2013 VT 3


State v.
Dubuque (2012-131)
 
2013 VT 3
 
[Filed 18-Jan-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 3 

 

No. 2012-131

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


Damon L. Dubuque


October Term, 2012


 


 


 


 


Alison
  S. Arms, J. (motion to suppress); James R. Crucitti, J. (final judgment)


 

Thomas J. Donovan, Jr., Chittenden County State’s Attorney,
Andrew R. Strauss, 
  Deputy State’s Attorney and Evan Barquist, Law Clerk,
Burlington, for Plaintiff-Appellee.
 
William R. Norful of Norful Law Office,
Winooski, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   Defendant Damon Dubuque was convicted of a
violation of 23 V.S.A. § 1201(b) (refusing a reasonable request for an
evidentiary test after being convicted of DUI).  He appeals the denial of
a motion to suppress evidence of his refusal to give a blood sample, arguing
that he should have been offered a breath test because breath-testing equipment
was present in a number of police stations that defendant and the arresting
officer passed in a car after defendant’s discharge from the hospital to which
he had been taken after an accident.  We hold that the breath-testing
equipment was not reasonably available and affirm.
¶ 2.            
At approximately 8:00 a.m. on July 26, 2011, an Essex police officer was
dispatched to a single-car rollover accident on Interstate 289 in Essex. 
The automobile was operated by defendant, Damon Dubuque.  After speaking
with defendant, the officer arrested him on suspicion of driving under the
influence and accompanied him in an ambulance to the hospital.  Around
9:30 a.m., prior to defendant having x-rays taken, the officer asked medical
personnel how long it would take for them to complete defendant’s evaluation
and treatment.  He was told that the necessary amount of time was
unknown.  After receiving that response, at 9:45 a.m.—approximately one
hour and forty-five minutes after the accident—the officer began processing
defendant for the offense of driving under the influence.  He asked
defendant to provide a blood sample, and defendant refused,
stating that he would give only a breath sample.  After defendant was
released from the hospital, the officer transported him to Act One, a
residential and detoxification facility.  The facility refused to admit
him.  The officer then took him to a detox facility at the Chittenden
Regional Correctional Center.  At no point did defendant give either a
blood or breath sample, nor did the officer ask
defendant to take a test after leaving the hospital.  On August 15, 2011,
defendant was arraigned on charges of “DUI #3 or Subsequent – Test Refusal” and
one other charge, which was subsequently dropped.  
¶ 3.            
Defendant moved to suppress evidence of the refusal to give a blood
sample, and a hearing was held.  The sole issue at the hearing on
the motion to suppress was whether breath-testing equipment was reasonably
available when the officer processed defendant, given the unknown amount of
time that defendant could be expected to remain in the hospital.[1]  Vermont law favors breath tests
over blood tests.  Thus, 23 V.S.A. § 1202(a)(1)
provides that an operator of a vehicle on a highway is deemed to have given
consent to a breath test.  However, § 1202(a)(2) provides in
pertinent part: “If breath testing equipment is not reasonably available or if
the officer has reason to believe that the person is unable to give a sufficient
sample of breath for testing . . . the person is deemed to
have given consent to the taking of an evidentiary sample of blood.” 
Consequently, in those circumstances, a refusal to give a blood sample
constitutes refusal to take a test under 23 V.S.A. § 1201(b).  That
section states that an operator who has previously been convicted of DUI and
who refuses a “reasonable request” to submit to an evidentiary test commits a
crime.  See also id. § 1210 (setting forth the penalties for a
violation of 23 V.S.A. § 1201).
¶ 4.            
Defendant contended during the hearing that the breath-testing equipment
was reasonably available because the car that transported defendant from the
hospital to Act One and then from Act One to the detox facility at the
Chittenden Regional Correctional Center passed by a number of locations with
available breath-testing machines.  Defendant’s counsel focused
particularly on the fact that the car twice passed within a quarter mile of the
Burlington Police Station, which has a breath-testing machine.  
¶ 5.            
The State acknowledged that after defendant was discharged from the
hospital the officer could have taken him to a facility with a breath-testing
machine.  It argued, however, that the test had to be administered within
a reasonable time after the accident and the officer had no way of knowing when
he could leave the hospital with defendant to drive to a breath-testing
