State v. Fuller

• Decision Date: 14 April 1995
• Docket Number: No. 94-441,94-441
• Citation: 660 A.2d 302,163 Vt. 523
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Francis H. FULLER.

Page 302

660 A.2d 302

163 Vt. 523

STATE of Vermont v. Francis H. FULLER.

No. 94-441.

Supreme Court of Vermont.

April 14, 1995.

Robert L. Sand, Staff Atty., Dept. of State's Attys., Montpelier, for plaintiff-appellant.

Richard A. Axelrod of Axelrod & Adler, St. Johnsbury, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

The State appeals an order of the Caledonia District Court suppressing the results of a breath test because defendant did not execute a written waiver of his right pursuant to 23 V.S.A. § 1202(c) to consult an attorney prior to submitting to the test. We reverse.

On December 31, 1993, a police officer stopped defendant at a sobriety checkpoint in West Danville, Vermont after observing defendant operate his vehicle erratically. The officer decided to process defendant for driving while under the influence of intoxicating liquor (DUI) after detecting the smell of alcohol on his breath, and observing his slurred speech and inability to perform field dexterity tests. See 23 V.S.A. § 1201. The officer placed defendant in custody and interrogated him. Before doing so, the officer notified defendant of his right to be represented by a lawyer and the right to appointment of such a lawyer if defendant was a needy person. Thereafter, defendant signed a written waiver of these rights; this waiver is not challenged here. The waiver stated in part, "Knowing my rights, I agree to waive them." Following the waiver of rights, the officer asked defendant a series of questions, which defendant answered.

Following this questioning, the officer advised defendant of his rights under Vermont's implied consent statute, 23 V.S.A. § 1202, including defendant's right to consult with an attorney prior to deciding whether to submit to a breath test. See id. § 1202(c). This was done by reading statements from a form and checking a box each time the officer covered a subject or received a response from defendant. Defendant orally waived his right to consult with an attorney. The officer noted this waiver by checking the appropriate box on the form. After all the boxes were checked, defendant signed the form. ¹ Thereafter, defendant took the breath test.

Defendant asked the court to suppress the breath test results during the civil suspension hearing held pursuant to 23 V.S.A. § 1205. On August 10, 1994, the trial court ordered that the results be suppressed. It reasoned that the implied consent statute, when read in pari materia with 13 V.S.A. §§ 5234 and 5237 (provisions of the public defender act), required a written waiver of a defendant's right to consult counsel as provided in the implied consent law. The court concluded that breath test results obtained in the absence of such a waiver must be suppressed. The State appealed.

The State's two principal arguments on appeal are that (1) a written waiver of the right to counsel is not required if the right is conferred by a statute other than the public defender act, and (2) even if a written waiver is required, defendant executed a written waiver in this case. In the context of this case, we agree with the first argument and do not reach the second one.

Vermont's implied consent statute gives a person from whom a breath test has been requested by a law enforcement officer a right to consult an attorney prior to deciding whether to take the test. 23 V.S.A. § 1202(c). Subsection (d) of § 1202 requires that the officer inform the person of this right at the time the officer requests the test. A person who is asked to take a breath test must also be informed of the right to consult with an attorney at public expense. State v. Gracey, 140 Vt. 199, 200-01, 436 A.2d 741, 743 (1981). In this case, the parties do not dispute that defendant was adequately informed of his rights; they do disagree, however, about how defendant may waive those rights.

Although it grants a right to counsel, § 1202 contains little detail about that right. When we have been called upon to define the nature of the right, we have often looked to the public defender act, specifically § 5234 of that act, reasoning that 23 V.S.A. § 1202 and 13 V.S.A. § 5234 should be read in pari materia. ² See State v. Garvey, 157 Vt. 105, 106 595 A.2d 267, 268 (1991); Gracey, 140 Vt. at 200-01, 436 A.2d at 743; State v. Duff, 136 Vt. 537, 539-40, 394 A.2d 1145, 1146 (1978). The critical decision in this line is Duff, where we held that the person being processed for DUI must be informed "of his right to consult with counsel before deciding whether to submit to a chemical test." Duff, 136 Vt. at 539, 394 A.2d at 1146. Although the implied consent law did not explicitly contain this requirement, we drew it from the public defender act because only with such a requirement "can the right to consult an attorney be adequately safeguarded." Id. at 540, 394 A.2d at 1146. By similar reasoning, we required in Gracey that the person being processed for DUI be informed of the availability of counsel at public expense. Gracey, 140 Vt. at 200-01, 436 A.2d at 743.

