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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-064

                                          JULY TERM, 2014

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 John Swan                                             }    DOCKET NO. 85-11-13 Bncs

                                                            Trial Judge: David A. Howard

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

        Defendant appeals the superior court’s decision upholding the civil suspension of his
driver’s license under 23 V.S.A. § 1205 for driving while intoxicated. We affirm.

         Defendant was stopped for erratic operation of a utility van occupied by himself and
another person. Following the stop, police officers observed from their initial contact with
defendant a moderate odor of alcohol, bloodshot and watery eyes, and mumbled speech.
Defendant claimed that he had not been operating the van, and he refused to take an evidentiary
breath test after speaking to counsel. As a result, defendant was notified of the civil suspension
of his license based on his refusal to take an evidentiary test, and he requested a hearing.

        At the hearing, defendant contended that he was not operating the van when police
stopped it. The court admitted most of defendant’s evidence subject to the State’s objection that
he had failed to provide the State within seven days of the hearing a list of the issues he intended
to raise at the hearing, as required by 23 V.S.A. § 1205(h)(2). The court, however, refused to
admit an affidavit of the other person who was in the van because it was not one of the types
allowed by 23 V.S.A. § 1205(j) (allowing affidavits of law enforcement officers, chemists, or
expert witnesses). Following the hearing, the court upheld the suspension of defendant’s driver’s
license, concluding that: (1) the State was entitled to judgment based on defendant’s failure to
timely provide the State with a list of issues he intended to raise at the hearing; and (2) even
considering defendant’s evidence, the State carried its burden of proving that the police had
reasonable grounds to believe that defendant was operating a vehicle while impaired.

         On appeal, defendant insists that he was not driving the van and that the police were lying
when they said he was. As the trial court stated, in a case involving civil suspension of a driver’s
license based on the defendant’s refusal to take an evidentiary test, the State need not prove that
the defendant operated the vehicle, but rather only that the police officer who stopped the vehicle
had a reasonable belief that the defendant was operating or in control of the vehicle. See State v.
Green, 173 Vt. 540, 541 (2001); Shaw v. Vt. Dist. Court, 152 Vt. 1, 4 (1989). This is so because
when “the person refuses to take the test, it is the refusal itself, not operation while intoxicated,
that is the basis for any license suspension.” Green, 173 Vt. at 541-42. The State, though, must
still prove the officer’s reasonable belief of illegal operation “to protect motorists from
capricious or unreasonable demands that they submit to a test.” Id. at 542.

        In this case, as the trial court found, the evidence demonstrated a reasonable belief by the
officers that defendant was operating the van. Shortly before the stop, the officers observed the
other person sitting in the van facing the opposite direction of travel. When the officers
approached the van, defendant was standing behind the driver’s seat in a position to which he
could easily have moved once the vehicle had stopped. At the scene, the other person initially
claimed that she had been driving but then denied operating the van when confronted with the
officers’ observations that she had been sitting facing the opposite direction of travel.
Accordingly, even taking into consideration defendant’s evidence, the State demonstrated that
the officers had a reasonable belief that defendant was operating the van.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice

                                                _______________________________________
                                                Geoffrey W. Crawford, Associate Justice




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