State v. Lund

475 A.2d 1055, 144 Vt. 171, 1984 Vt. LEXIS 430

• Court: Supreme Court of Vermont
• Decided: February 3, 1984
• Docket: 82-047
• Status: Published

Opinions

Underwood, J.

The defendant was charged with the crimes of driving while under the influence of intoxicating liquor [DUI], 23 V.S.A. § 1201(a) (2), and disorderly conduct, 13 V.S.A. § 1026(1). He was found guilty by a jury on both counts, and filed timely appeals from the judgments thereon. As grounds for appeal the defendant claims, inter alia, that the trial court erred in not granting his motion for judgment of acquittal notwithstanding the verdict because (1) the law enforcement officer who arrested him did not request that he submit to a breath test, and (2) the State failed to prove the essential elements of disorderly conduct. We agree with the former contention but disagree with the latter. As such, we reverse the defendant’s DUI conviction and affirm his disorderly conduct conviction.

Briefly stated, the facts are as follows. In Orange County, the sheriff’s office and the local jail are each located in the sheriff’s residence. On October 25, 1981, the defendant drove to this office in order to furnish bail for a friend. The sheriff observed the defendant drive into the parking lot from Route 113. The defendant drove forward and backed up three times before finally coming to a stop. The parking lot, which is thirty to forty feet wide and one hundred and ten feet long, was empty at the time.

The defendant and his young son entered the building. Once inside, the defendant grabbed the stairway bannister and put his hand on the wall to steady himself. He slowly made his way to the sheriff’s office, staggering the whole way. When he reached the office the sheriff identified himself. The defendant showed the sheriff $500 and said he was there to bail out a friend. During the exchange, the sheriff smelled a strong odor of alcohol on the defendant’s breath. He also noticed that the defendant’s speech was slurred and his eyes were bloodshot.

When the sheriff asked the defendant what he was doing at the jail in his inebriated state, the defendant replied with profanity. The sheriff then told the defendant that he was going to process him for DUI. He asked the defendant to sit down, but the defendant refused to do so. The sheriff then sat him down, but the defendant immediately stood up. This happened at least a dozen times. During this time the defendant kept making obscene remarks about the sheriff to his son.

Finally, the sheriff asked the defendant to empty his pockets. The defendant put the $500 bail money on the table. When the sheriff went to pick it up, the defendant attempted to bite his hand and started yelling further obscenities at him. The sheriff at that point decided to put the defendant in the lockup. In order to do so, he had to drag the struggling defendant into the cell.

At no time did the sheriff, who was certified to operate breath testing equipment, request that the defendant take a breath test, or explain to him that he had the right to have an independent chemical sample taken.

I.

The defendant argues that the sheriff was under a duty to request a breath sample. He maintains that Vermont’s implied consent law, 23 V.S.A. § 1202, imposes this obligation on the sheriff.

23 V.S.A. § 1202 (a) first implies the consent of every operator to a breath test. Next, it implies the consent of every operator to a blood test if the operator is unable to give a breath sample, or if breath testing equipment is not reasonably available. Finally, it provides in pertinent part that:

A sample of breath shall be taken only by a law enforcement officer who has been certified by the Vermont criminal justice training council to operate the breath testing equipment being employed whenever a state police officer or a law enforcement officer who has been certified by the Vermont criminal justice training council. . . has reasonable grounds to believe that the person was operating . . . any vehicle while under the influence of intoxicating liquor. (Emphasis added.)

The defendant submits that the words “shall” and “whenever” create a mandatory duty on the part of state police officers and law enforcement officers who have the proper certification to request a breath sample when they have reasonable grounds to believe a person was driving while under the influence of intoxicating liquor. We agree.

When interpreting statutes, the rule is to give effect to the intent of the legislature. Donoghue v. Smith, 119 Vt. 259, 263, 126 A.2d 93, 96 (1956). The principal purpose of the implied consent law is to encourage the availability of scientific evidence of the presence or absence of alcohol in a person’s blood. State v. Mastaler, 130 Vt. 44, 47, 285 A.2d 776, 778 (1971). “Essentially, the legislature has expressed its preference for the results of chemical analysis as a means to affirm or reject the uncertain opinion of a layman derived from observation of external symptoms of intoxication.” McGarry v. Costello, 128 Vt. 234, 240, 260 A.2d 402, 405 (1969).

