State v. Bryan Wainwright. State

• Decision Date: 20 December 2013
• Docket Number: 13–010.,Nos. 12–213,s. 12–213
• Citation: 88 A.3d 423,2013 VT 120
• Parties: STATE of Vermont v. Bryan WAINWRIGHT. State of Vermont v. Matthew E. Wilder.
• Court: Vermont Supreme Court

88 A.3d 423

2013 VT 120

STATE of Vermont

v.Bryan WAINWRIGHT.

State of Vermont

v.Matthew E. Wilder.

Nos. 12–213, 13–010.

Supreme Court of Vermont.

Dec. 20, 2013.

David W. Gartenstein and Steven M. Brown, Windham County Deputy State's Attorneys, Brattleboro, for Plaintiff–Appellant.

Matthew F. Valerio, Defender General, Dawn Matthews and Rebecca Turner, Appellate Defenders, Montpelier, for Defendants–Appellees.

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

DOOLEY, J.

¶ 1. In these consolidated appeals, we consider whether the same prior conviction for driving under the influence (DUI) may serve both to criminalize a refusal to submit to an evidentiary blood-alcohol test under 23 V.S.A. § 1201(b) and to enhance the penalty for that offense under 23 V.S.A. § 1210. The trial court held that the statute prohibited such dual use, and the State appeals. We reverse, and conclude that the plain language of the statute allows the same prior DUI conviction to be used both as an element of criminal refusal and to enhance the penalty for the refusal.

¶ 2. The material facts in the two cases before us may be briefly recounted. In State v. Wainwright, Docket No. 2012–213, defendant was charged with DUI, second offense, for refusing to submit to an evidentiary blood or breath test in violation of 23 V.S.A. § 1201(b), which provides:

A person who has previously been convicted of a violation of this section shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway and refuse a law enforcement officer's reasonable request under the circumstances for an evidentiary test where the officer had reasonable grounds to believe the person was in violation of subsection (a) of this section.¹

The information alleged that Wainwright had been previously convicted of violating 23 V.S.A. § 1201(a) on July 8, 2008, and that this conviction triggered the application of § 1201(b). It also alleged that defendant was subject to a second-offense penalty, which provides that “[a] person convicted of violating section 1201 of this title who has been convicted of another violation of that section” shall be subject to a term of imprisonment of not more than two years, a fine of up to $1500, or both, and at least 200 hours of community service.²23 V.S.A. § 1210(c).

¶ 3. In an entry order dated May 12, 2012, the trial court found no probable cause for the second-offense allegation. The court reasoned that the information alleged only one prior conviction of 23 V.S.A. § 1201, that the prior conviction was “an essential element of [the] present charge” of refusal pursuant to § 1201(b), and that the prior conviction could not also be considered “another violation of that section” under § 1210(c) to enhance the penalty for a second offense. The State moved for permission to appeal the order, which was granted.

¶ 4. In State v. Wilder, Docket No. 2013–010, defendant was charged with DUI, fourth offense, in violation of § 1201(b), for refusing to submit to an evidentiary test. The information alleged that defendant had been previously convicted of violating 23 V.S.A. § 1201(a) in October 1989, September 1992, and June 2011. In December 2012, the trial court issued an entry order finding no probable cause for the charge of DUI, fourth offense, reasoning—as in Wainwright—that “[g]iven the necessary use of one of the prior convictions to establish an element of the current charge, the same prior conviction cannot be considered‘another violation’ of the same section.” Thus, the court concluded that the allegations supported at most a charge of DUI, third offense. We granted the State's subsequent motion for permission to appeal, and consolidated the matter with Wainwright for purposes of review on appeal.

¶ 5. The State asserts that the trial court erred in concluding that the same prior conviction of § 1201(a) cannot be used both to criminalize a refusal under § 1201(b) and to enhance the penalty for that offense under § 1210. The parties agree that the issue as framed turns solely on the legislative intent underlying the statutory scheme, and thus presents a question of law that we address de novo. State v. Therrien, 2011 VT 120, ¶ 9, 191 Vt. 24, 38 A.3d 1129 (“The interpretation of a statute is a question of law that we review de novo.”).

