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




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-194

                                      DECEMBER TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Leo Corbeil                                           }    DOCKET NOS. 1530-12-11 Wncr &
                                                                        116-12-11 Wncs

                                                            Trial Judge: Howard E. VanBenthuysen

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

       The State appeals the dismissal of the criminal charge of driving under the influence
(DUI), fourth offense, and the civil suspension of defendant’s driver’s license. We reverse.

         On November 25, 2011, at approximately 10 p.m. a police officer stopped defendant’s
vehicle after noticing that one of the vehicle’s fog lights was not functioning. Upon approaching
the vehicle, the officer observed indicia of intoxication. A preliminary non-evidentiary breath
test revealed a blood-alcohol content (BAC) of .179. Two hours later, defendant submitted to an
evidentiary breath test that revealed a .134 BAC. As a result, defendant was charged with DUI,
fourth offense, and was provided notice that the State intended to seek the civil suspension of his
driver’s license.

        In February 2012, defendant filed a motion to suppress and dismiss, alleging that the
police officer stopped his vehicle without sufficient legal justification. The State opposed the
motion and requested a hearing. The court denied the State’s request for a hearing and granted
defendant’s motion in two motion-reaction forms, stating that no hearing was necessary because
the issue was clear as a matter of law and that malfunctioning optional equipment like fog lights
could not provide sufficient legal justification for a motor vehicle stop. The State appeals,
relying principally on our holding in State v. Thompson, 175 Vt. 470 (2002) (mem.).

        We agree that Thompson controls and requires reversal here. In Thompson, which
involved two consolidated cases, one defendant had been stopped because his vehicle was
missing a bumper and the other defendant had been stopped because his vehicle was missing a
driver’s side rearview mirror. Both defendants filed motions to suppress, arguing that because
the missing equipment was not standard equipment required for motor vehicles to be properly
equipped, the police did not have a reasonable and articulable suspicion in either case that a
motor vehicle violation was taking place. See State v. Lussier, 171 Vt. 19, 34 (2000) (stating
standard for investigatory stop of vehicle). The defendant with the missing bumper prevailed at
trial, while the defendant with the missing side rearview mirror did not. We concluded that
“there was a legal basis for the stop in both cases.” Thompson, 175 Vt. at 471. We found no
need to resolve the question of whether the missing equipment was standard or optional; rather,
we determined that the stop in both cases was justified because “at the time of the stops, there
was a reasonable possibility that defendants were committing a traffic offense—operating a
vehicle without a valid inspection certification.” Id. at 472. We reasoned that because the
Vermont Periodic Inspection Manual required vehicles manufactured with a bumper and a
driver’s side rearview mirror to have that equipment, the vehicles in those cases would not have
passed inspection without the equipment. Id. at 471. We concluded that the missing equipment
“and the fact that both vehicles were stopped after dark, making a passing examination of the
date of the vehicles’ current inspection certificate difficult or impossible, [were] sufficient to
establish a reasonable and articulable suspicion that a traffic offense was being committed.” Id.
at 472.

        The same is true here. The section in the Vermont Periodic Inspection Manual dealing
with lights expressly states that an inspection includes “all original equipment, exterior lighting
plus whatever lights have been added.” See http://dmv.vermont.gov/sites/dmv/files/pdf/DMV-
VN112-Vehicle_Inspection_Manual.pdf. Significantly, the manual states: “If a vehicle is
equipped with a light, it must work properly.” Id. Indeed, according to the Manual, a vehicle
must be rejected if “[a]ny bulb or sealed beam unit fails to light.” Id. Thus, the same reasoning
as in Thompson applies here. The fact that defendant was operating his vehicle with a
nonfunctioning fog light indicates that the vehicle would not have passed inspection, and thus the
officer’s nighttime observation of the vehicle without a functioning fog light created legal
justification for the stop—the reasonable possibility that defendant was committing a traffic
offense by operating a vehicle without a valid inspection sticker.

         We reject defendant’s contention that Lussier rather than Thompson controls. In Lussier,
which also involved two consolidated cases, this Court upheld a stop grounded on one of two
taillights not operating, but declined to uphold a stop grounded on one of two rear license plate
lights not operating. We concluded that Vermont law required two taillights on a car but did not
require two operating lights to illuminate a car’s rear license plate. Lussier, 171 Vt. at 36-37.
We noted that the State had not presented any evidence that the numbers or letters on defendant’s
rear license plate were not illuminated to the degree required by law. Id. at 37. Apparently,
neither the parties, nor the trial court, nor this Court raised or addressed the question of whether
the stop for the inoperable plate light could have been justified based on the reasonable
possibility that the vehicle did not have a current inspection sticker. In contrast, the trial court in
one of the cases in Thompson denied the defendant’s motion to suppress based on its
determination “that the term ‘properly equipped’ under 23 V.S.A. § 1221 encompassed the
regulations governing motor vehicle inspections.” 175 Vt. at 471. This Court, in turn, addressed
the issue of whether the stops in those cases were justified based on the reasonable possibility
that the vehicles did not have current inspection stickers. In doing so, we even cited Lussier. In



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short, Lussier simply did not address the issue raised in Thompson, which controls here. There
is nothing about lights, as opposed to other motor vehicle equipment, that precludes our
reasoning in Thompson from applying here.

       The order of the superior court, criminal division, entered on February 15, 2012, is
reversed, and the matter is remanded with instructions for the court to deny defendant’s motion
to suppress and dismiss.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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