State v. Nemkovich

• Decision Date: 01 May 1998
• Docket Number: 97-187,Nos. 97-186,s. 97-186
• Citation: 168 Vt. 8,712 A.2d 899
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. David M. NEMKOVICH.

Page 899

712 A.2d 899

STATE of Vermont v. David M. NEMKOVICH.

Nos. 97-186, 97-187.

Supreme Court of Vermont.

May 1, 1998.

Robert L. Sand, Department of State's Attorneys, Montpelier, and Lauren Bowerman, Chittenden County State's Attorney, and John R. Treadwell, Deputy State's Attorney, Burlington, for Plaintiff-Appellant.

Robert Andres, Burlington, for Defendant-Appellee.

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, Chief Justice.

In this DUI prosecution, the district court suppressed evidentiary breath test results in both the civil-license-suspension and criminal proceedings on grounds that the police had obtained an invalid waiver of defendant's Miranda rights, thus tainting defendant's subsequent written waiver of his right to counsel under the implied consent statute. The State brings interlocutory appeal of the suppression order in the criminal case and a direct appeal of judgment for defendant in the civil proceeding, both cases consolidated here. We reverse.

Upon notification that a vehicle was disabled on the interstate, a Vermont State Trooper was dispatched to the scene and approached defendant's vehicle, observing that it was in a ditch beside an exit ramp roadway. The trooper found defendant sitting in the driver's seat with the lights on and the engine running. He detected a strong odor of intoxicants on defendant's breath. The trooper also observed that defendant's eyes were watery and bloodshot, and that his speech was a "little slow." Defendant stated that he had consumed two drinks prior to driving and one drink while driving. A road side Alco-Sensor test indicated that defendant's blood-alcohol level was above the legal limit.

The trooper then took defendant to police barracks, where he was processed for DUI. The trooper used a "DUI processing form," which consists of several pages of written instructions and questions that are read to the motorist, as well as signature lines for both the processing officer and the motorist. Reading from the second page of the processing form, the trooper advised defendant of his Miranda rights, including "the right to talk to a lawyer before questioning and to have a lawyer present with you during questioning." When asked if he understood the rights as read to him, defendant apparently responded: "Sure," and then signed the waiver portion of the second page. The trooper then heard defendant utter the following: "No idea why not to speak," followed by a pause, and then "to a lawyer." The trooper noted these utterances on the processing form, but testified to the district court that his clear impression was that defendant did not wish to speak with an attorney and was in fact willing to speak with the trooper. The trooper continued with the DUI processing by informing defendant of his implied consent rights, which the trooper read from page three of the processing form. Among the specific information communicated was that "[y]ou have the right to talk with a lawyer before deciding whether or not to submit to a[n evidentiary breath] test." Defendant indicated his understanding of the rights and that he did not wish to speak to an attorney before deciding whether to submit to the test. Defendant signed the section on page three indicating that he did not wish to speak with counsel before taking the test, then agreed to provide a breath sample. The test result indicated defendant's blood-alcohol content was over the legal limit.

Defendant moved the district court to suppress the breath test results in both the criminal and civil-license-suspension proceedings. In making its initial determination that the State had failed to establish a valid waiver of defendant's Miranda rights, the court reasoned that defendant's utterance of "no idea why not to speak ... to a lawyer" was inconsistent with a knowledgeable, voluntary waiver of those rights. According to the court, the invalid waiver "could not be eradicated simply by reading the same rights over again, or similar rights over again, on page three." Ordinarily, the court observed, the State's introduction of defendant's written waiver of his implied consent rights would establish a valid waiver of those rights, but that under the circumstances, the subsequent waiver was tainted by the earlier invalid waiver. Thus the court suppressed the evidentiary test results in both the criminal and civil license suspension cases, and granted judgment for defendant in the civil case. The State appeals.

The central issue in this case is whether an invalid waiver of Miranda rights taints a waiver of the statutory right to consult an attorney prior to submitting to an evidentiary breath test.

The State's answer is that courts should undertake an independent analysis of the validity of an individual's purported waiver of Miranda rights on the one hand and waiver of implied consent rights on the other. It asserts that the uncontroverted evidence in this case establishes that defendant understood his right to consult with an attorney concerning the breath test, and that defendant signed a written waiver of that right. Thus, according to the State, even if this Court agrees that defendant did not make a valid waiver of his Miranda rights, the evidence does not support the conclusion that his subsequent waiver of implied consent rights was invalid. We agree. ^*

Vermont's implied consent statute provides that a person who is requested to take an evidentiary breath test has a right to consult with an attorney prior to deciding whether to take the test. See 23 V.S.A. § 1202(c). The decision whether to take a breath test is an extremely important one to the motorist, and should "not be lightly decided." State v. Carmody, 140 Vt. 631, 636, 442 A.2d 1292, 1295 (1982). Although § 1202 is silent on the matter, this Court has recognized a motorist's option to waive consultation with counsel prior to deciding whether to take the test. See, e.g., State v. George, 161 Vt. 615, 616, 640 A.2d 26, 27 (1994); State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991). There exists a presumption against an individual's waiver of the right to counsel, and the State has the burden of proving a "knowing and intelligent waiver." Cf. State v. Hoffman, 148 Vt. 320, 322, 532 A.2d 577, 578 (1987). We will not recognize a waiver of the right to counsel in the absence of substantial evidence to support a finding of waiver. Cf. id. (presumption exists in prosecution for DUI against waiver of right to independent blood test under 23 V.S.A. § 1202(c); State has burden of proving waiver with substantial evidence).

We do not take issue with the district court's premise that law enforcement officers may not overcome an invalid waiver of Miranda rights simply by asking the detainee again if he wishes to waive those rights. See Smith v. Illinois, 469 U.S. 91, 97, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (detainee's post-request responses to further interrogation may not provide basis to cast doubt on validity of an initial request to consult with counsel). Where we differ with the district court is in the conclusions to be drawn from this premise. In this case the trooper was not asking defendant again if he wished to waive his Miranda rights, but was making a wholly different inquiry regarding defendant's right to counsel under the implied consent statute. As this Court has recognized before, the rights secured under Miranda and those secured under the implied consent statute serve...