State v. Fuller

660 A.2d 302, 163 Vt. 523, 1995 Vt. LEXIS 51, 1995 WL 242393
CourtSupreme Court of Vermont
DecidedApril 14, 1995
Docket94-441
StatusPublished
Cited by21 cases

This text of 660 A.2d 302 (State v. Fuller) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fuller, 660 A.2d 302, 163 Vt. 523, 1995 Vt. LEXIS 51, 1995 WL 242393 (Vt. 1995).

Opinions

Dooley, J.

The State appeals an order of the Caledonia District Court suppressing the results of a breath test because defendant did not execute a written waiver of his right pursuant to 23 V.S.A. § 1202(c) to consult an attorney prior to submitting to the test. We reverse.

On December 31, 1993, a police officer stopped defendant at a sobriety checkpoint in West Danville, Vermont after observing defendant operate his vehicle erratically. The officer decided to process defendant for driving while under the influence of intoxicating liquor (DUI) after detecting the smell of alcohol on his breath, and observing his slurred speech and inability to perform field dexterity tests. See 23 V.S.A. § 1201. The officer placed defendant in custody and interrogated him. Before doing so, the officer notified defendant of his right to be represented by a lawyer and the right to appointment of such a lawyer if defendant was a needy person. Thereafter, defendant signed a written waiver of these rights; this waiver is not challenged here. The waiver stated in part, “Knowing my rights, I agree to waive them.” Following the waiver of rights, the officer asked defendant a series of questions, which defendant answered.

Following this questioning, the officer advised defendant of his rights under Vermont’s implied consent statute, 23 V.S.A. § 1202, including defendant’s right to consult with an attorney prior to deciding whether to submit to a breath test. See id. § 1202(c). This was done by reading statements from a form and checking a box each time the officer covered a subject or received a response from defendant. Defendant orally waived his right to consult with an attorney. The officer noted this waiver by checking the appropriate box on the form. After all the boxes were checked, defendant signed the form.1 Thereafter, defendant took the breath test.

Defendant asked the court to suppress the breath test results during the civil suspension hearing held pursuant to 23 V.S.A. § 1205. On August 10, 1994, the trial court ordered that the results be suppressed. It reasoned that the implied consent statute, when read [526]*526in pari materia with 13 V.S.A. §§ 5234 and 5237 (provisions of the public defender act), required a written waiver of a defendant’s right to consult counsel as provided in the implied consent law. The court concluded that breath test results obtained in the absence of such a waiver must be suppressed. The State appealed.

The State’s two principal arguments on appeal are that (1) a written waiver of the right to counsel is not required if the right is conferred by a statute other than the public defender act, and (2) even if a written waiver is required, defendant executed a written waiver in this case. In the context of this case, we agree with the first argument and do not reach the second one.

Vermont’s implied consent statute gives a person from whom a breath test has been requested by a law enforcement officer a right to consult an attorney prior to deciding whether to take the test. 23 V.S.A. § 1202(c). Subsection (d) of § 1202 requires that the officer inform the person of this right at the time the officer requests the test. A person who is asked to take a breath test must also be informed of the right to consult with an attorney at public expense. State v. Gracey, 140 Vt. 199, 200-01, 436 A.2d 741, 743 (1981). In this case, the parties do not dispute that defendant was adequately informed of his rights; they do disagree, however, about how defendant may waive those rights.

Although it grants a right to counsel, § 1202 contains little detail about that right. When we have been called upon to define the nature of the right, we have often looked to the public defender act, specifically § 5234 of that act, reasoning that 23 V.S.A. § 1202 and 13 V.S.A. § 5234 should be read in pari materia.2 See State v. Garvey, 157 Vt. 105, 106, 595 A.2d 267, 268 (1991); Gracey, 140 Vt. at 200-01, 436 A.2d at 743; State v. Duff, 136 Vt. 537, 539-40, 394 A.2d 1145, 1146 (1978). The critical decision in this line is Duff, where we held that the [527]*527person being processed for DUI must be informed “of his right to consult with counsel before deciding whether to submit to a chemical test.” Duff, 136 Vt. at 539, 394 A.2d at 1146. Although the implied consent law did not explicitly contain this requirement, we drew it from the public defender act because only with such a requirement “can the right to consult an attorney be adequately safeguarded.” Id. at 540, 394 A.2d at 1146. By similar reasoning, we required in Gracey that the person being processed for DUI be informed of the availability of counsel at public expense. Gracey, 140 Vt. at 200-01, 436 A.2d at 743.

Before we examine the application of this analysis to this case, two background points are important. First, the rights contained in the public defender act are not directly applicable to the right in the implied consent law to consult counsel before deciding whether to take a blood-alcohol test. The public defender act implements the general right to counsel provided by the Sixth Amendment to the United States Constitution as well as Article 10 of Chapter I of the Vermont Constitution. The right to consult with counsel contained in the implied consent law is purely statutory, created by 23 V.S.A. § 1202(c). It is not constitutionally mandated because the decision whether to take the breath test is not a critical stage of the prosecution. See State v. Lombard, 146 Vt. 411, 414, 505 A.2d 1182, 1184 (1985). Nor does the right to the advice of counsel created in Miranda v. Arizona, 384 U.S. 436 (1966), apply because the evidence sought is physical rather than testimonial. See Veilleux v. Springer, 131 Vt. 33, 42, 300 A.2d 620, 626 (1973).

Because of their different purposes, the right to counsel in the public defender act and the right to counsel in the implied consent law have different triggers. The former applies only when the defendant is “detained” or charged and only with respect to “conditions in which a person having his own counsel would be entitled to be so represented.” 13 V.S.A. § 5234(a). The latter applies whenever a person is asked to take a blood-alcohol test irrespective of whether the person is detained at the time.

The second background point is that in pari materia is a statutory construction technique, and not a rule of law. Thus, it is an “aid” to construction, to be relied upon where appropriate, see State v. Desjardins, 144 Vt. 473, 475, 479 A.2d 160, 161 (1984); State v. Baldwin, 140 Vt. 501, 511, 438 A.2d 1135, 1140 (1981), but not where it leads to a result not consistent with legislative intent. See Finberg [528]*528v. Murnane, 159 Vt. 431, 436, 623 A.2d 979, 982 (1992).

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Cite This Page — Counsel Stack

Bluebook (online)
660 A.2d 302, 163 Vt. 523, 1995 Vt. LEXIS 51, 1995 WL 242393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fuller-vt-1995.