State v. Schmitt, No. 86-326

• Docket Nº: No. 86-326
• Citation: 554 A.2d 666, 150 Vt. 503
• Case Date: October 21, 1988
• Court: United States State Supreme Court of Vermont

Page 666

554 A.2d 666 150 Vt. 503 STATE of Vermont
v.
Michael A. SCHMITT. No. 86-326. Supreme Court of Vermont. Oct. 21, 1988.

[150 Vt. 504] Thomas D. Anderson, Lamoille County Deputy State's Attorney, Hyde Park, for plaintiff-appellee.

Robert P. Davison, Jr., P.C., Stowe, for defendant-appellant.

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Before [150 Vt. 503] ALLEN, C.J., HILL, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

[150 Vt. 504] BARNEY, C.J. (Ret.), Specially Assigned.

Defendant was found guilty of operating a motor vehicle while under the influence of alcohol. In this appeal, he claims that the State violated several of his constitutional rights, under both the federal and Vermont constitutions, and he objects to the trial court's jury instruction on the meaning of driving under the influence. We affirm.

The facts are not in dispute and may be stated briefly. On April 1, 1986, a Morristown police officer on patrol duty received a complaint of an erratic driver headed north on Route 100 towards Morrisville. The tip described the vehicle as a brown Saab and gave its license number. The officer, Richard Keith, positioned himself about a mile south of Morrisville on Route 100. When Mr. Schmitt drove by in a car matching the description, Officer Keith followed him north into the village. The officer observed the vehicle to be traveling slowly, weaving within its lane, and crossing over the center line as it rounded a curve. At the traffic light in Morrisville, the officer noted that the car came to a stop only under the light in the middle of the intersection.

Officer Keith then activated his blue lights and pulled the Saab over. Mr. Schmitt emerged, walked back to the cruiser, was asked for his license and registration, returned to his car for the documents, and returned to the cruiser. Officer Keith noticed that Mr. Schmitt was unsteady as he walked and that his breath smelled of intoxicants. He therefore asked Mr. Schmitt to have a seat in the cruiser and radioed for assistance.

[150 Vt. 505] Shortly thereafter, Morrisville Police Officer Russell Tribble arrived and attempted to have Mr. Schmitt perform several field sobriety tests. After initially refusing to cooperate, Mr. Schmitt performed and failed the test. Based on the test results and the defendant's appearance, Officer Tribble concluded that Mr. Schmitt was under the influence. Defendant was transported to the Morristown police station where he was read the Miranda warnings.

Defendant's motions to suppress were denied, and the results of the field sobriety tests as well as statements made to the police officers were introduced into evidence at his trial.

Defendant raises three issues on appeal. First, he claims that the trial court violated his rights under the Fifth Amendment to the United States Constitution and Chapter I, Article 10 of the Vermont Constitution when it admitted into evidence the results of the sobriety tests, administered while he was in custody but before he received the Miranda warnings. Second, he claims that the trial court violated his rights under the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution when it failed to suppress all evidence obtained after he was detained without a warrant. Finally, he claims that the trial court erred in its jury instruction on the definition of driving under the influence.

At the outset we note that defendant's arguments based on the Vermont Constitution are made for the first time on this appeal. It is well-settled, however, that claims raised initially on appeal will not be reviewed unless they amount to plain error. V.R.Cr.P. 52(b); State v. Ramsay, 146 Vt. 70, 75, 499 A.2d 15, 18 (1985). "We have frequently stated that plain error will be found only in a rare and extraordinary case where the error is an obvious one and so grave and serious as to strike at the very heart of a defendant's constitutional rights or adversely to affect the fair administration of justice. E.g., State v. Mecier, 145 Vt. 173, 178, 488 A.2d 737, 741 (1984); State v. Anderkin, 145 Vt. 240, 245, 487 A.2d 142, 144 (1984)." Ramsay, 146 Vt. at 75, 499 A.2d at 18. Defendant's state constitutional arguments--that the administration of the field sobriety tests and his detention without a warrant were in violation of the Vermont Constitution--are novel. The trial...