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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-429

                                          JUNE TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Mariusz Curylo                                        }    DOCKET NO. 50-7-14 Bncs

                                                            Trial Judge: William D. Cohen

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

       Defendant appeals the civil suspension of his driver’s license for driving while
intoxicated (DWI). He argues that the criminal division of the superior court erred by not
suppressing his breath-test result based on the processing officer’s failure to provide him with an
opportunity to submit a second evidentiary breath sample. We affirm.

        The following facts were revealed through the testimony and exhibits presented at the
October 14, 2014 hearing in which defendant contested the civil suspension of his driver’s
license. On June 29, 2014, defendant was arrested and transported to the Shaftsbury state police
barracks for DWI processing after being stopped for speeding, exhibiting signs of intoxication,
failing field-dexterity tests, and submitting a preliminary breath sample with a breath-alcohol
content (BAC) of .189. The processing officer read defendant his rights, including the
following: “[I]f you submit to an evidentiary test administered with an infrared device, following
receipt of the results of that test, you have a right to a second evidentiary test administered by me
using the infrared device.” Defendant blew into the device three times without providing an
adequate breath sample. Finally, on the fourth attempt, he provided an adequate sample, which
revealed a BAC of .141. After he provided the sample, the officer did not ask him if he wanted
to provide a second breath sample, but informed him of his right to have an independent blood
test done at his expense at a hospital with a kit provided by the police. Defendant declined the
independent test. Based on the .141 test result, he was charged with DWI and received notice of
the civil suspension of his driver’s license.

        Defendant contested the civil suspension, and a hearing was held, at which a portion of a
video recording of defendant’s DWI processing was played. Defendant argued that the breath
sample must be suppressed because the processing officer failed to comply with 23 V.S.A.
§ 1202(d)(5), which provides that “[a] person who is requested by a law enforcement officer to
submit to an evidentiary test administered with an infrared breath-testing instrument may elect to
have a second infrared test administered immediately after receiving the results of the first test.”
See also 23 V.S.A. § 1205(h)(1)(E) (listing, as one of several issues that may be raised at civil-
suspension hearing, “[w]hether the requirements of section 1202 of this title were complied
with”); id. (stating that law enforcement officer’s affidavit in support of civil suspension shall be
sufficient if it contains certain specified statements, including that “[t]he officer informed the
person of his or her rights under subsection 1202(d) of this title”). On the record at the
conclusion of the hearing, the superior court denied the motion to suppress and upheld the
suspension of defendant’s driver’s license. After noting that § 1202(d)(5) does not explicitly
state that a second test must be offered following the results of the first test, the court concluded
that “the totality of the circumstances” in this case demonstrated that the processing was “done in
accordance with Vermont law.” In so ruling, the court found that the processing officer acted in
good faith and that defendant wanted to take only “one test and get out of there.” The court
indicated that it was a “close case,” but that it was “persuaded mostly by the video interaction
between the . . . police officer and the Defendant in ruling the way [it] did.”

        On appeal, defendant argues that the processing officer did not comply with § 1202(d)(5)
and thus that the superior court erred by denying his motion to suppress and by suspending his
driver’s license. He points in particular to the fact that the officer never asked him after he
received the results of the first test whether he wanted to take a second breath test—and yet the
officer checked both the “yes” and “no” boxes of the question on the implied consent form
asking: “Do you want a second infrared test NOW?”

         We find no basis to overturn the superior court’s decision. As the court noted,
§ 1202(d)(5) does not explicitly require that the processing officer offer a second breath test at
the time the initial test result is obtained; rather, the statute provides only that a defendant “may
elect” to have a second breath test “immediately after receiving the results of the first test.” To
the extent that the statute implies that the processing officer must inform a person taking a breath
test of that right, in this case the parties stipulated that during the processing before defendant
took the first breath test, the officer informed him that if he submitted to an evidentiary breath
test, he had a right to a second breath test administered by the officer.* Moreover, as noted, after
watching the video recording of the interaction between the officer and defendant, the court
found that the officer acted in good faith and that defendant was not interested in taking a second
test. State v. Spooner, 2012 VT 90, ¶ 11, 192 Vt. 465 (stating that “[w]hether a test is reliable or
accurate is a factual finding” reviewed for clear error because trier of fact is in best position to
weigh sufficiency of evidence and assess credibility of witnesses). These findings are supported
by the video recording, which shows that: (1) before defendant submitted a breath sample, the
officer informed him that he had a right to a second breath test after obtaining the results of the
first test; (2) during the processing when defendant struggled to submit a sample, he repeatedly
referred to this right, albeit in the context of claiming that he had already submitted two samples;
and (3) before submitting his first complete sample after several failed attempts, defendant stated
unequivocally: “I will do it one more time.” The officer testified that he did not remind
defendant of his right to a second breath test after he finally was able to produce a first sample
because of defendant’s repeated statements that he did not want to continue to attempt to provide
samples. The court essentially credited this testimony, and the video recording supports the
court’s findings as to defendant’s determination not to attempt to produce another sample.
Under these circumstances, we find no basis to overturn the court’s conclusion that the officer
complied with § 1202(d)(5).

       *
           Although § 1202(d)(5) is not explicit as to the timing of when a person must be
informed of a right to submit a second infrared breath sample, reminding the person of that right
after the first sample is read ensures that the person will make a fully informed decision on
whether to submit a second sample. As indicated above, there is no basis to suppress the first
sample submitted by defendant, given the particular circumstances of this case.
                                                2
         Neither Spooner nor State v. Vezina, 2004 VT 62, 177 Vt. 488 (mem.), upon which
defendant relies, convinces us otherwise. In Vezina, we held that the inability of the infrared
device in that case to produce a second test result did not require suppression of the first test
result, “particularly in light of defendant’s ability to challenge the instrument’s reliability, either
by seeking independent testing or by introducing evidence of the ‘out of range’ reading” given
by the device in attempting to provide a second test result. 2004 VT 62, ¶ 6. In so holding, we
contrasted that case—in which the defendant was adequately informed of his statutory rights, the
processing officer attempted in good faith to comply with the defendant’s request for a second
test, and the officer informed defendant of his right to an independent test—with an out-of-state
case relied upon by the defendant, where the police deliberately deprived the defendant of her
right to a second test that she had requested. Id. ¶¶ 7-8. In Spooner, the defendant requested a
second breath test, but the processing officer was able to obtain a second result only after the
machine displayed a fatal error reading. Because the second test was not taken in compliance
with protocols prescribed by the Department of Health, the trial court determined that it was
unreliable. We held that because a person has a right to a reliable second test, and the trial
court’s findings regarding the unreliability of the second test were not clearly erroneous, “the
court correctly concluded that the lack of a reliable test deprived the State of an essential element
to establish its civil-suspension case.” Id. ¶¶ 16, 18.

        According to defendant, he is entitled to suppression of the first breath-test result because
he was deprived of a second test result, to which he had a right under § 1202(d)(5), as the result
of the bad faith of the processing officer rather than the malfunction of the infrared device. This
argument fails because, as explained above, the record supports the superior court’s conclusion
that there was no violation of § 1202(d)(5) based on its findings that the officer in this case acted
in good faith and that defendant was aware of his right to a second test but not interested in
providing another sample.

       Affirmed.

                                                  BY THE COURT:


                                                  _______________________________________
                                                  Paul L. Reiber, Chief Justice

                                                  _______________________________________
                                                  Marilyn S. Skoglund, Associate Justice

                                                  _______________________________________
                                                  Harold E. Eaton, Jr., Associate Justice




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