In order to effectuate this intent, the legislature enacted 23 V.S.A. § 1202 in 1970. The statute was subsequently amended in 1973, 1977, and 1981. The 1973 act read as follows:

A sample of his breath or blood shall be taken whenever a state police officer, chief of police, or a police officer employed full-time by a town, city or incorporated village or sheriff has reasonable grounds to believe that the person was operating . . . any vehicle while under the influence of intoxicating liquor .... (Emphasis added.)

The meaning of this statute was plain on its face, and thus there was no need for construction. Rather, the courts were required to follow the statute according to its terms. State v. Lynch, 137 Vt. 607, 409 A.2d 1001 (1979). This Court did so in State v. Welch, 135 Vt. 316, 376 A.2d 351 (1977), where we held: “[T]he mandatory aspect of the word ‘shall’ as used throughout the Implied Consent Law concerns the duties of the investigating police officers. In those situations contemplated by § 1202 . . . the officers are required to make the request that the suspect operator submit to testing.” Id. at 321, 376 A.2d at 354-55.

The 1981 amendment of § 1202 does not eliminate this requirement. All it does is require that the breath testing equipment be administered only by law enforcement officers who have been certified by the Criminal Justice Training Council. The legislature did not remove the word “shall” from § 1202. Hence, we must assume that the legislature acted with full knowledge of the construction given to said word in the Welch case. Scott v. Saint Johnsbury Academy, 86 Vt. 172, , 84 A. 567, 568 (1912). Thus, the statute as presently-written still mandates that a test must be requested in certain instances, namely whenever a state police officer or a certified officer has reasonable grounds to believe that a person was driving while under the influence of intoxicating liquor.

In the instant case, the sheriff was properly certified and he had the requisite probable cause. Therefore, his failure to make the required request violated § 1202. As such, we are compelled to reverse, despite the fact that there is evidence to support the jury’s verdict that defendant was guilty of driving while under the influence.

We hold that a violation of the “duty to request” rule is grounds for automatic reversal, since this is the only way that this Court can effectively carry out the legislative mandate set out in § 1202. Anything short of this harsh remedy would eviscerate the rule. In this regard, we note that suppression of evidence would not be an effective remedy to a § 1202 violation, because there is no evidence to suppress. The officer’s failure to request a breath test does not produce incriminating evidence, but rather assures an absence of evidence.

The absent evidence, the breath test, may have been inculpatory or exculpatory. It will never be known which, because no test was requested. Therefore, a defendant can never show actual prejudice when an officer fails to request a breath test from him. Accordingly, we cannot require such a showing as a prerequisite to reversal. Rather, the fact that the absent evidence might have been favorable to the accused is sufficient for us to hold that the possibility of prejudice exists whenever § 1202 is not complied with. In light of all this, we must reverse defendant’s DUI conviction and enter a judgment of acquittal as to that charge.

We note that this holding places no new burden on law enforcement agents. Section 1202 applies only to officers certified to administer a breath test. Those law enforcement agents not certified by the Vermont Criminal Justice Training Council to administer a breath test do not have an obligation under § 1202 to request a sample. Uncertified officers may still process suspects for violation of 28 V.S.A. § 1201(a) (2), driving under the influence, without requesting a breath sample. Under these circumstances, a prosecution could proceed only under subsection (a) (2) and not under subsection (a) (1). We are not requiring the State to gather evidence for the accused. The legislature has spoken, and it is not our job judicially to amend the statute and thereby frustrate the legislative intent. If, as the legislature has indicated, chemical evidence is more reliable than clinical evidence to support an arrest and prosecution of a DUI suspect, then the State should be gathering chemical evidence to buttress the officer’s claim of probable cause. If, coincidentally, the chemical test exonerates the DUI suspect, then the ends of justice are well served at the same time. The State should be just as interested in freeing the innocent as in convicting the guilty.

