State v. Forcier, No. 92-530

• Docket Nº: No. 92-530
• Citation: 643 A.2d 1200, 162 Vt. 71
• Case Date: May 20, 1994
• Court: United States State Supreme Court of Vermont

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643 A.2d 1200 162 Vt. 71 STATE of Vermont
v.
Michael FORCIER. No. 92-530. Supreme Court of Vermont. May 20, 1994.

[162 Vt. 72] 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.

[162 Vt. 71] Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

[162 Vt. 72] 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.

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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 [162 Vt. 73] 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. [162 Vt. 74] § 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).

I.

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

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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.

II.

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). [162 Vt. 75] Where the meaning of a statute is plain on its face, the statute must be enforced...