State v. Gray

• Decision Date: 03 June 1988
• Docket Number: No. 84-117,84-117
• Citation: 150 Vt. 184,552 A.2d 1190
• Parties: STATE of Vermont v. Douglas GRAY.
• Court: Vermont Supreme Court

Page 1190

552 A.2d 1190

150 Vt. 184

STATE of Vermont v. Douglas GRAY.

No. 84-117.

Supreme Court of Vermont.

June 3, 1988.

Motion for Reargument Denied July 6, 1988.

Philip H. White, Orleans County State's Atty., Newport, for plaintiff-appellee.

Rexford & Kilmartin, Newport, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

GIBSON, Justice.

Defendant appeals his conviction for driving while under the influence of intoxicating liquor (DUI), in violation of 23 V.S.A. § 1201(a)(2). We affirm.

I.

Viewed in the light most favorable to the State, State v. Jaramillo, 140 Vt. 206, 208, 436 A.2d 757, 759 (1981), the record reveals the following relevant facts. At approximately 9:40 p.m. on March 5, 1983, defendant drove his pickup truck over the sidewalk into a temporary parking area on the other side of the street from a bar in the City of Newport, Vermont. A police officer standing in front of the bar heard a loud noise and observed defendant's vehicle traveling on the sidewalk. As defendant and a companion left the vehicle, the officer saw defendant toss what appeared to be an empty beer bottle into the back of the open truck.

When defendant and his companion headed toward the bar, the officer crossed the street and asked them to return to their vehicle. They complied, and at the officer's request, defendant produced his driver's license and the vehicle's registration. At this time, the officer observed several empty beer cans in the back of the open truck as well as a twelve-pack of beer in the cab of the truck with one or two beers missing from the pack. The officer also noticed an odor of alcohol on defendant's breath. As defendant attempted to pass something to his companion, the keys to the vehicle dropped to the ground. The officer picked up the keys and kept them in his possession. Defendant did not request their return. During this time, defendant commented that he had just been to another bar in town for "two beers" and that he and his companion were going to the bar across the street.

Following this exchange, the officer asked defendant to perform several dexterity tests. Defendant performed the tests, but not to the satisfaction of the officer, who concluded that defendant had been operating his vehicle while under the influence of intoxicating liquor. Because the officer was on foot patrol, he radioed for assistance and told defendant that he would be taking him to the police station for DUI processing. At the station, defendant was read his Miranda warnings, and was administered a breath test at 11:33 p.m. The officer made additional observations that defendant's eyes were bloodshot and watery, his speech slurred, and that he was unsteady on his feet. Another officer at the station made similar observations.

Prior to trial, defendant made timely motions to dismiss the case and to suppress any evidence obtained as a result of an alleged illegal arrest and confession. The trial court refused to dismiss the case or to suppress the test results. The court made no findings, however, as to whether there had been an illegal detention, but did suppress certain answers by defendant, finding that he had been given a defective Miranda warning.

At trial, the State's chemist testified, over defendant's objection, that based on his evaluation of defendant's breath sample, he believed that defendant's blood alcohol content (BAC) at the time of the test had been .16 percent. The chemist further testified that a person of defendant's size would have had to consume a minimum of eight beers in order to achieve a BAC of .16 percent. The chemist also testified that where, as in the instant case, the breath test was taken nearly two hours after the operation of the vehicle, a person would have had to consume a minimum of three to four beers just prior to that operation in order to have a BAC below .10 percent at the time of operation. ¹ Defendant was found guilty of DUI, in violation of 23 V.S.A. § 1201(a)(2).

Defendant appeals, raising a number of issues: first, that the trial court erred in admitting defendant's breath test result; second, that defendant's right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures was violated by the police officer's initial investigation and subsequent processing of him for DUI; third, that the court's pretrial findings were inadequate to support the denial of defendant's motion to dismiss; and finally, that the evidence was insufficient to support a conviction.

II.