machine.  The State maintained that the officer should not be asked to
“substitute his judgment for that of trained medical personal in trying to determine . . . or guess how long
someone’s going to be needed for treatment.”  Therefore, the State
contended, at the time the request was made for a blood test, equipment for a
breath test was not reasonably available.  
¶ 6.            
The trial court denied the motion to suppress.[2]  It concluded that it was “not
unreasonable for the officer to rely on the comments of hospital personnel for
an estimate of when [d]efendant might be released . . . .
Since [d]efendant could not travel to a testing site until he was released from
the hospital, no breath-testing equipment was reasonably available under the
circumstances.”  
¶ 7.            
After the ruling on suppression, defendant entered a conditional plea,
reserving the right to appeal the denial of the suppression motion.  
¶
8.            
On appeal, both parties renew their arguments from below.  In
reviewing a motion to suppress, we will defer to the trial court’s findings of
fact unless they are clearly erroneous.  State v. Simoneau, 2003 VT
83, ¶ 14, 176 Vt. 15, 833 A.2d 1280.  We review
the court’s legal conclusions de novo.  State v. Pitts, 2009 VT 51,
¶ 6, 186 Vt. 71, 978 A.2d 14.
¶ 9.            
In evaluating whether breath-testing equipment was reasonably available,
we must bear in mind the time-sensitive nature of blood-alcohol evidence. 
As time goes by, the blood alcohol content (BAC) declines.  We have termed
this the “evanescent nature” of blood alcohol evidence.  See State v. Benoir, 174 Vt. 632, 633, 819 A.2d 699, 702
(2002).  The Legislature has recognized the necessity that an
evidentiary test be timely by allowing a permissive inference that a test
result of .10 or greater “within two hours” of operation shows operation under
the influence of alcohol.  23 V.S.A. § 1204(a)(3).
 Therefore, we find it reasonable for an officer to request a test that
can be completed within the two-hour window.
¶ 10.         In
this case, the time at which the officer began processing and made the request
for the test was close to when the permissive-inference window would close—it
was approximately one hour and forty-five minutes after the accident
occurred.  At that point, the officer could not determine when defendant’s
medical evaluation and treatment would end.  It was not reasonable for the
officer to prematurely remove defendant from the hospital in order to obtain a
breath test.[3] 
Moreover, there is no evidence that the officer could have reached another
location and administered a breath test to defendant within the two-hour
window.  The statute does not require law enforcement to make every
possible effort to take a breath sample before requesting a blood sample;
rather, it states that a person is deemed to give consent to a blood test when
the breath-testing equipment is not reasonably available.  We do not view
breath-testing equipment located outside the hospital facility as reasonably
available if the operator’s medical evaluation and treatment must be
interrupted to reach it.  
¶ 11.         We
understand defendant’s argument that finding implied consent under 23 V.S.A. §
1202(a)(2) should be an “objective, factual inquiry,
not a matter of the officer’s subjective belief.”  State
v. Ratliff, 169 Vt. 599, 600, 738 A.2d 96, 97 (1999) (mem.).[4]  In this case, however, the
determination by the officer that breath-testing equipment was not reasonably
available, because it was unknown for how much longer defendant was going to
need to remain in the hospital, was not based on a subjective determination;
rather, it was based on the information received from the medical personnel
handling defendant’s examination and treatment.  Moreover, it was outside
of the realm of determinations that we ask our police officers to make.  
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 For purposes of this issue, it is undisputed that there was no
breath-testing equipment available at the hospital.  In order for the
officer to have administered a breath test he would have had to take defendant
to another facility.  


[2]
 The court found that “during transport to Act One, [the]
[o]fficer . . . and [d]efendant did not travel past a
[breath-testing] instrument,” but did not rely on that fact in its
decision.  


[3]
 There is no evidence that defendant, who presumably controlled his own
health-care options, sought to terminate his medical treatment in order to
drive to a breath-test machine location.  His argument is solely based on
what he contends that the officer should have done.
 


[4]
 That case was based on the second clause in the statute, about a driver’s
inability to give a sufficient sample of his or her breath for testing, rather
than the availability of breath-testing equipment.  