In instances where it is impossible for a qualified officer either to make the request of the defendant to give a breath or blood sample, or to secure a breath or blood sample of a DUI suspect, the State should be free to proceed to prosecute the suspect in the same manner as if the defendant had refused to submit to testing, or as if there were no personnel or facilities reasonably available to obtain a sample of the defendant’s breath or blood. It has long been the policy of this Court to avoid a construction of a statute “that will render the act ineffective or lead to irrational consequences.” Audette v. Greer, 134 Vt. 300, 302, 360 A.2d 66, 68 (1976); State v. Tierney, 138 Vt. 163, 165, 412 A.2d 298, 299 (1980).

The State is not limited to proceeding exclusively under 23 V.S.A. § 1201 (a) (1) when it intends to make use of the results of a chemical test for blood alcohol in order to convict a DUI suspect. 23 V.S.A. § 1201(a) (1) states:

(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway while:

(1) there is .10 per cent or more by weight of alcohol in his blood, or shown by analysis of his breath or blood____

Under this statute the court will charge the jury that if the admitted evidence of the blood test result is .10 per cent or more by weight, it creates a permissive inference that the defendant was driving while under the influence of intoxicating liquor. If, however, the prosecutor elects to proceed under 23 V.S.A. § 1201 (a) (2), which states:

(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway while:

(2) under the influence of intoxicating liquor;

he cannot avail himself of the presumption he would be entitled to have raised under a prosecution pursuant to 23 V.S.A. § 1201(a) (1), even where the evidence admitted at trial demonstrates a chemical test equal to or in excess of .10 per cent by weight of alcohol in the blood. However, there is no restriction imposed by § 1201(a) (2) which limits the State's proof to just clinical evidence of DUI. The State may offer clinical evidence to further buttress the chemical test, or under certain circumstances only clinical evidence.

Finally the State always has the option to proceed under both § 1201 (a) (1) and § 1201 (a) (2) when it is relying on a chemical test, but the defendant can be convicted of only one of these offenses. State v. Coulombe, 143 Vt. 631, 633, 470 A.2d 1179, 1181 (1983).

II.

The defendant next argues that the State failed to prove the essential elements of disorderly conduct. In this regard, he points out that he was charged with violating 13 V.S.A. § 1026 (1), which states, in part, that:

A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:

(1) Engages in fighting or in violent, tumultuous or threatening behavior . .. shall be imprisoned for not more than 60 days or fined not more than $500.00 or both.

The elements of this offense are (1) engaging in tumultuous behavior, and (2) doing so with the intent to cause public inconvenience or annoyance. State v. Pickett, 137 Vt. 336, 339, 403 A.2d 272, 274 (1979). The defendant submits that since the only people present during the incident in question besides himself were the sheriff, the defendant’s son, and a prisoner in one of the cells, these elements were not met.

The defendant argues that the first element is not met because tumultuous behavior can only occur when a crowd of people are present. While it is true that the word tumult may refer to the commotion and agitation of a large crowd, it has also been defined as a “violent outburst.” Webster’s New International Dictionary at 2733 (1961). A crowd of people is not the essence of a tumult. In any event, there were three persons privy to the defendant’s outburst. This certainly would satisfy any “crowd” requirement.

With regard to the second element, the defendant repeats his above argument. He maintains that since no members of the public were present, the intent to cause public inconvenience and annoyance was not made out. Once again, the defendant’s argument is factually flawed. Members of the public were present. Even if this were not so, the defendant’s argument would fail. Public is defined as a place “open to common or general use.” Webster’s New International Dictionary at 2005 (1961). A sheriff’s office, without question, comes within this definition. Contrary to the defendant’s contention, the word public refers to the place the tumultuous behavior occurred, not who was present at the time.

Reversed as to the charge of driving while intoxicated and judgment of acquittal entered thereon; judgment affirmed as to the charge of disorderly conduct.