¶ 6. As we have repeatedly stated, in interpreting statutes our goal is to implement the intent of the Legislature. State v. Rafuse, 168 Vt. 631, 632, 726 A.2d 18, 19 (1998) (mem.). Therefore, we first look to the plain and ordinary meaning of the statutory language. See State v. Fletcher, 2010 VT 27, ¶ 10, 187 Vt. 632, 996 A.2d 213 (mem.) (stating that where language of statute is plain and unambiguous, Court will enforce it according to its terms). “We interpret penal statutes strictly, but not so strictly as to defeat the legislative purpose in enacting the law or to produce irrational and absurd results.” In re Jones, 2009 VT 113, ¶ 7, 187 Vt. 1, 989 A.2d 482 (quotation omitted). Although we generally apply a rule of lenity, it does not apply if the statutory language is unambiguous. Cf. State v. Goodhue, 2003 VT 85, ¶ 21, 175 Vt. 457, 833 A.2d 861 (explaining that rule of lenity directs that “any doubts created by ambiguous legislation be resolved in favor of the defendant”).

¶ 7. Here, the language is clear. Under the statutory scheme, a person, who has previously violated § 1201(a) and refuses an officer's reasonable request to submit to an evidentiary test, commits a crime. 23 V.S.A. § 1201(b). The penalty for that violation of § 1201 increases if a person has a prior violation of § 1201. See id. § 1210(c)-(e) (listing increased penalties for second, third, fourth, and higher offenses). The penalty enhancement is not dependent on which subsection of § 1201 is violated, but simply references a violation of “section 1201.” See id. By referring generally to “section 1201” and not excluding § 1201(b) pertaining specifically to criminal refusal, the statute's language plainly indicates an intent to apply the increased punishments to successive violations of § 1201 regardless of how the section was violated—either through a blood-alcohol level above the legal limit, a criminal refusal, or through some other manner. Defendants argue that if this were the Legislature's intent, it should have stated so more explicitly. Further explanation was not necessary, however, because the language stating that the recidivist penalty applies to violations of “section 1201” is explicit enough to understand that all prior violations act as enhancements of the current violation even if one prior violation was also used as an element of the refusal.

¶ 8. Further, what is also plain is that the statute does not contain the additional requirement imposed by the trial court—that one of the convictions under § 1201 cannot be a conviction for criminal refusal under § 1201(b), at least if it is the first such conviction. Absent such an indication, we will not impose this added restriction to implementation of the statute. See State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996) ( “It is inappropriate to read into a statute something which is not there unless it is necessary in order to make the statute effective.”).

¶ 9. We are further convinced that defendants' interpretation of the statute is not what the Legislature intended because of an inconsistency that results when a defendant with a prior conviction is charged with both refusal and DUI. The statute specifies that “[a] person may not be convicted of more than one violation of subsection (a) of this section arising out of the same incident.” 23 V.S.A. § 1201(f). The prior version of the statute prohibited convicting a person “of more than one offense under this section arising out of the same incident.” See 2007, No. 195 (Adj.Sess.), § 4. By changing the statute to preclude multiple convictions of “subsection (a),” rather than of § 1201 generally, the Legislature indicated its intent to allow a defendant's behavior in a single incident to result in charges both for refusal, under § 1201(b), and DUI under § 1201(a)(2). This is exactly what the State charged concerning defendant Wilder, who the State alleged has three prior violations of § 1201. A curious contradiction results, however. Because the trial court concluded that one of the prior convictions could not both be used as an element of the refusal and for purposes of enhancement, the refusal is reduced to a third-offense penalty, while the DUI remains subject to a fourth-offense penalty. The Legislature's direction was to allow the State to convict for both refusal and DUI, and provided no instruction that the refusal penalty should be anything less than that applied to the DUI. Absent such direction, we will not apply such a limit of our own accord.

¶ 10. Defendants liken their situations to cases where this Court has disapproved of using multiple convictions arising out of the same criminal transaction to establish habitual offender status. See State v. Angelucci, 137 Vt. 272, 289, 405 A.2d 33, 42 (1979) (noting that multiple convictions arising from same criminal transaction should be treated as one for habitual criminal purposes), superseded by statute on other grounds as recognized in State v. Carpenter, 2013 VT 28, ¶ 8, 193 Vt. 484, 70 A.3d 1023. There is no similarity to defendants' situation in these consolidated cases. Here, there is no attempt to use multiple convictions arising from the same transaction to enhance defendants' penalties.

¶ 11. Defendants also argue that their situation is similar to that of the defendant in State v. Ritter, 167 Vt. 632, 714 A.2d 624 (1998) (mem.). In Ritter, the defendant was charged with two counts of domestic abuse because two aggravating factors were present. This Court reversed, concluding that it would be an absurd result to allow two convictions for one act simply because two aggravating factors were...