Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-464

                                          JULY TERM, 2016

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
    v.                                                 }    Criminal and Civil Divisions
                                                       }
                                                       }    DOCKET NOS. 63-7-15 Frcs &
 Constance Erikssen                                    }                738-7-15 Frcr

                                                            Trial Judge: Robert A. Mello

                          In the above-entitled cause, the Clerk will enter:

       Defendant challenges the denial of her motion to suppress and dismiss in these civil
suspension and driving-under-the-influence (DUI) cases. She asserts that the court erred in
finding the arresting officer to be credible, and it erred in concluding that he had reasonable
suspicion to believe that she was driving while intoxicated. We affirm.

         These cases began after a traffic stop in the early morning hours of July 2, 2015.
Defendant filed a motion to suppress and dismiss, and after a hearing, the court denied her
motion. It made the following findings on the record. Defendant was stopped for making an
illegal right-hand turn. In speaking with defendant, the arresting officer observed that her eyes
were red and watery. Defendant indicated that she was wearing contact lenses, which offered
one explanation for the condition of her eyes, but the officer recognized that it was also a
possible indicator of impairment. Defendant acknowledged that she had been drinking earlier in
the day, but the officer did not detect any odor of intoxicants. At that point, the officer
concluded that defendant was not impaired, and he went to his cruiser to write up a warning
ticket for the traffic violation. The officer returned to defendant’s car, delivered the warning and
told defendant good night. As the officer walked away, defendant asked him where she had
made the illegal right turn. The officer testified that defendant slurred part of her question to the
point where he could not understand what she had asked. The officer replied, “What?” and he
testified that in responding to his query, defendant struggled to pronounce the sentence and again
slurred one or more of her words. At that point, the officer concluded that he had reasonable
basis to believe that defendant might be impaired, sufficient to support an exit order.

        On cross-examination of the officer, defendant challenged whether she had in fact slurred
her words. The court viewed a videotape of the encounter but found it impossible to determine
with any degree of certainty from the tape whether defendant in fact slurred any words. The
court could not rule it out nor could it clearly say that it heard slurring. It noted that this Court
had made it clear that recordings may or may not necessarily depict all of the information that
may occur at a scene. The court thus accepted as true, and found credible, the officer’s
testimony that defendant did in fact slur one or more of her words. The court found that the
officer appeared to be credible throughout his testimony. The court explained that, while the
officer did not believe that he had grounds for an exit order before defendant slurred her words,
her words gave him additional grounds to suspect that she might be impaired and the information
he possessed was sufficient to justify the exit order. The court thus denied the motion to
suppress and granted judgment to the State in the civil suspension proceedings. Defendant
entered a conditional guilty plea to DUI, and these appeals followed.

       Defendant first asserts that because the court found the videotape inconclusive, it could
not credit the officer’s testimony that she slurred several words. Even if she did slur several
words, defendant asserts that this did not provide the officer with reasonable suspicion that she
was DUI because, just before she spoke, the officer did not think she was impaired.

       We review the court’s findings for clear error, and its legal conclusions de novo. State v.
Button, 2013 VT 92, ¶ 8, 195 Vt. 65 (noting that on review of denial of motion to suppress,
Supreme Court reviews factual findings for clear error and reviews legal conclusions de novo).
We find no error here.

        First, the court acted within its discretion in crediting the officer’s testimony that
defendant slurred her words even though it found the videotape inconclusive. We considered a
similar argument in State v. Freeman, 2004 VT 56, 177 Vt. 478 (mem.). In that case, as here, a
trooper testified as to his observations of the defendant during a traffic stop. The trial court
reviewed a videotape of a stop but found it difficult to corroborate the trooper’s observations.
Nonetheless, the trial court gave great weight to the trooper’s testimony and the DUI processing
form affidavit the trooper supplied. Id. ¶ 5. The defendant argued on appeal that, given its
findings concerning the videotape, the court could not credit the trooper’s testimony. We
rejected this argument. “In essence,” we explained, the trial court “refused to substitute its
judgment of the events captured in the tape for the trooper’s testimony, which the court found
credible.” Id. ¶ 8. “Given the inherent difficult in evaluating demeanor, mannerisms, and tone
of voice, in addition to the quality of testimony itself, we defer to the factfinder’s determination
of the credibility of the witness, and the persuasive effect of his testimony.” Id. We similar
defer here to the factfinder’s determination that the officer was credible.

       The court’s findings, including those based on the officer’s testimony, support its
conclusion that the officer had reasonable suspicion to suspect that defendant was DUI. As
defendant acknowledges:

                Reasonable suspicion of a traffic violation can form the basis for
               a valid stop, but the detention must be temporary and last no longer
               than necessary to effectuate the purpose of the stop. If, during the
               course of an investigative stop, an officer gathers additional
               information providing reasonable suspicion that some other
               criminal activity is afoot, the officer may extend the detention to
               investigate that activity.

State v. Winters, 2015 VT 116, ¶ 14, 131 A.3d 186 (citations omitted).

       That is precisely what happened here. As the officer testified, he observed several signs
during his initial conversation that could demonstrate impairment: defendant’s bloodshot watery
eyes and her admission to drinking earlier that evening. Although he did not believe that she was
impaired based on these signs, he reached a different conclusion when slurred language was
added to the calculation. This was the tipping point for the officer, and we agree with the trial

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court that based on the totality of his observations, the officer had reasonable suspicion that
defendant was DUI. This is not a case, as defendant suggests, where the officer purposely
prolonged a traffic stop to engage in a “fishing expedition.” See, e.g., Rodriguez v. United
States, 135 S.Ct. 1609, 1612, 1615 (2015) (holding that “a police stop exceeding the time needed
to handle the matter for which the stop was made violates the Constitution’s shield against
unreasonable seizures,” and that this rule applies to dog sniff, which cannot be characterized as
part of officer’s traffic mission); see also Arizona v. Johnson, 555 U.S. 323, 333 (2009)
(explaining that lawful roadside stop begins when vehicle is pulled over for investigation of
traffic violation, and temporary seizure remains reasonable for duration of stop, and stating that
officer’s inquiries into matters unrelated to justification for traffic stop do not convert encounter
into something other than lawful seizure as long as those inquiries do not measurably extend
duration of stop). Here, it was defendant who stopped the officer as he was leaving, and asked
him a question. While responding to defendant’s question, the officer “gather[ed] additional
information providing reasonable suspicion that some other criminal activity [was] afoot,”
Winters, 2015 VT 116, ¶ 14, namely, DUI. We find no error in the court’s denial of defendant’s
motion to suppress and dismiss.

       Affirmed.


                                                 BY THE COURT:

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




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