Gilman v. Commissioner of Motor Vehicles & Vermont District Court, Unit No. 3

583 A.2d 86, 155 Vt. 251, 1990 Vt. LEXIS 192

• Court: Supreme Court of Vermont
• Decided: October 5, 1990
• Docket: 89-019
• Status: Published

Opinions

Allen, C.J.

The record contains ample support for the conclusion that defendant refused to submit to a breath test within the meaning of 23 V.S.A. § 1202. To effect a refusal under 23 V.S.A. § 1202(c), a person need only conduct himself in a manner which would lead a reasonable person in the trooper’s position to believe that the person understood he was requested to submit to a breath test and manifested an unwillingness to do so. Stockwell v. District Court, 143 Vt. 45, 50, 460 A.2d 466, 469 (1983). A person need not show refusal by an express, affirmative statement. Id. at 50, 460 A.2d at 468. In the absence thereof, an officer may infer a refusal from the totality of the circumstances. Id.

The trooper informed defendant at the outset that he believed defendant had been operating a vehicle under the influence of intoxicating liquor and that he was required to ask defendant to give an evidentiary sample of his breath. The trooper then informed defendant of his rights under § 1202, including his right to consult an attorney at state expense. It is unnecessary to reach the issue of whether the trooper afforded defendant his right to counsel because, while defendant initially expressed a desire to contact a public defender, he later indicated a preference for Mr. Illuzzi. Defendant explained that he had “always done business” with him, could arrange to make payments for his services, and had no intention of calling any lawyer other than Mr. Illuzzi. The trial court found that after the defendant attempted to call Mr. Illuzzi he refused to make any calls to other attorneys, stating that “he had made his call, that he wanted Attorney Illuzzi and no others.” This finding is amply supported by the testimony of the officer that defendant “said he didn’t want to make any more calls. He didn’t want to call any other attorney. He wanted Mr. Illuzzi.”

The trooper knew that the lawyer defendant had sought to consult was not available and that contact within the statutory time period would not take place because defendant had left a message instructing the lawyer to contact him at his home. Defendant’s stance that he would take the test only after consulting a lawyer whom he knew to be unavailable was tantamount to a refusal. The superior court’s denial of the petition for extraordinary relief does not constitute an abuse of discretion.

Affirmed.