State v. Perley

• Decision Date: 14 August 2015
• Docket Number: No. 13–480.,13–480.
• Citation: 129 A.3d 93
• Parties: STATE of Vermont v. Timothy P. PERLEY.
• Court: Vermont Supreme Court

129 A.3d 93

STATE of Vermont

v.Timothy P. PERLEY.

No. 13–480.

Supreme Court of Vermont.

Aug. 14, 2015.

William H. Sorrell, Attorney General, and Sarah Katz and John Treadwell, Assistant Attorneys General, Montpelier, and James A. Hughes, Franklin County State's Attorney, St. Albans, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Sidney Wilson, Law Clerk (on the Brief), Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

EATON, J.

¶ 1. Defendant appeals from his conviction for refusing to submit to an evidentiary test, having previously been convicted of driving under the influence. He argues that the court should have granted his motion for judgment of acquittal because the State failed to prove the "reasonableness" of the State's request for an evidentiary breath test beyond a reasonable doubt. We affirm.

¶ 2. Defendant was charged with numerous crimes in March 2013, including: leaving the scene of an accident; violating conditions of release; operating with a suspended license; driving under the influence (DUI), third offense; and refusing to submit to an evidentiary test. Defendant pled nolo contendere to the first three charges.

¶ 3. In July 2013, defendant moved to dismiss the DUI # 3 and the test-refusal charges under Vermont Rule of Criminal Procedure 12(d) for lack of a prima facie case. Defendant argued that the State lacked substantial admissible evidence that he had consumed alcohol at the time he was observed operating a vehicle. Given this, he argued that the DUI # 3 charge must be dismissed. For the same reason, defendant asserted that the test-refusal charge must be dismissed because the officer lacked "reasonable grounds" to believe that he was operating while intoxicated.

¶ 4. In an August 2013 entry order, the court granted defendant's motion in part and denied it in part. It found as follows. The State alleged that at 12:05 p.m. on the date in question, defendant was observed operating a motor vehicle on a public highway and he was involved in a motor vehicle accident in Enosburg. Defendant fled the scene, and police finally located him at 2:00 p.m. outside the courthouse in St. Albans, exiting his father's car. Defendant showed signs of intoxication and he was arrested.

¶ 5. The trial court found that, despite the inferences that might be drawn from defendant's refusal to submit a breath sample, the State did not argue that it had substantial admissible evidence to support the DUI # 3 charge. For this reason, the court dismissed the DUI # 3 charge. As to the test-refusal charge, the court found sufficient evidence to show that defendant refused a law enforcement officer's reasonable request for an evidentiary test where the officer had reasonable grounds to believe that the person was driving under the influence. The court found that the officer had information that defendant was operating a motor vehicle in a negligent manner, that he struck another vehicle, fled from the scene and nearly struck a town plow truck and another vehicle in the process. A witness estimated that defendant was driving approximately 70 mph on a narrow two-lane highway. The officer looked for defendant at his residence, but no one was there, although the officer noticed house keys hanging from the outside lock. Approximately two hours later, defendant arrived at the courthouse as a passenger in his father's car and was approached by police. Defendant showed signs of intoxication. Under these circumstances, the court concluded that the officer had much more than "reasonable grounds" to request that defendant submit a breath sample for testing. It thus denied the motion to dismiss the test-refusal charge.

¶ 6. A jury trial followed. Various witnesses testified to the events on the day in question. The arresting officer also testified. He explained that on the day in question he was on duty and received word of a motor vehicle crash. He learned that defendant had fled the scene. A description of defendant's car was broadcast over the police radio. The officer patrolled the area looking for defendant and ultimately found him at approximately 2:00 p.m. at the courthouse. At that time, the officer smelled a strong odor of intoxicants emanating from defendant and observed defendant's bloodshot watery eyes. The officer did not see any alcohol containers in defendant's father's car. Defendant was arrested for leaving the scene of an accident, suspicion of DUI, and other related charges. The officer explained that he suspected defendant of DUI because a witness had put defendant at the scene of an accident at approximately noon, and when he was finally located two hours later, defendant showed obvious signs of impairment.

