State v. Forcier, 92-530

Decision Date20 May 1994
Docket NumberNo. 92-530,92-530
Citation643 A.2d 1200,162 Vt. 71
PartiesSTATE of Vermont v. Michael FORCIER.
CourtVermont Supreme Court

Michael P. Harty, Windham County Deputy State's Atty., Brattleboro, and Gary Kessler, Supervising Appellate Prosecutor, Montpelier, for plaintiff-appellee.

David G. Reid, Brattleboro, for defendant-appellant.


JOHNSON, Justice.

Defendant pled nolo contendere to a misdemeanor violation of 23 V.S.A. § 1201(a)(2), driving while intoxicated (DWI), reserving the right to appeal the district court's denial of his motion to suppress pursuant to V.R.Cr.P. 11(a)(2). Defendant argues on appeal that all testimonial and nontestimonial evidence stemming from his DWI arrest must be suppressed because the officers exceeded the arrest authority provided by V.R.Cr.P. 3(a)(5) in that they: (1) arrested defendant more than two hours after the alleged offense occurred; and (2) interrogated defendant after they arrested him. We reverse and remand because the V.R.Cr.P 3(a)(5) arrest for DWI did not give police authority to interrogate defendant.

On March 29, 1991, defendant was involved in a two-car automobile accident at 9:44 p.m. State police responded to the scene and were advised by the operator of the other vehicle that defendant had left the scene of the accident and travelled to his home, which was approximately two miles away. Two state troopers went to defendant's home and encountered defendant when he exited his home from a back porch. The officers observed evidence of defendant's intoxication. Upon questioning, defendant admitted to having operated his vehicle and was requested to produce his license, registration and proof of insurance, which he did.

A third officer, Trooper Favreau, arrived at the scene. He administered an alco-sensor test and requested that defendant perform dexterity tests. Defendant's performance indicated substantial impairment; defendant's speech was slurred, his walking was unsteady, and he stumbled. Defendant admitted in response to questioning that he had had four beers and that the time of his last drink was about an hour earlier, around 9:30 p.m.

At 11:10 p.m., defendant was placed in handcuffs and transported to the police barracks in a cruiser. Trooper Favreau testified at the suppression hearing that although he could not remember exactly what he said to defendant at that time, he told defendant he was in custody for driving while intoxicated. At the barracks, defendant was given Miranda warnings and, after waiving counsel, he was interrogated. The interrogation yielded "substantial incriminating evidence." The officers also read the Implied Consent Form to defendant; defendant consented to the breath sample and declined the offer to contact an attorney. The officers collected the sample at 11:45 p.m. Trooper Favreau entered on the arrest form that defendant was formally arrested at 11:50 p.m. The trooper subsequently issued a citation to defendant for DWI and leaving the scene of an accident (LSA) and released defendant.

On appeal, defendant argues that his arrest and subsequent interrogation exceeded the scope of arrest authority provided by V.R.Cr.P. 3(a)(5). Rule 3(a)(5) is an exception to the general rule that an officer cannot arrest a person without a warrant for a misdemeanor that was not committed in the officer's presence. See generally V.R.Cr.P. 3(a). Specifically, Rule 3(a)(5) provides:

An officer may also arrest a person without a warrant ... (5) when the officer has probable cause to believe a person has committed or is committing a violation of 23 V.S.A. § 1128 [LSA] or 23 V.S.A. § 1201 [DWI]. An arrest under this subdivision shall be made within two hours of the time the alleged offense was committed, and not thereafter. In the case of an arrest under this subdivision for an alleged violation of 23 V.S.A. § 1201, the person may be detained only for the limited purpose of obtaining a sample of breath or blood.

(Emphasis added.) Because "V.R.Cr.P. 3 was designed to both codify and enhance protections conferred by the Fourth Amendment," the remedy for violation of Rule 3 is suppression of the evidence seized under the exclusionary doctrine. State v. Laflin, 160 Vt. 198, 201, 627 A.2d 344, 346 (1993).


Defendant's first argument is that he was formally arrested more than two hours from the time of the alleged offense and therefore his arrest was not authorized by V.R.Cr.P. 3(a)(5). Defendant's argument is based on the fact that Trooper Favreau entered 11:50 p.m. as the time of "formal" arrest, though the alleged offense was committed at 9:44 p.m. The trial court, however, found that defendant was arrested by Trooper Favreau at 11:10 p.m. when the trooper placed defendant in handcuffs, told defendant he was in custody for DWI, and placed defendant in a police cruiser for transport to the police barracks. We agree with the trial court. A suspect is arrested when the suspect's liberty is restrained or the suspect submits to the officer's authority. State v. Blaine, 133 Vt. 345, 351, 341 A.2d 16, 20 (1975). Here, within two hours of the alleged offense, defendant was actually restrained by Trooper Favreau and told he was in custody for DWI. Trooper Favreau's notation of a time beyond the two-hour limit as the arrest time on the arrest report did not nullify the occurrence of the arrest at 11:10 p.m.


