State v. Lund, No. 82-047

Docket NºNo. 82-047
Citation475 A.2d 1055, 144 Vt. 171
Case DateFebruary 03, 1984
CourtUnited States State Supreme Court of Vermont

Page 1055

475 A.2d 1055
144 Vt. 171
STATE of Vermont
Percy O. LUND.
No. 82-047.
Supreme Court of Vermont.
Feb. 3, 1984.

Page 1057

[144 Vt. 172] James D. McKnight, Orange County State's Atty., Chelsea, for plaintiff-appellee.

[144 Vt. 173] William J. Donahue of Otterman & Allen, P.C., Bradford, for defendant-appellant.

Before [144 Vt. 171] BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

[144 Vt. 173] UNDERWOOD, Justice.

The defendant was charged with the crimes of driving while under the influence of intoxicating liquor [DUI], 23 V.S.A. § 1201(a)(2), and disorderly conduct, 13 V.S.A. § 1026(1). He was found guilty by a jury on both counts, and filed timely appeals from the judgments thereon. As grounds for appeal the defendant claims, inter alia, that the trial court erred in not granting his motion for judgment of acquittal notwithstanding the verdict because (1) the law enforcement officer who arrested him did not request that he submit to a breath test, and (2) the State failed to prove the essential elements of disorderly conduct. We agree with the former contention but disagree with the latter. As such, we reverse the defendant's DUI conviction and affirm his disorderly conduct conviction.

Briefly stated, the facts are as follows. In Orange County, the sheriff's office and the local jail are each located in the sheriff's residence. On October 25, 1981, the defendant drove to this office in order to furnish bail for a friend. The sheriff observed the defendant drive into the parking lot from Route 113. The defendant drove forward and backed up three times before finally coming to a stop. The parking lot, which is thirty to forty feet wide and one hundred and ten feet long, was empty at the time.

The defendant and his young son entered the building. Once inside, the defendant grabbed the stairway bannister and put his hand on the wall to steady himself. He slowly made his way to the sheriff's office, staggering the whole way. When he reached the office the sheriff identified himself. The defendant showed the sheriff $500 and said he was there to bail out a friend. During the exchange, the sheriff smelled a strong odor of alcohol on the defendant's breath. He also noticed that the defendant's speech was slurred and his eyes were bloodshot.

When the sheriff asked the defendant what he was doing at the jail in his inebriated state, the defendant replied with profanity. The sheriff then told the defendant that he was going to process him for DUI. He asked the defendant to sit down, but the defendant refused to do so. The sheriff then sat him [144 Vt. 174] down, but the defendant immediately stood up. This happened at least a dozen times. During this time the defendant kept making obscene remarks about the sheriff to his son.

Page 1058

Finally, the sheriff asked the defendant to empty his pockets. The defendant put the $500 bail money on the table. When the sheriff went to pick it up, the defendant attempted to bite his hand and started yelling further obscenities at him. The sheriff at that point decided to put the defendant in the lock-up. In order to do so, he had to drag the struggling defendant into the cell.

At no time did the sheriff, who was certified to operate breath testing equipment, request that the defendant take a breath test, or explain to him that he had the right to have an independent chemical sample taken.


The defendant argues that the sheriff was under a duty to request a breath sample. He maintains that Vermont's implied consent law, 23 V.S.A. § 1202, imposes this obligation on the sheriff.

23 V.S.A. § 1202(a) first implies the consent of every operator to a breath test. Next, it implies the consent of every operator to a blood test if the operator is unable to give a breath sample, or if breath testing equipment is not reasonably available. Finally, it provides in pertinent part that:

A sample of breath shall be taken only by a law enforcement officer who has been certified by the Vermont criminal justice training council to operate the breath testing equipment being employed whenever a state police officer or a law enforcement officer who has been certified by the Vermont criminal justice training council ... has reasonable grounds to believe that the person was operating ... any vehicle while under the influence of intoxicating liquor. (emphasis added)

The defendant submits that the words "shall" and "whenever" create a mandatory duty on the part of state police officers and law enforcement officers who have the proper certification to request a breath sample when they have reasonable grounds to believe a person was driving while under the influence of intoxicating liquor. We agree.

