processing. The officer read him his rights regarding the breathalyzer test, including the provision that his privilege to drive could be suspended for at least six months if he refused to take the test. At defendant's request, the officer contacted a lawyer, and when defendant's conversation with the lawyer concluded, the officer returned to the room and asked if defendant would submit to the test. Defendant responded that his lawyer told him not to answer any questions.

¶ 3. The following exchange ensued— The officer: "Well, are you going to provide a sample of your breath?" Defendant Bonvie: "I guess no." The officer: "Is that a no?" Defendant: "No." The officer concluded that defendant had declined to take the test and handed him his civil-suspension paperwork. Upon looking at it, defendant asked why his license would be suspended for six months, and the officer explained it was because he had declined to take the test. At that point defendant asked if he could take the test, and the officer refused. The trial court found, and the State does not contest, that just under thirty minutes elapsed between the initial attempt to contact an attorney and defendant's request to take the test.

¶ 4. Defendant Gilbeau was approached by an officer who saw smoke and tire marks coming from his parked vehicle. The vehicle was still running, and its two right tires were lodged on the curb in front of a pub. The officer informed defendant of his rights regarding the breath test; defendant chose not to speak with an attorney. When asked if he would submit to a test, defendant said "no." When defendant saw the paperwork citing him for "DUI/Refusal," however, he told the officer that he misunderstood and explained that he thought he was being asked to agree that the breath test could be used as evidence against him in court. Although he would not agree to that, he stated that he would submit a sample of his breath for an evidentiary test. The officer refused to give him the test. Defendant testified at his civil suspension hearing that "immediately" after realizing the officer believed he had declined the test, he asked to take it, but the officer refused.¹

¶ 5. In each case, the district court noted that defendant had been "cooperative and polite throughout the processing." Each court concluded that a defendant's subsequent request to take a breathalyzer test may cure his initial refusal if he changes his mind within a reasonable time and if the State is not unreasonably burdened by the request. Specifically, the Caledonia District Court, Judge Davenport presiding, held that defendant Bonvie had not "refused" because he subsequently requested to take the test within the thirty minutes provided by statute. See 23 V.S.A. § 1202(c) ("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 Windham District Court, Judge Hayes presiding, did not expressly address whether defendant Gilbeau had "refused" to take the test, but instead adopted the five-part test of the Kansas Supreme Court that later consent to evidentiary testing cures an initial refusal if made:

(1) within a very short and reasonable time after the prior first refusal;

(2) when a test administered upon the subsequent consent would still be accurate;

(3) when testing equipment is still readily available;

(4) when honoring the request will result in no substantial inconvenience or expense to the police; and

(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

Standish, 683 P.2d at 1280. The court found that all five factors were met in Gilbeau's case, and there was no allegation that defendant Gilbeau's request to take the test was made more than thirty minutes after he was informed of his right to consult with counsel. Both judges concluded that the State had not met its burden of showing a refusal, and thus entered judgment for defendant at the civil suspension hearing. Judge Hayes held that all evidence of defendant Gilbeau's "refusal" would be suppressed at trial. The State appealed.

¶ 6. Whether, and in what circumstances, a defendant may cure an initial refusal to take a chemical test is a question of law that we review de novo under our implied-consent statute. See Wright v. Bradley, 2006 VT 100, ¶ 6, 180 Vt. ___, 910 A.2d 893 ("Issues of statutory interpretation are subject to de novo review."). We begin with the relevant Vermont authority, but because our prior decisions do not resolve the matter conclusively, we proceed to examine the holdings of courts in other jurisdictions that have addressed the issue.

¶ 7. We look first to the statute. Section 1202 of Title 23 concerns "consent to taking of tests to determine blood alcohol content" generally. Subsection (a)(1), Vermont's "implied consent" law, states that the driver or person "in actual physical control of any vehicle on a highway in this state is deemed to have given consent to an evidentiary test of [their] breath for the purpose of determining the person's alcohol concentration or the presence of other drug in the blood." Refusal to take the test when an officer has "reasonable grounds to believe" the operator is in violation of § 1201 is sanctioned by an automatic six-month suspension of the operator's license, 23 V.S.A. § 1205(a), and by making the refusal admissible as evidence of guilt in a criminal proceeding, § 1202(b). Accordingly, the statute further requires that operators receive a series of warnings upon being asked to take the test, including a warning that refusal will result in a six-month license suspension, id. § 1202(d)(2), that evidence of the refusal is admissible in a criminal proceeding, id. § 1202(d)(6), and that the individual has the right to consult with an attorney before deciding whether to take the test. Id. § 1202(d)(4). The operator must decide whether to take the test "within a reasonable time and no later than 30 minutes from the time of the initial attempt to contact the attorney . . . regardless of whether a consultation took place." Id. § 1202(c).²

¶ 8. We agree with the State that the plain language of the above provisions does not necessarily afford an individual the right to "change his mind" about taking a breath test within the thirty-minute window. On the other hand, nothing in the statute expressly precludes later consent after an initial refusal. Here, we are mindful of our repeated conclusion that § 1202(c) "evidences the [L]egislature's `concern that any refusal to be tested [shall] not be lightly decided, by providing for counsel and for time for reflection.'" State v. Kozel, 146 Vt. 534, 538, 505 A.2d 1221, 1223 (1986) (quoting State v. Carmody, 140 Vt. 631, 636, 442 A.2d 1292, 1295 (1982)). We have also recognized the Legislature's general encouragement of breath tests through its conditioning of motor-vehicle licenses on an operator's implied consent to take such tests. Veilleux v. Springer, 131 Vt. 33, 39, 300 A.2d 620, 624 (1973) (explaining legislative encouragement of "the availability of scientific evidence" through implied consent law). More broadly, in concluding under a previous version of the implied-consent law that individuals must be informed of their right to consult with an attorney before deciding whether to take the test, we recognized the many criminal and civil ramifications of this decision, and held that such a "complicated decision" should be made with the option of receiving the advice of counsel, or else not be binding. See Duff, 136 Vt. at 539-40, 394 A.2d at 1146. In doing so, we construed the statute liberally "in accordance with the nature of the right it affords." Id. at 540, 394 A.2d at 1146.

¶ 9. We have dealt at least three times before with DUI defendants who responded ambiguously to requests to take a breath test. In State v. Benware, the question was whether the defendant had refused the test when he offered to take it after the...