State v. Brean, 197-76

Decision Date04 April 1978
Docket NumberNo. 197-76,197-76
Citation136 Vt. 147,385 A.2d 1085
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Michael A. BREAN.

Gregory W. McNaughton, Washington County State's Atty., Montpelier, for plaintiff.

Cheney, Brock & Sidel, Montpelier, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

Defendant-appellant was convicted, upon an information amended during trial, of violating 23 V.S.A. § 1201(a)(2), operating a motor vehicle under the influence of intoxicating liquor. Defendant appeals that conviction, claiming: (1) that the trial court erred in permitting the State, after the close of the State's case, to amend the information; and (2) that 23 V.S.A. § 1205(a), which makes a defendant's refusal to submit to a chemical test admissible in evidence in a criminal proceeding, violates his privilege against self-incrimination.

The information brought against defendant initially charged "(t)hat Michael A. Brean, of Cornwall Brdg., Conn., in the State of Connecticut, County of ______, on the 12th day of December, 1975, at Montpelier in Territorial Unit No. 5, did then and there operate a vehicle, to wit, a 1974 Chevrolet Blazer bearing Connecticut registration 4056GL, on and along a public highway, to wit, River Street, while under the influence of intoxicating liquor, in violation of 23 V.S.A. 1201(a)(2)." At the close of the State's case, defendant moved to dismiss on the ground that the information alleged the offense occurred in the State of Connecticut rather than in the State of Vermont. Over defendant's objection, the trial court permitted the prosecutor to amend the information by crossing out the word "Connecticut" and replacing it with the word "Vermont," and by inserting the word "Washington" in the blank space after "County of." Defendant asserts here that the lower court should not have permitted the information to be amended at the close of the State's case. The State argues, however, that the amendment which occurred in this case is precisely that contemplated by V.R.Cr.P. 7(d). We agree.

Under V.R.Cr.P. 7(d), the trial court may permit an information to be amended at any time after trial has commenced and before verdict for any purpose "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." The State's information, prior to amendment, clearly informed the defendant of the offense with which he was charged, driving under the influence of intoxicating liquor in violation of 23 V.S.A. § 1201(a)(2). The permitted amendment did not charge an additional or different offense; both before and after amendment, the nature of the offense remained exactly the same. Defendant does not contend that his substantial rights were prejudiced by the amendment, and we can find no prejudice from a review of the record. The information as originally drawn informed defendant that the offense occurred "on the 12th day of December, 1975, at Montpelier in Territorial Unit No. 5 . . . on and along a public highway, to wit, River Street . . . ." Defendant had deposed the arresting officer prior to trial, and had pursued other discovery options. The officer's affidavit of probable cause set forth that the offense occurred in Vermont. Defendant obviously understood when and where the alleged offense took place. That defendant was not "surprised" by the amendment is evidenced, in part, by the fact that he made no motion for continuance at the time the motion to amend was granted. Having in mind that our Criminal Rules are designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay, the trial judge did not abuse his discretion in allowing the amendment. V.R.Cr.P. 2; State v. Christman, 135 Vt. 59, 370 A.2d 624 (1977).

Defendant's second claim of error involves the constitutionality of 23 V.S.A. § 1205(a), which provides for the admission in evidence of an individual's refusal to submit to a chemical test. A Montpelier police officer, suspecting that defendant was driving under the influence of intoxicating liquor, stopped defendant's car. After several preliminary tests, the officer decided to administer a breath test to defendant. He read to defendant the State's "implied consent form," a form read to individuals preparatory to a request that they submit to a chemical test of their blood or breath to determine its alcoholic content. The form explains the State's implied consent law, repeating the language of 23 V.S.A. § 1205(a):

If you refuse to submit to a chemical test, it shall not be given, but such refusal may be introduced as evidence in a criminal proceeding.

Following this explanation, defendant consented to take the breath test. At trial, the results of the breath test were admitted into evidence over defendant's objection.

Defendant contends the portion of 23 V.S.A. § 1205(a) that authorizes admission in evidence of a refusal to take a chemical breath test is a violation of his privilege against self-incrimination, as secured by the Fifth Amendment of the United States Constitution and Chapter I, Article 10 of the Vermont Constitution. Since defendant actually consented to take the breath test, no refusal was ever admitted into evidence. Defendant argues, however, that the giving of erroneous advice in order to induce his consent deprives him of due process of law.

The vitality of defendant's due process argument rests upon the soundness of his initial self-incrimination claim. We have no doubt that the giving of constitutionally erroneous advice in this setting by an officer of the State, which advice forms a basis for the individual's crucial decision, would vitiate any purported consent. Cf. State v. Welch, 135 Vt. ---, 376 A.2d 351 (1977). We do not agree, however, with defendant's premise that the advice given here, and expressly authorized by statute, is constitutionally infirm.

The Legislature undoubtedly could not engraft a condition upon a constitutional right...

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    ...202 N.W.2d 202 (1972) (Federal); State v. Neasbitt, 735 P.2d 337 (Okla.Crim.App.1987) (State and Federal); State v. Brean, 136 Vt. 147, 385 A.2d 1085 (1978) (State and Federal). See also Annot., Admissibility in Criminal Case of Evidence That Accused Refused to Take Test of Intoxication, 26......
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