State v. Carmody, 352-79

• Decision Date: 02 February 1982
• Docket Number: No. 352-79,352-79
• Citation: 442 A.2d 1292,140 Vt. 631
• Parties: STATE of Vermont v. Marlene G. CARMODY.
• Court: Vermont Supreme Court

Page 1292

442 A.2d 1292

140 Vt. 631

STATE of Vermont v. Marlene G. CARMODY.

No. 352-79.

Supreme Court of Vermont.

Feb. 2, 1982.

David G. Miller, Franklin County State's Atty. and Marianne Lipscombe and Edward D. Fitzpatrick, Deputy State's Attys., St. Albans, for plaintiff.

James L. Morse, Defender General, William A. Nelson, Appellate Defender, Montpelier and Jacqueline Majoros, Law Clerk (On the Brief), for defendant.

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

BARNEY, Chief Justice.

A little after three o'clock in the morning on March 30, 1979, a St. Albans police officer stopped a car which was weaving back and forth on the highway to the point of crossing the center line. After the stop the officer walked up to the car and found the driver, the defendant, slumped over the wheel. When asked for her license and registration she fumbled with her purse and spilled the contents onto the floor. The officer asked her to step back to the cruiser. When she attempted to get out of the car she started to fall, but was caught by the officer. She then made her way to the cruiser by holding onto the car. Her breath smelled of alcoholic beverages. Upon the arrival of a second officer the defendant was taken to the police station for processing for driving while intoxicated.

Although she was stumbling and unsteady, with the help of the two officers the defendant made it into the police station. Once there, although she claimed to be able to do any physical test asked of her, she was not. She fell against the wall doing the heel-to-toe walking test and could not manage to touch her nose with her fingertip.

Although she had been insisting from the time she had been stopped that she would not take a breath test and that she would not go through a CRASH program again, the defendant was read the Implied Consent Law, 23 V.S.A. § 1202, as a preliminary to being asked for a breath test. Although she indicated she did not want to consult with an attorney, she did ask to be allowed to call her boyfriend. This request was denied by the police, but at the completion of the processing, and after thirty minutes had passed and she had refused to take a breath test, the police did call her boyfriend for her. A citation was prepared and tendered, which she refused to accept, but at no time was the defendant put under arrest.

Five days later a so-called "refusal" hearing was held to determine under 23 V.S.A. § 1205(a), whether the defendant's conduct amounted to a refusal to take the test for alcoholic blood content, so that the license suspension authority would apply. The defendant contended that the fact that she had not been allowed to make a phone call to her fiance invalidated the station house procedure, and that therefore she ought not to be treated as having refused under the statute. The hearing judge disagreed and ruled her conduct to be a refusal subject to penalty.

Since the statute also makes the fact of refusal admissible evidence in the trial for driving while intoxicated itself, to forestall that result the defendant moved to suppress the refusal proceedings. A hearing was had on this issue under V.R.Cr.P. 12(b). The trial judge, being the same judge as had heard the evidence at the refusal hearing, ordered the trial to proceed and said that he would rule on the issue as it arose during trial. On the raising of the issue by the evidence presented at trial, the court allowed the defendant's refusal to take a breath test to come in, leaving the jury free to draw such inferences from it as they reasonably might.

We agree with the State that the better practice would have been to hold a full hearing, with findings and order, on the suppression motion. But that was done in the refusal hearing, and the facts were set out in those findings. Nor is there any doubt about the court's position with respect to the requested suppression since the evidence was admitted in the face of renewed objection.

However, we cannot agree with the rulings at either the refusal hearing or trial regarding the admission of the evidence relating to refusal. Both sides speak of the "right" to make a phone call, but the concern of this Court is with the assumption of the right to deny the defendant the opportunity to make such a call.

The defendant was not under arrest. The legislature has made the sanction of license suspension available for refusal to take one of the specified tests measuring the alcoholic content of blood or breath whether or not there is an arrest, State v. Auger, 124 Vt. 50, 56, 196 A.2d 562, 566 (1963), and such custody is not a necessary prerequisite to its validity. But the statute involved gives any person in the defendant's situation a time period of thirty minutes to decide whether or not she will undergo the intoximeter test, 23 V.S.A. § 1202(c), and since the police elected not to exercise any custodial authority over her during that period, such as that generated by the procedure of arrest, their authority over her person was correspondingly limited.

So the question before us comes down to the measure of physical control the police are permitted to exercise over a defendant in such cases and under the authority of the relevant statutes, and the consequences, if any, of abuse of that authority. This immediately focuses our attention on the statutory significance of the thirty minute wait already noted that triggers the refusal determination. Does the law create a dilemma for the police officers?

That question is answered in the negative. Although the law is not explicit, its limits as applied to this case are determinable. The law presumes that a...