State v. Gilman

• Decision Date: 09 November 2001
• Docket Number: No. 99-332.,99-332.
• Citation: 787 A.2d 1238
• Parties: STATE of Vermont v. Charles GILMAN.
• Court: Vermont Supreme Court

787 A.2d 1238

STATE of Vermont v. Charles GILMAN.

No. 99-332.

Supreme Court of Vermont.

November 9, 2001.

Robert Butterfield, Caledonia County Deputy State's Attorney, St. Johnsbury, and Jane Woodruff, Department of State's Attorneys, Montpelier, for Plaintiff-Appellee.

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for Defendant-Appellant.

Present: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Defendant Charles Gilman appeals a conviction for operating under the influence of intoxicating liquor (OUI) pursuant to 23 V.S.A. § 1201(a)(2), entered on a conditional plea. On appeal, defendant argues that the Caledonia District Court erred in failing to suppress evidence that he refused to take a breath test and allowing such evidence to be introduced pursuant to 23 V.S.A. § 1202(b). He argues that his refusal was obtained in violation of his statutory right to counsel because: (1) his refusal to provide a breath sample was not voluntary because he was not afforded a meaningful opportunity to consult with a public defender, and (2) the police's failure to provide consultation with an interested party working on defendant's behalf rendered his refusal involuntary. We reverse on the first issue and do not reach the second.

The material facts are not in dispute. At approximately 5:30 p.m., on October 9, 1998, defendant was stopped, arrested, and processed for OUI by a Vermont state trooper. At the barracks in St. Johnsbury, as part of the arrest procedure, the trooper read to defendant from a standardized "implied consent" processing form, explaining defendant's statutory implied consent rights to him. When asked if he wished to consult an attorney before deciding to submit a breath sample for analysis, defendant answered affirmatively and gave the trooper the name of a specific attorney to call. The trooper reached the named attorney, but she was unable to speak with defendant because she was a state's attorney in another county at the time. Defendant told the trooper that he did not know any other attorney to call, so the trooper gave defendant a list of public defenders. Defendant selected an attorney from the list, and the trooper twice tried to contact the attorney without success. The trooper then called the remaining nine attorneys on the list, but reached only one, who advised him that she was no longer a public defender.

In all, the trooper made twelve phone calls to eleven attorneys between 6:40 p.m. and 7:10 p.m. The trooper's efforts met with futility primarily because, at the time, the Defender General's Office did not provide state-wide, on-call service on weekdays between 4:30 p.m. and 9:00 p.m.¹ At the end of this period, defendant was again asked to provide a breath sample, but refused.

In October 1998, an information was filed against defendant charging him with misdemeanor OUI in violation of 23 V.S.A. § 1201(a)(2). In November 1998, a hearing was held regarding defendant's civil license suspension pursuant to 23 V.S.A. § 1205(a). Defendant argued at that hearing that he was denied his statutory right to counsel. In December 1998, defendant filed a motion to suppress use of the refusal in the criminal case because, he argued, his statutory right to counsel was violated. Defendant asserted the same violation during both the civil and criminal proceedings, namely, that because the Defender General did not provide twenty-four hour public defender coverage as required by 23 V.S.A. § 1202(g), he was denied a meaningful opportunity to consult with counsel and his refusal to take the test was involuntary. On January 26, 1999, the court ruled on defendant's motion; it concluded that defendant's "refusal was not obtained in violation of his statutory right to counsel," and entered judgment for the State in the civil suspension proceeding.² The court also denied defendant's motion to suppress evidence of the refusal in the criminal case. On July 23, 1999, defendant entered into a conditional plea, reserving the right to appeal the court's denial of his motion to suppress, and on July 28, 1999, defendant filed his notice of appeal to this Court.

On appeal, defendant renews his arguments made in the trial court. He argues that because there was no public defender available as directed by § 1202(g), he was denied any meaningful opportunity to consult with counsel; hence, his refusal was involuntary. He argues that compliance with § 1202(g) is a necessary predicate before evidence of a refusal can be admitted against him.

