State v. Powers

2004 VT 39, 852 A.2d 605, 176 Vt. 444, 2004 Vt. LEXIS 105
CourtSupreme Court of Vermont
DecidedMay 7, 2004
DocketNo. 03-195
StatusPublished
Cited by5 cases

This text of 2004 VT 39 (State v. Powers) 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. Powers, 2004 VT 39, 852 A.2d 605, 176 Vt. 444, 2004 Vt. LEXIS 105 (Vt. 2004).

Opinion

Skoglund, J.

¶ 1. Defendant Edmund J. Powers appeals from a

Windham District Court judgment for the State in a civil suspension hearing. Defendant believed that his conversation with an attorney during a DUI processing was being recorded, and this belief prevented him from asking whether his prior arrests would affect his current charges. He claims that because of this belief, he was denied his statutory right to a meaningful consultation with an attorney before submitting to an evidentiary breath test. The district court ruled that even if defendant was inhibited, this inhibition did not prejudice his case. We conclude that defendant reasonably believed his conversation with an attorney was being unjustifiably monitored, and that this belief inhibited his conversation. We therefore hold -that defendant demon[446]*446strated the necessary causal nexus between the illegal police action and the evidence he sought to suppress. As a result, we reverse.

¶ 2. The trial court made the following findings. On August 18,2002, at approximately 12:30 a.m., defendant was arrested and processed in Windham County for suspected driving under the influence. When defendant arrived in the processing room at the police station, he asked the officer conducting the processing if the interview was being recorded on audio or video tape. The officer responded yes to both questions. Neither defendant nor the officer mentioned the recordings again. After receiving his Miranda warning, defendant waived his right to have an attorney present. The officer then read defendant his statutory rights as required by 23 V.S.A. § 1202(d).1 Defendant asked to consult with an attorney before submitting to an evidentiary breath test. The officer dialed the public defender, handed the telephone to defendant, and left the room. The officer left the processing room immediately, went to the room containing the recording device, and turned off the audio tape, but not the video tape. Because the officer could not turn off the sound until he reached the recording device in the other room, the first twenty-seven seconds of defendant’s eonver-[447]*447sation were captured on tape. These twenty-seven seconds were twice admitted into evidence by the trial court, and the court incorporated the contents of the conversation into its ruling.2 The officer never told defendant that he had turned off the recording. After approximately seven minutes, the telephone conversation ended. Defendant refused to provide an evidentiary breath sample.

¶ 3. The State filed criminal DUI charges against defendant, and defendant moved to suppress evidence of his refusal. Defendant argued that his belief that the police were recording his conversation with the public defender prevented him from asking the attorney whether his prior arrests for DUI would affect the potential charges he faced. At the suppression hearing he stated, “I didn’t feel comfortable discussing my situation because I wasn’t sure if there was something I would say that could be held against me.” This inhibition, he argued, violated his right to a meaningful consultation with an attorney under 23 V.S.A. § 1202(c).3 He testified, “I had no clue about whether or not the fact that I had been arrested would impact me in the current situation and I hadn’t been able to discuss it with the lawyer____I had no idea if it would, so I decided again that it would be safer not to take the test.”

¶ 4. The district court denied the motion to suppress on the grounds that defendant had failed to demonstrate a connection between defendant’s inhibition and his subsequent decision to refuse the evidentiary breath test. The court stated that defendant had not provided any information about why his inability to ask certain questions caused him to refuse the test. The court also found that the public defender’s question about previous convictions should have signaled to “an obviously intelligent defendant” that convictions, not arrests, were of concern. The court then discussed whether the inhibition prejudiced defendant and ruled that, even if the attorney [448]*448had known about defendant’s prior arrests, it would not have changed the advice that the attorney gave defendant. “So the Court can’t see any underlying prejudice from the defendant not providing that information to the attorney on the phone.” At trial, a jury found defendant not guilty of driving under the influence.

¶ 5. In a civil suspension hearing held after the suppression hearing, defendant again moved to suppress the evidence of his refusal to submit to the evidentiary breath test. Defendant testified again. At the hearing, the court also took judicial notice of the testimony that defendant had given at the suppression hearing. The district court ruled that:

prejudice ... seems to be the pivotal question[,] and I understand the defendant’s argument that he was inhibited in speaking with the attorney regarding all the questions that he needed to ask the attorney, but it seems to me that he was able to ask him or at least give him, pursuant to the attorney’s questions, the relevant information[,] and that was whether he had ever been convicted before. And so, therefore, his feeling inhibited about whether he could reveal to the attorney the fact [that] he’d been processed before[,] the Court finds[,] isn’t prejudicial to him.

The trial court emphasized that defendant held both a bachelor’s and a master’s degree and ruled that “any reasonable person in his position would know that the relevant question is whether he’s been convicted of an offense, not processed, because that’s what the attorney asked him.” Finding no violation of defendant’s right to a meaningful consultation with an attorney under § 1202, the court ordered judgment for the State. The district court stayed suspension of defendant’s license pending the outcome of this appeal.

¶ 6. Section 1202(c) gives suspects a limited right to consult with an attorney before either submitting to an evidentiary breath test or refusing and being subject to a civil suspension hearing. Over nearly thirty years, our cases have refined what constitutes a meaningful consultation with an attorney under these circumstances. In 1978, this Court determined that having a statutory right to consult with an attorney was completely ineffective unless police informed defendants of that right before administering an evidentiary breath test. State v. Duff, 136 Vt. 537, 539-40, 394 A.2d 1145, 1146 (1978). Further, this Court has repeatedly held that the conversation must be meaningful and “reasonably private.” State v. Sherwood, 174 Vt. 27, 31, 800 A.2d [449]*449463, 466 (2002); State v. Lombard, 146 Vt. 411, 415, 505 A.2d 1182, 1184-85 (1985) (holding that police did not violate defendant’s right to reasonably private consultation by staying nearby while defendant spoke to his attorney at pay phone). That right is not absolute, however. Privacy is not warranted when defendants present a security risk. Pfeil v. Rutland Dist. CL, 147 Vt. 305, 309, 515 A.2d 1052, 1055-56 (1986) (ruling that when defendant was handcuffed to the wall he no longer presented a security risk, and therefore police could not justifiably monitor his conversation with an attorney).

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Bluebook (online)
2004 VT 39, 852 A.2d 605, 176 Vt. 444, 2004 Vt. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-powers-vt-2004.