[144 Vt. 175] When interpreting statutes, the rule is to give effect to the intent of the legislature. Donoghue v. Smith, 119 Vt. 259, 263, 126 A.2d 93, 96 (1956). The principal purpose of the implied consent law is to encourage the availability of scientific evidence of the presence or absence of alcohol in a person's blood. State v. Mastaler, 130 Vt. 44, 47, 285 A.2d 776, 778 (1971). "Essentially, the legislature has expressed its preference for the results of chemical analysis as a means to affirm or reject the uncertain opinion of a layman derived from observation of external symptoms of intoxication." McGarry v. Costello, 128 Vt. 234, 240, 260 A.2d 402, 405 (1969).

In order to effectuate this intent, the legislature enacted 23 V.S.A. § 1202 in 1970. The statute was subsequently amended in 1973, 1977, and 1981. The 1973 act read as follows:

A sample of his breath or blood shall be taken whenever a state police officer, chief of police, or a police officer employed full-time by a town, city or incorporated village or sheriff has reasonable grounds to believe that the person was operating ... any vehicle while under the influence of intoxicating liquor .... (emphasis added)

The meaning of this statute was plain on its face, and thus there was no need for construction. Rather, the courts were required to follow the statute according to its terms. State v. Lynch, 137 Vt. 607, 409 A.2d 1001 (1979). This Court did so in State v. Welch, 135 Vt. 316, 376 A.2d 351 (1977), where we held: "[T]he mandatory aspect of the word 'shall' as used throughout the Implied Consent Law concerns the duties of the investigating police officers. In those situations contemplated by § 1202 ... the officers are required to make the request that the suspect operator submit to testing." Id. at 321, 376 A.2d at 354-55.

The 1981 amendment of § 1202 does not eliminate this requirement. All it does is

Page 1059

require that the breath testing equipment be administered only by law enforcement officers who have been certified by the Criminal Justice Training Council. The legislature did not remove the word "shall" from § 1202. Hence, we must assume that the legislature acted with full knowledge of the construction given to said word in the Welch case. Scott v. Saint Johnsbury Academy, 86 Vt. 172, [144 Vt. 176] 175, 84 A. 567, 568 (1912). Thus, the statute as presently written still mandates that a test must be requested in certain instances, namely whenever a state police officer or a certified officer has reasonable grounds to believe that a person was driving while under the influence of intoxicating liquor.

In the instant case, the sheriff was properly certified and he had the requisite probable cause. Therefore, his failure to make the required request violated § 1202. As such, we are compelled to reverse, despite the fact that there is evidence to support the jury's verdict that defendant was guilty of driving while under the influence.

We hold that a violation of the "duty to request" rule is grounds for automatic reversal, since this is the only way that this Court can effectively carry out the legislative mandate set out in § 1202. Anything short of this harsh remedy would eviscerate the rule. In this regard, we note that suppression of evidence would not be an effective remedy to a § 1202 violation, because there is no evidence to suppress. The officer's failure to request a breath test does not produce incriminating evidence, but rather assures an absence of evidence.

The absent evidence, the breath test, may have been inculpatory or exculpatory. It will never be known which, because no test was requested. Therefore, a defendant can never show actual prejudice when an officer fails to request a breath test from him. Accordingly, we can not require such a showing as a prerequisite to reversal. Rather, the fact that the absent evidence might have been favorable to the accused is sufficient for us to hold that the possibility of prejudice exists whenever § 1202 is not complied with. In light of all this, we must reverse defendant's DUI conviction and enter a judgment of acquittal as to that charge.

We note that this holding places no new burden on law enforcement agents. Section 1202 applies only to officers certified to administer a breath test. Those law enforcement agents not certified by the Vermont Criminal Justice Training Council to administer a breath test do not have an obligation under § 1202 to request a sample. Uncertified officers may still process suspects for violation of 23 V.S.A. § 1201(a)(2), driving under the influence, without requesting a breath sample. Under these circumstances, a prosecution could proceed [144 Vt. 177] only under subsection (a)(2) and not under subsection (a)(1). We are not requiring the State to gather evidence for the accused. The legislature has spoken, and it is not our job judicially to amend the statute and thereby frustrate the legislative intent. If, as the legislature has indicated, chemical evidence is more reliable than clinical evidence to support an arrest and prosecution of a DUI suspect, then the State should be gathering chemical evidence to buttress the officer's claim of probable cause. If, coincidentally, the chemical test...

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