The State's position below, and again here on appeal, is that the Legislature's 1997 amendment to 23 V.S.A. § 1202(c), in response to this Court's decision in State v. Garvey, 157 Vt. 105, 595 A.2d 267 (1991), governs and makes clear that an operator in defendant's position has thirty minutes to consult with an attorney, and if the thirty minutes passes with or without consultation, then the operator must decide whether to submit to an alcohol level test. The amended § 1202(c) reads as follows:

A person who is requested by a law enforcement officer to submit to an evidentiary test or tests has a right as herein limited to consult an attorney before deciding whether or not to submit to such a test or tests. The person must decide whether or not to submit to the evidentiary test or tests within a reasonable time and no later than 30 minutes from the time of the initial attempt to contact the attorney. The person must make a decision whether or not to submit to the test or tests at the expiration of the 30 minutes regardless of whether a consultation took place.

Relying on the "regardless of whether a consultation took place" language at the end of § 1202(c), the State argues that this case involves a simple matter of statutory construction, and the trial court agreed.

The resolution of an appeal to this Court often depends upon how the issues are framed here. This case is a very good example of that point. This case is not about statutory construction of 23 V.S.A. § 1202(c) or about situations where an OUI detainee cannot reach a lawyer despite the presence of full time defender coverage throughout the state. Nor is the issue, as the State argues, whether the trooper acted in good faith in calling ten lawyers who had no responsibility to answer the phone and would not be compensated for doing so.

The issue instead is whether defendant has any remedy for failure of the State of Vermont to comply with 23 V.S.A. § 1202(g) by making legal services available to him to decide whether to take the breath test, as the Legislature directed. Section 1202(g) commands:

The defender general shall provide statewide 24-hour coverage seven days a week to assure that adequate legal services are available to persons entitled to consult an attorney under this section.

It is undisputed that the Defender General failed to comply with this mandate, leaving a gap in coverage between the end of normal business hours and the late evening hours. Thus, as a result of the failure of the executive branch of the state to comply with the law, defendant could not obtain legal advice to aid him in weighing his options as the law intended.

If there is any lesson in our OUI decisions, it is that the failure of the State to comply with counsel-related rights of an OUI detainee has consequences for the State in OUI prosecutions. This lesson came first in State v. Duff, 136 Vt. 537, 394 A.2d 1145 (1978), where this Court was required to determine the reach of 23 V.S.A. § 1202(b),³ which provided the statutory right to "consult an attorney prior to deciding whether or not to submit to [a] chemical test." Id. at 538, 394 A.2d at 1146. Drawing on the obligation of a law enforcement officer under the public defender act to notify a public defender when an individual is detained under circumstances creating a right to counsel, see State v. Nicasio, 136 Vt. 162, 166, 385 A.2d 1096, 1099 (1978), we held that the statute requires a law enforcement officer to notify a detainee of the right to consult an attorney. Duff, 136 Vt. at 539, 394 A.2d at 1146. Because the officer failed to notify the defendant of this right in Duff, we suppressed the result of the defendant's breath sample, reasoning:

When a driver makes a complicated decision, without the option of consulting counsel as is his statutory right, he should not be bound by that decision, since he might with counsel have made it differently. Therefore, we have no hesitation in holding that the failure of law enforcement officers to advise the defendant of his right to counsel as provided in 23 V.S.A. § 1202(b) mandates a suppression of the results of the breath test.

Id. at 540, 394 A.2d at 1146.

We reinforced the Duff remedy in State v. Carmody, 140 Vt. 631, 442 A.2d 1292 (1982), where the law enforcement officer refused to allow the OUI detainee to make a telephone call and the detainee refused to take the breath test. We found the restraint on defendant's actions to be inconsistent with the statutory refusal and held that the State could not offer the refusal into evidence in an OUI prosecution. Id. at 636, 442 A.2d at 1295. We reasoned:

Since the impact of actions seen as coercive or restrictive is almost impossible to measure after the fact, as we have noted in connection with improprieties directed at juries, we are compelled to the position that a mere demonstration that such actions occurred creates a flaw in the procedure.

Id. (citations omitted); see also Pfeil v. Rutland Dist. Ct., 147 Vt. 305, 310, 515 A.2d 1052, 1056 (1986) (Carmody governs where officers listen to conversations between the OUI detainee and the contacted public defender).

We applied the Duff remedy in Garvey, a case where the detaining law enforcement officers made no procedural violation, but defendant could not reach a public defender within the statutory thirty-minute period. When defendant refused to decide whether to take the breath test without...