State v. Nash

• Decision Date: 25 October 2019
• Docket Number: No. 2018-286,2018-286
• Citation: 2019 VT 73
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Henry Nash

2019 VT 73

State of Vermont v. Henry Nash

No. 2018-286

Supreme Court of Vermont

June Term, 2019

October 25, 2019

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Windham Unit, Criminal Division

Michael R. Kainen, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. Defendant appeals drug- and alcohol-related probation conditions arising from his conviction for grossly negligent operation of a motor vehicle. Defendant argues that these conditions are not reasonably related to his crime or to his rehabilitation. He also argues that two conditions—the random drug and alcohol testing conditions—violate Article 11 of the Vermont Constitution and the Fourth Amendment to the United States Constitution and should either be stricken or amended. We conclude that defendant failed to properly preserve his objections to the alcohol-related conditions and to the constitutional question, and we therefore decline to review them for the first time on appeal. We affirm the imposition of the drug condition prohibiting defendant from possessing unprescribed, regulated drugs, because the condition prohibits illegal conduct. However, we strike the random drug testing in Condition M and strike language related to drug screening treatment from Condition 3 because it is not reasonably related to defendant's circumstances or conviction.

¶ 2. The following facts are, unless otherwise noted, undisputed and supported by the record. See State v. Ramsay, 146 Vt. 70, 79, 499 A.2d 15, 21 (1985) ("On appeal, defendant bears the burden to show that materially inaccurate information was relied upon by the sentencing court."); Reporter's Notes—1980 Amendment, V.R.Cr.P. 32 ("[T]he [sentencing] court may consider unsworn information from a variety of sources, including the [Presentence Investigation Report] and in-court or out-of-court statements of . . . officials who have had contact with [the defendant].").

¶ 3. One evening in October 2017, defendant crashed his car into a tree. A state trooper responded to the scene along Route 100 near Londonderry. Defendant explained to the trooper that he had caught himself nodding off while driving to meet a friend for dinner. After turning his car around to return home, according to defendant, he contemplated pulling over to rest. But he did not pull over. He subsequently fell asleep while driving and awoke to the airbags deploying upon his crashing into the tree. Defendant told the trooper that he had taken antibiotics earlier that day, which he thought may have aggravated his fatigue. Although defendant also admitted to drinking three beers, he reported that he had finished the last one several hours before the accident. Defendant also told the trooper that he had been convicted of driving under the influence of alcohol (DUI) in 2005 and his license had only been reinstated one month before this crash, after being suspended for more than twelve years.

¶ 4. Observing defendant, the trooper noted signs consistent with alcohol intoxication and attempted to conduct roadside testing to assess defendant's degree of impairment.¹ But,defendant's back had been injured in the crash, which interfered with his ability to perform the tests. After declining to provide a preliminary breath sample, defendant was taken to the hospital for medical treatment. At the hospital, defendant consented to an evidentiary blood draw to test for alcohol or drugs. A sample of defendant's blood was taken about three-and-a-half hours after the crash. It was tested for alcohol by the laboratory, and, according to the report, any amount of ethanol in defendant's blood at the time of the blood draw was below the laboratory's reporting threshold. The trooper never requested that defendant's blood sample be tested for drugs, and it was never so tested.

¶ 5. The State initially charged defendant with one count of DUI second offense, 23 V.S.A. § 1201(a)(2), and one count of careless or negligent vehicle operation, 23 V.S.A. § 1091(a). The parties then entered into a plea agreement under the following terms: the DUI charge was amended to a charge of grossly negligent operation, 23 V.S.A. § 1091(b), to which defendant pleaded guilty. The State dismissed the charge of careless and negligent operation. At a contested sentencing hearing, the State submitted evidence establishing that defendant had four prior DUI convictions: two from the late 1970s and two in 2005. Defense counsel submitted into evidence the blood-test results and a medical record confirming defendant's back fracture.

¶ 6. The State conceded that it could not prove beyond a reasonable doubt that defendant was impaired by drugs or alcohol when defendant crashed his car, which was why the State dismissed the DUI charge. Still, it argued for the court to find that defendant's use of drugs and alcohol played a role in causing the crash for several reasons: defendant had four prior DUI convictions; he admitted that he drank three beers several hours before the crash; the responding trooper observed signs in defendant at the scene consistent with alcohol intoxication; defendant admitted that he had taken antibiotics and suggested that this medication may have contributed to his drowsiness; drugs and alcohol, "especially combined," often cause drowsiness; and the negative blood-test result for alcohol, taken more than three hours after the accident, did not rule out the possibility of alcohol impairment at the time of the crash.² Thus, the State requested a sentence of eighteen to twenty-four months of incarceration, all suspended except thirty days to serve and probation conditions relating to drugs and alcohol.

¶ 7. Defense counsel countered by arguing that the court should infer from defendant's statement and the blood test—which did not establish that he had alcohol in his system—that defendant had a few beers early in the day, showered, and then drove to meet a friend for dinner with a blood-alcohol level of zero. As for drug impairment, defense counsel argued that defendant's admission to using antibiotics should be discounted because at the time of the admission he had been significantly injured. Moreover, use of antibiotics is not illegal if prescribed and, counsel suggested that antibiotics would not have impaired defendant's ability to drive. Defense counsel argued further that the theory that this case involved drug use is contradicted bythe trooper's decision not to test defendant's blood sample for drugs. Counsel requested that defendant be fined, and, if the court believed supervision was needed, that he be placed on administrative probation.

¶ 8. The sentencing court found that the precise extent of defendant's impairment was unclear, but defendant was overtired, consumed alcohol on the day of the crash, and had multiple prior convictions for driving while intoxicated. The court observed that defendant was fortunate to have only hit a tree and suffered relatively mild injuries. He could have killed someone. In fashioning a sentence, the court explained that based on defendant's prior record and the potential involvement of drugs or alcohol in this case, the court could not "ignore what I think is [defendant's] need for alcohol and drug programming." This programming, the court explained, would serve both rehabilitative and public-safety interests.

¶ 9. The court sentenced defendant to a $400 fine, six to eighteen months of incarceration, all suspended except two days, eighteen months of probation, and a series of probation conditions, which included the following relating to drugs and alcohol:

Condition L. You must not buy, have or use any regulated drugs unless they are prescribed by a doctor.

Condition M. Your probation officer or any other person authorized by your probation officer can require you to have random urinalysis testing.

[Special Condition] 1. You must not buy, have or drink any alcoholic beverages; you must submit to any alcosensor test or any other alcohol test[.]

[Special Condition] 3. You must have alcohol and/or drug screening. If the screening shows that counseling and/or treatment is needed, you must attend and participate in whatever counseling and/or treatment your probation officer tells you to do. You must complete counseling and/or treatment to your probations officer's satisfaction.

[Special Condition] 4. You must allow any treatment or counseling program to tell your probation officer and the court about your attendance and participation in the program.

¶ 10. With respect to the drug conditions, the court explained that Conditions L and M were necessary because "there is a suggestion of a history of substance abuse." The court acknowledged, however, despite this "suggestion," that whether defendant had taken drugs on the day of the incident was "not clear." Thus the court noted the possibility that, after an initial screening, defendant might be adjudged to not have a drug problem. Defense counsel objected to the imposition of these drug-related conditions.

¶ 11. As for the alcohol conditions, in imposing Special Conditions 1, 3, and 4, the court noted that defendant had several prior convictions for driving while impaired by alcohol. And the court explained that defendant "had been drinking alcohol at the time of the crash," although it could not "stat[e] whether he was or was not under the influence." Thus, the court concluded that defendant...