State v. Laplaca

• Decision Date: 06 December 1966
• Docket Number: No. 1971,1971
• Citation: 224 A.2d 911,126 Vt. 171
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Peter Paul LAPLACA.

Page 911

224 A.2d 911

126 Vt. 171

STATE of Vermont v. Peter Paul LAPLACA.

No. 1971.

Supreme Court of Vermont.

Dec. 6, 1966.

Theodore Corsones, Rutland, for petitioner.

Robert E. West, State's Atty., for the State.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SMITH, Justice.

Respondent seeks a Writ of Certiorari to the Rutland District Court asking to have reviewed the proceeding of said District Court pertaining to the suspension of respondent's license to operate a motor vehicle, under the provisions of 23 VSA Sec. 1191, and asking this Court to declare that the suspension of his driving license by the District Court was illegal and void. The State has filed a motion to quash the petition on grounds that other means of review of the questions sought to be presented here are available to the respondent, and, admitting the facts presented in the Writ to be true, that they do not present substantial questions of law for the determination of this Court.

On June 22, 1966, the respondent, while operating a motor vehicle, was involved in an accident in Fair Haven, Vermont. He was arrested for public intoxication by the Fair Haven police and was requested to submit to a chemical test to determine the alcoholic content of his blood, as provided by 23 VSA Sec. 1188. The respondent refused to submit to any test until he had first consulted an attorney. He continued in his refusal to submit to such test at the Vermont State Police Barracks in Rutland where he was taken, and was committed to the Rutland County Jail on the public intoxication warrant.

On June 23, 1966, he pleaded not guilty to the charge of public intoxication, and at the time of the arraignment, pleaded not guilty to a new information issued on that day by the State's Attorney accusing the respondent of driving a motor vehicle along the public highway while under the influence of intoxicating liquor on June 22, 1966.

The significant fact in a consideration of the questions sought to be presented here is that at all times when the respondent was requested to take the chemical test under the provisions of 23 VSA 1188, he was under arrest only on the charge of public intoxication. He was never requested to take a test after his arrest on the charge of driving while intoxicated.

23 VSA Sec. 1188 reads:

'Any person who operates or attempts to operate a motor vehicle upon a public highway in this state is deemed to have given his consent to submit to a chemical test of his blood or such other test as herein provided for the purpose of determining the alcoholic content of his blood whenever he is arrested or otherwise taken into custody for any offense involving his operation of a motor vehicle while under the influence of intoxicating liquor or drugs, and the arresting officer has reasonable grounds to believe that the person was operating the motor vehicle under the influence of intoxicating liquor or drugs.'

If a person 'so arrested' refuses to submit to the test, he is then subject to the proceeding set forth in 23 VSA Sec. 1191:

'If the person so arrested refuses, on request, to submit to the test, it shall not be given. If such person is charged with a violation of the motor vehicle laws and upon arraignment enters a plea of not guilty, the court at such arraignment shall hold a summary hearing, take evidence relating to the reasonableness of the respondent's refusal to submit to a test. Upon a finding by the court that the arresting officer had sufficient reason to believe that the respondent was so operating and that the respondent unreasonably refused to submit to a test, such respondent's operator's license or non-resident operating privilege or the privilege of an unlicensed operator to operate a motor vehicle shall be suspended for a period of six months and the respondent shall deliver his operator's license, if any, to the court and the court shall forward it forthwith to the commissioner of motor vehicles.'

We first consider the motion to quash made by the State to determine if a Writ of Certiorari can issue in the instant case under the admitted facts. 'The writ issues only when there is no other adequate remedy at law, and brings up for review only substantial questions of law affecting the merits of the case involved in the proceedings below.' In re Taconic Racing and Breeding Association, Inc., 125 Vt. 76, 77-78, 209 A.2d 492, 493 and cases cited thereunder.

It cannot be doubted that the respondent has no other adequate remedy at law to review the proceedings below under the provisions of 23 VSA Sec. 1188 and Sec. 1191. The right of review in this Court, which the respondent seeks, is not provided by statute, and without such authority this Court has no jurisdiction to entertain an appeal. State v. Muzzy, 124 Vt. 222, 224-225, 202 A.2d 267. We next consider whether there is a substantial question of law affecting the merits of the case involved in the proceedings below.

Such a question is presented, we believe, by the facts presented and the wording of the statutes involved. The record makes evident that the respondent refused to submit to the test while under arrest only for public intoxication, and not while under arrest for any violation of the law involving operating...