State v. Gracey, 360-80
| Decision Date | 01 September 1981 |
| Docket Number | No. 360-80,360-80 |
| Citation | 436 A.2d 741,140 Vt. 199 |
| Parties | STATE of Vermont v. Gina M. GRACEY. |
| Court | Vermont Supreme Court |
Mark J. Keller, Chittenden County State's Atty., Harold E. Eaton, Jr., Deputy State's Atty., and Jeffrey Cohen, Law Clerk, Burlington, on the brief, for plaintiff.
James L. Morse, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant.
Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.
The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2).
The defendant was arrested on suspicion that she was driving while intoxicated, and taken to police headquarters. The arresting officer asked her to take a breath test, and read to her from what is referred to as an Implied Consent Form. This explained that the defendant had the right to refuse to take the breath test, that she had the right to consult with an attorney before deciding whether or not to take the test, and that in any event she had to make a decision within thirty minutes of her first attempt to contact an attorney. The form did not state that a needy person could consult with an attorney at public expense.
The defendant said she did not want to speak with an attorney and agreed to take the breath test, although she refused to sign the Implied Consent Form. A few minutes later, but before the breath test was given, the officer read to the defendant what is called the Miranda Warning and Public Defender Rights Form. This included the following:
Before we ask you any questions you have the right to talk to a lawyer and get his advice, and you have the right to have a lawyer here with you while we are questioning you.
You have the same right to the advice and presence of a lawyer even if you cannot afford to hire one.
If you cannot afford a lawyer and you want one, you have the right to be represented by an attorney at public expense.
The breath test was administered, and revealed a blood alcohol content of .23%. The defendant moved to suppress the results of the breath test on the grounds that she was not informed that she had the right to consult with an attorney at public expense before agreeing to take the breath test. This motion was denied. The parties stipulated to the facts, and the court entered a judgment of guilty. The defendant appeals from this judgment.
23 V.S.A. § 1202(b) grants a person who is asked to take a breath test the right to consult with an attorney before making a decision. In State v. Duff, 136 Vt. 537, 394 A.2d 1145 (1978), we held that this statute must be construed in pari materia with 13 V.S.A. § 5234 of the public defender statute. This section provides in part:
(a) If a person who is being detained by a law enforcement officer without charge or judicial process, or who is charged with having committed or is being detained under a conviction of a serious crime, is not represented by an attorney under conditions in which a person having his own counsel would be entitled to be so represented, the law enforcement officer, magistrate, or court concerned shall:
(1) Clearly inform him of the right of a person to be represented by an attorney and of a needy person to be represented at public expense ....
We held in Duff that the rights granted by 13 V.S.A. § 5234 apply to the situation governed by 23...
To continue reading
Request your trial
-
State v. Fuller
...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, h......
-
State v. Roya, 00-100.
...advise the defendant of his right to counsel . . . mandates a suppression of the results of the breath test." In State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981), we expounded on our holding in Duff and found that in addition to the requirement that defendants be informed of thei......
-
State v. Madonna, 98-352.
...(1992). Information about a motorist's right to contact counsel, however, is treated with special sensitivity. In State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981), we held that the fact that the form read to the defendant did not state that a needy person could consult with an at......
-
State v. Turner
...defendant cites cases asserting a defendant's right to consult with counsel before submitting to a breath test. State v. Gracey, 140 Vt. 199, 436 A.2d 741 (1981); State v. Duff, 136 Vt. 537, 394 A.2d 1145 (1978); State v. Welch, 135 Vt. 316, 376 A.2d 351 (1977). However, a witness's mere re......