Defendant asserts that the trial court erred by admitting defendant's test results without requiring that they be related back to the time of operation and without a limiting instruction as to their relevance. We have previously held that where no expert testimony has related the test result back to the time of operation of the vehicle, it is reversible error to admit the test result. State v. Dumont, 146 Vt. 252, 254-55, 499 A.2d 787, 789 (1985). In the instant case, the testimony of the State's chemist provided the necessary link relating back the test result to the last act of operation. While the chemist was unable to testify to an exact BAC at the time of operation, he provided sufficient evidence to satisfy the standards set by this Court. See State v. Rollins, 141 Vt. 105, 111, 444 A.2d 884, 887 (1982) ("There is no requirement that an expert offer his opinion in terms of absolute certainty."). Because of the high level of the test result, only one set of circumstances existed under which defendant's BAC could have been below the requisite .10 percent at the time of operation: defendant's consumption of a large amount of alcohol just prior to the last act of operation. This theory was rebutted by the testimony of the chemist, the arresting officer, and defendant's companion. Any weakness in the expert's testimony as to the test result would go to "the weight and credibility the jury chose to accord it, not to its admissibility." State v. Bushey, 149 Vt. 378, 381, 543 A.2d 1327, 1329 (1988).

While the breath test was properly admitted, an instruction to the jury regarding the inferences which could be drawn from it should have been given by the trial court. See Rollins, 141 Vt. at 110, 444 A.2d at 887. This failure, however, does not necessitate reversal of defendant's conviction. At a chambers conference shortly before defendant rested his case, the trial court asked defense counsel whether he wished the court to give any limiting instruction regarding the significance of the breath test; counsel expressly requested that no limiting instruction of any kind be given to the jury on this matter. No further request of this nature was made to the court by counsel. We find that defense counsel's action constituted a waiver of the limiting instruction, which, therefore, cured any error arising from the failure of the trial court to provide a limiting instruction. See State v. Parker, 139 Vt. 179, 183, 423 A.2d 851, 853 (1980).

Failure to object to an error in the jury instructions may foreclose appeal on this issue absent plain error. See State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986). We find no error in the jury instructions so egregious as to require reversal of defendant's conviction. See id. ("Plain error can be found only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of defendant's constitutional rights.").

III.

Defendant also alleges that the police officer's initial investigation and subsequent processing of defendant for DUI violated his Fourth Amendment right under the United States Constitution to be free from unreasonable searches and seizures. ² We hold that while defendant was stopped and later arrested by the officer, defendant's Fourth Amendment rights were not violated as the officer had sufficient cause at each step to justify his actions in accordance with the Fourth Amendment. What occurred in the instant case was an escalating situation, where each inquiry by the officer led to further evidence justifying further restraints on defendant's freedom until probable cause existed to arrest defendant and process him for DUI. See, e.g., State v. Watson, 165 Conn. 577, 585, 345 A.2d 532, 537 (1973) (if results of initial stop arouse further suspicion, the stop may be prolonged and the scope enlarged as justified by the circumstances).

The police officer's initial request that defendant return to the vehicle was no more than a routine street encounter which defendant was free to ignore without adverse consequences. See Terry v. Ohio, 392 U.S. 1, 32-33, 88 S.Ct. 1868, 1885-86, 20 L.Ed.2d 889 (1968) (Harlan, J., concurring) (a forcible stop calling into play the Fourth Amendment panoply of rights involves more than the police officer's ability "to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away...."). See also id. at 34, 88 S.Ct. at 1886 (White, J., concurring) ("nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets"). Cf. State v. Kettlewell, 149 Vt. 331, 335, 544 A.2d 591, 593 (1987) (seizure occurred when suspects were ordered from trailer by police officers with weapons drawn, and then questioned by federal agents); State v. Bushey, 148 Vt. 197, 199, 531 A.2d 902, 904 (1987) (approach of officer to vehicle did not require probable cause).

Nor did a Fourth Amendment seizure occur when the officer retained defendant's car keys. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct 1870, 1877, 64 L.Ed.2d 497 (1980) ("We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person...