Before we examine the application of this analysis to this case, two background points are important. First, the rights contained in the public defender act are not directly applicable to the right in the implied consent law to consult counsel before deciding whether to take a blood-alcohol test. The public defender act implements the general right to counsel provided by the Sixth Amendment to the United States Constitution as well as Article 10 of Chapter I of the Vermont Constitution. The right to consult with counsel contained in the implied consent law is purely statutory, created by 23 V.S.A. § 1202(c). It is not constitutionally mandated because the decision whether to take the breath test is not a critical stage of the prosecution. See State v. Lombard, 146 Vt. 411, 414, 505 A.2d 1182, 1184 (1985). Nor does the right to the advice of counsel created in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), apply because the evidence sought is physical rather than testimonial. See Veilleux v. Springer, 131 Vt. 33, 42, 300 A.2d 620, 626 (1973).

Because of their different purposes, the right to counsel in the public defender act and the right to counsel in the implied consent law have different triggers. The former applies only when the defendant is "detained" or charged and only with respect to "conditions in which a person having his own counsel would be entitled to be so represented." 13 V.S.A. § 5234(a). The latter applies whenever a person is asked to take a blood-alcohol test irrespective of whether the person is detained at the time.

The second background point is that in pari materia is a statutory construction technique, and not a rule of law. Thus, it is an "aid" to construction, to be relied upon where appropriate, see State v. Desjardins, 144 Vt. 473, 475, 479 A.2d 160, 161 (1984); State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135, 1140 (1981), but not where it leads to a result not consistent with legislative intent. See Finberg v. Murnane, 159 Vt. 431, 436, 623 A.2d 979, 982 (1992). We must also remember that it is inappropriate "to expand a statute by implication, that is, by reading into it something which is not there, unless it is necessary in order to make it effective." State v. Jacobs, 144 Vt. 70, 75, 472 A.2d 1247, 1250 (1984) (emphasis in original).

The trial court's analysis relies on in pari materia to apply to DUI processing not only the basic requirements of the public defender act as contained in 13 V.S.A. § 5234, but also its special waiver provision contained in § 5237. That statute provides:

A person who has been appropriately informed under section 5234 of the title may waive in writing, or by other record, any right provided by this chapter, if the court, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law.

13 V.S.A. § 5237. We construed § 5237 in State v. Caron, 155 Vt. 492, 586 A.2d 1127 (1990), where we held that a waiver of the right to counsel under Miranda must be in a writing created by the defendant's own actions. Id. at 511, 586 A.2d at 1138. While recognizing that the federal constitution does not require a written waiver, we concluded that the Vermont Legislature, through § 5237, does. Id. at 510-11, 586 A.2d at 1138. Any evidence obtained in violation of § 5237 must be suppressed. State v. Pellerin, 161 Vt. 229, 232, 637 A.2d 1078, 1080 (1993).

We agree with the trial court that if the right to counsel provision of the implied consent law is held to be in pari materia with the waiver provision of the public defender act, and the defendant failed to execute a written waiver of his right to counsel in the implied consent law, the breath test results must be suppressed. We disagree that we should hold these statutory provisions to be in pari materia, and, therefore, conclude that the written waiver requirement of 13 V.S.A. § 5237 is inapplicable to the waiver of the right to consult counsel prior to deciding whether to take a blood-alcohol test. Three reasons underlie our decision.

First, the waiver statute states specifically that it relates only to persons informed of the right to counsel under § 5234 and the waiver of rights created in the public defender act. Thus, by its terms, the statute does not apply to rights created by the implied consent law and advice given under that law. Where the statutory intent is clear from the wording of the statute, it is inappropriate for us to use a secondary construction technique to evade the specific limits contained in the statute.

Second, a written waiver rule is not necessary to implement or "safeguard" the right to counsel. We have held that oral waivers of the right to counsel are effective under Miranda. See Caron, 155 Vt. at 508, 586 A.2d at 1136;...