¶ 7. The officer then described processing defendant for suspicion of DUI at the police barracks. He read the DUI processing form to defendant. He informed defendant of the potential consequences of refusing a breath test. He asked defendant if he would like to speak with a lawyer before deciding to submit to a test. Defendant responded by asking if his attorney Mike Ledden was there. The officer said that Mr. Ledden was not there and asked defendant if he wanted to be put in contact with a public defender. Defendant said no. Defendant then refused to take an evidentiary breath test and the officer printed out a DUI refusal ticket.

¶ 8. When asked at trial how he knew that Mr. Ledden was not at the police barracks, the officer explained that it was unusual to have an attorney at the police barracks and it would have been known if one was present. He further explained that there were dispatchers at the front windows of the police barracks and it was the dispatchers' general practice to let an officer know if an attorney arrived.

¶ 9. On cross-examination, the officer indicated that he had decided to request a breath test based on defendant's apparent intoxicated state at the courthouse and not based on the fact that defendant had left the scene of the accident. The officer also noted that when he found defendant at the courthouse, defendant walked away from him, stating that he was going to speak with Mike Ledden, who was defendant's attorney for another case being heard at the courthouse that day. The officer stated that at that point he could not just let defendant walk away and defendant was taken into custody. The officer reiterated that he had offered to contact an attorney for defendant during the DUI processing, and that aside from asking if Mike Ledden was at the police barracks, defendant did not ask to be put in contact with Mike Ledden or ask the officer to call Mike Ledden. Defendant did not put on any evidence.

¶ 10. At the close of the evidence, defendant moved for a judgment of acquittal. He argued that there was no direct evidence to show that he had consumed alcohol before the car accident, and noted that police did not locate him until an hour and fifty-five minutes after the accident was called in. Defendant pointed to the officer's trial testimony that, in deciding to request the breath sample, the officer had not factored in defendant's decision to leave the scene of the accident. Defendant maintained that the officer knew only that he had been driving at 12:05 p.m., and that by 2:00 p.m., he had consumed alcohol.

¶ 11. The court denied the motion. It explained that even if it looked at the definition of probable cause, which it believed would be required when defendant was arrested, that did not require a "more likely than not" standard as articulated by this Court. The court recognized the possibility, as developed by defendant, that defendant consumed all of his alcohol after the accident occurred. It reasoned, however, that neither the State nor the officer needed to exclude that possibility in determining reasonable grounds because probable cause did not require the situation to be more likely than not. The court concluded that there were reasonable grounds to request the test, and the State clearly met the remaining elements of the crime as well. The court thus denied defendant's motion for judgment of acquittal. The jury found defendant guilty, and this appeal followed.

¶ 12. Defendant first argues that the State failed to prove that the officer had reasonable grounds to believe that he was operating under the influence. Defendant maintains that there was no evidence as to when he consumed alcohol or that his consumption of alcohol impaired his driving. He argues that given the delay between the accident and his arrest, no reasonable juror could conclude that the officer had reasonable grounds to request a breath test.

¶ 13. Defendant also asserts that the State failed to meet a different element of the crime—that the officer's request for a breath sample was "reasonable"—given the lapse of time between the accident and the request and because the officer "interfered" with his right to consult with an attorney prior to requesting an evidentiary test. These arguments are raised for the first time on appeal and as defendant neither argues nor shows any plain error, we do not address them. See State v. Emmi, 160 Vt. 377, 380, 628 A.2d 939, 941 (1993) (argument not raised in trial court will not be considered for first time on appeal, absent plain error).^*

¶ 14. The officer testified that when he first encountered defendant near the courthouse and began to question him, defendant walked away saying that he was going to go talk with his lawyer, Mike Ledden. The officer knew that Mike Ledden, a public defender, was defendant's lawyer in another matter. At that point, the officer arrested defendant, and defendant was transported to the police barracks for processing. During the ensuing DUI processing, the officer asked the defendant whether he wanted to speak with a lawyer, and defendant responded with a question: "Is Mike Ledden here?" Assuming that he would know if there was a lawyer at the...