Defendant's second argument is that the officers exceeded the scope of the arrest authority provided by Rule 3(a)(5)--that "the person may be detained only for the limited purpose of obtaining a sample of breath or blood"--by interrogating defendant to obtain testimonial evidence. Defendant contends that this abuse of the limited arrest authority rendered the entire detention illegal and, therefore, both the testimonial evidence and the breath sample must be suppressed.

Rule 3(a)(5) was not promulgated by this Court; it was enacted by the Legislature. 1987, No. 269 (Adj.Sess.), § 1. The overriding objective of statutory construction is to ascertain the intent of the legislature. State v. Wilcox, 160 Vt. 271, 275, 628 A.2d 924, 926 (1993). Where the meaning of a statute is plain on its face, the statute must be enforced according to its express terms. Id. Nonetheless, we avoid interpretations that would lead to "an unjust, unreasonable and absurd consequence." O'Brien v. Island Corp., 157 Vt. 135, 139, 596 A.2d 1295, 1297 (1991).

The language of Rule 3(a)(5) is plain and unambiguous. If the arrest is for DWI, the arrest can be used for one purpose only--"the limited purpose of obtaining a sample of breath or blood." This reading is supported by the Reporter's Notes to the rule, which provide in relevant part that:

The rule ... limits the authority to arrest by stating that in arrests for alleged driving while under the influence, "the person may be detained only for the limited purpose of obtaining a sample of breath or blood." Thus an arrest for violation of 23 V.S.A. § 1201 must terminate once this testing has been completed, and the detention can be utilized for no other purposes. This is a substantial limitation. Testing results have only limited admissibility without information as to drinking history, usually obtained by questioning the suspect. *

Reporter's Notes, V.R.Cr.P. 3(a)(5), 1988 Amendment (emphasis added).

Seizing on this last sentence of the Reporter's Notes, the State argues that a literal reading of the rule would be an irrational construction because the value of the test without information about the suspect's drinking history is limited. In addition, according to the State, a literal reading of the rule would lead to the absurd result that an arresting officer could not even apprise a suspect of the rights under law surrounding the taking of the test. Instead, the State argues that Rule 3(a)(5) enables officers to detain persons suspected of DWI outside the presence of the officers, "long enough to investigate, reaffirm the probable cause, [and] administer an evidentiary test along with the attendant 'processing'...." The State's argument overstates the limits of the plain meaning of the rule and is contrary to Rule 3(a)(5)'s legislative history.

The rule allows officers to obtain vanishing nontestimonial evidence of a suspect's blood-alcohol content through the taking of a blood or breath sample. As part of the necessary procedure to obtain the sample, the defendant must be apprised of the various rights connected to the taking of the sample, and the authority to do so is clearly implied under the plain meaning of Rule 3(a)(5). Interrogation, however, is not a part of that necessary procedure, and its inclusion is not essential to avoid an absurd consequence. Although it is true that the test alone has limited value, a defendant's testimonial evidence can be obtained prior to arrest, as it was here, or at another time. Thus, the plain meaning of the rule does not, as the State claims, lead to the absurd result that an officer is authorized to obtain a sample that has no value. The exception was an expansion, albeit a limited one, of arrest authority and was designed to strike a new balance between the right of an individual to be free from arbitrary arrest for minor offenses and the right of the public to be protected.

That the Legislature was striving for such a limited expansion of arrest authority is evident in Rule 3(a)(5)'s legislative history. Rule 3(a)(5) was part of House Bill 62, an act relating to arrests for misdemeanors. At the time the bill was introduced, our rules allowed an officer to arrest a person without a warrant if (1) the person committed a felony or misdemeanor in the officer's presence; (2) the officer had probable cause to believe the person had committed a felony, even if the officer was not present when the offense was committed; or (3) a person committed a misdemeanor that involved either a violation of an abuse...

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  • State v. Read
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    • March 22, 1996 1084. In construing statutes, our overriding objective must be to effectuate the intent of the Legislature. State v. Forcier, 162 Vt. 71, 74, 643 A.2d 1200, 1202 (1994). We accord statutes a presumption of constitutionality. Benning, 161 Vt. at 481, 641 A.2d at 762. We also presume that ......
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