State v. Hedding
| Decision Date | 12 July 1961 |
| Docket Number | No. 1911,1911 |
| Citation | 172 A.2d 599,122 Vt. 379 |
| Parties | STATE of Vermont v. Edwin F. HEDDING. |
| Court | Vermont Supreme Court |
John E. Bernasconi, Grand Juror of City of Barre, Barre, for plaintiff.
Finn & Davis, Barre, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The respondent was convicted by jury trial of operating a motor vehicle while under the influence of intoxicating liquor, a violation of 23 V.S.A. § 1183, in the Barre City Municipal Court. He has brought the case here upon notice of appeal from the verdict and judgment.
The first witness called by the State was a Dr. Archambault, City Physician and Police Examiner for the City of Barre. His direct testimony was short, and was only to the effect that he offered to give the respondent various tests to determine whether the respondent was under the influence of alcohol, which tests the respondent refused to take.
A prolonged cross-examination followed, with counsel for the respondent examining the doctor upon many matters which had not been testified to on direct examination. Objections were made at various times by the City Grand Juror to the lower court on the admission of evidence. The trial court instructed the City Grand Juror to withhold his objections until the close of the examination of the doctor by the counsel for the respondent and then make a motion to strike the testimony to which objection was made. Upon a motion to strike being made at the close of the cross-examination of the doctor, and upon an offer being made to 'connect up' this testimony by the respondent, the lower court again postponed its ruling until the close of the State's case.
At the close of State's evidence and a renewal of the motion to strike, the trial court again postponed its ruling, upon a further offer by the respondent to 'connect up' the testimony during the presentation of respondent's evidence. The motion to strike was granted, eventually, at the close of all the evidence in the case.
While it was within the discretion of the trial court to postpone its ruling on the objections to the admission of evidence, as it did, until the renewal of the motion to strike at the close of all the evidence, it is apparent from the record that it led to some confusion between the parties. We believe that the better practice is to rule upon objections to evidence as they are made. This provides a more careful and orderly procedure as the case progresses, and it also avoids confusion and possible unfairness to parties which may result if such matters are allowed to accumulate to be dealt with at the close of evidence, when it might be difficult to meet contentions then made for the first time. Solomon v. Dabrowski, 295 Mass. 358, 3 N.E.2d 744, 745, 106 A.L.R. 464.
The error claimed here by the respondent is that part of the testimony of Dr. Archambault struck by the trial court was an opinion by the doctor that the respondent was not under the influence of alcohol. Whether the answer of the doctor to the question of counsel for the respondent was an expression of an opinion, or was a declaration of a lack of opinion, is equivocal, particularly under the light of the questions to which the answer was made.
However, for the reason that a reversal and new trial on all issues, is necessary in this matter as will be disclosed later in this opinion, with a consequent new presentation of evidence, we find it unnecessary to consider this claimed error.
The second exception briefed by the respondent is to that portion of the power court's instructions to the jury by which the jury was informed of the provisions of 23 V.S.A. § 1191. Commonly known as the 'Implied Consent Law', this section of the statute provides that the holder of an operator's license, under the Motor Vehicle Act, when arrested for driving while under the influence of alcohol, may be requested by the State Police to undergo certain medical tests for the presence of alcohol in the blood stream. The person arrested may refuse the tests so offered. However, if there is such refusal, the presiding judge of the court before which he is arraigned, if he finds that the arresting officer had good cause to make such arrest, and the refusal of the respondent to take such tests is unreasonable, shall suspend the respondent's license to operate a motor vehicle for a six-month's period.
The results of such tests, when taken, may be received in evidence on the question of whether the respondent, so examined, was under the influence of alcohol at the time of his operation of the motor vehicle, and a court may properly charge the jury upon the results. The refusal to take such tests, however, is a privilege given to the respondent by the Legislature. While it is true that by such refusal an accused may suffer a loss of the license granted him to drive an automobile by the State, such suspension, in itself, is not a conviction of a criminal offense.
By refusing this test the respondent did what he had an absolute right to do which was the intention of the Legislature in enacting the statute. 'The fact that a defendant did what he had an absolute right to do cannot be used to create any unfavorable inference against him.' People v. Stratton, 1955, 286 App.Div. 323, 143 N.Y.S.2d 362, 365. By allowing evidence to come into a case of such refusal to take the test, and by the Court then instructing the jury upon such evidence of refusal, a respondent might well be condemned by inference for exercising a right given him under the law.
But the weakness of the position of this respondent upon the question he presents is that he allowed evidence that he refused to take such tests, as well as evidence on the nature of the tests that were offered him, to come into the case without objection. Evidence that his refusal to take the offered tests would lead to a summary hearing and a consequent loss of license also came into the case without objection from the respondent. In the absence of proper objection made, the evidence so received was for the consideration of the jury. Dieter v. Scott, 110 Vt. 376, 383, 9 A.2d 95; State v. Chark, 118 Vt. 131, 155, 101 A.2d 868.
Because the evidence was for the consideration of the jury the trial court had the right, if not the duty, to instruct the jury as it did. The evidence received without objection did not make it clear that the respondent had the right to refuse the offered tests. The charge of the Court made this plainly evident. Thus the respondent...
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