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@vermont.gov 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.


                                           2019 VT 27

                                          No. 2018-003

State of Vermont                                                Supreme Court

                                                                On Appeal from
   v.                                                           Superior Court, Windham Unit,
                                                                Criminal Division

Erika M. Schapp                                                 January Term, 2019


Michael R. Kainen, J.

David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for
 Defendant-Appellant.


PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.


        ¶ 1.   EATON, J. Defendant appeals a conviction of refusal to submit to an evidentiary

breath test to determine blood-alcohol concentration.       Defendant argues that (1) the court

erroneously admitted evidence of her refusal to take a preliminary breath test (PBT), (2) the State

failed to meet its burden of proving the “reasonableness” requirement for criminal refusal beyond

a reasonable doubt, and (3) the State failed to prove that she refused the test. We affirm.

        ¶ 2.   Defendant was charged with driving while intoxicated (DUI), second offense, and

criminal refusal. The charges were bifurcated for trial. 1 In the DUI phase of the trial, the State


        1
          Prior to trial, defendant moved to sever the charges and have the two counts heard by
separate juries. The court denied the motion.
presented the following evidence. Late one evening in October 2016, a Brattleboro police officer

was parked downtown and observed defendant, coming from the direction of a bar, walk to a car

and drive away. The officer followed the car and executed a stop after he observed the car driving

ten miles over the speed limit. The officer detected a faint odor of alcohol and noticed that

defendant’s eyes were watery, and her speech was slightly slurred. Defendant denied drinking

alcohol and stated that she was a waitress. Based on these observations, the officer asked defendant

to exit the car and take field-sobriety tests. During defendant’s performance of the tests, the officer

observed four clues of impairment. The officer suspected that defendant was impaired and

requested that defendant provide a sample of breath for a PBT. Defendant refused to take the test,

and the officer arrested her and brought her to the police department. A video of the roadside

encounter was admitted at trial. At the police station, the officer requested that defendant provide

an evidentiary breath test and defendant refused. A video of this encounter was also admitted and

played for the jury.

       ¶ 3.    At the outset of the DUI stage of the trial, defendant sought to exclude the fact that

defendant refused to take a PBT. The court concluded that defendant’s refusal to take the PBT

demonstrated consciousness of guilt and that it was admissible in the DUI trial. The court also

granted defendant’s request to introduce evidence about her reasons for refusing, concluding it

was relevant to her state of mind.

       ¶ 4.    Defendant testified that on the day of her arrest, she had been up at 5 a.m. and had

worked as a waitress in a restaurant from 4 p.m. to 11:30 p.m. during which time she served

alcoholic drinks. She explained that she had trouble with the roadside tests because she was tired,

had a sore ankle, the terrain was uneven, and the officer’s instructions were not clear. She

expressed that she refused to take the PBT because she felt intimidated and isolated, and that she

did not get clear answers from the officer about how the PBT would be used. She thought that the


                                                  2
use of handcuffs and the pat down after the arrest was excessive and stated that, after being arrested

and handcuffed, she offered to take a PBT, but the officer said it was too late. At the police station,

she stated that it made her feel uncomfortable when she asked to use the bathroom and the officer

stood in the doorway and did not turn away. She stated that she declined to take an evidentiary

test because she was uncomfortable and did not want to cooperate further. Later, she asked if it

was too late to take the test, and the officer said that it was.

         ¶ 5.   During closing arguments to the DUI charge, the prosecutor stated that defendant

had refused to take the evidentiary and preliminary tests, and stated “you can draw conclusions,

based on both those refusals, she was trying to hide something. That is consciousness of her guilt,

that she didn’t want the police to know that she had been drinking, so she refused. She refused the

test.”

         ¶ 6.   The court instructed the jury generally and specifically on the elements of the DUI

charge. The court explained that in evaluating the elements of the charge, the jury could consider

any relevant observations of defendant and that the jury could “use any evidence regarding refusal

along with other evidence to decide whether the State has met its burden of proving each of the

essential elements of the offense beyond a reasonable doubt. However, you are not required to

draw any inference from this evidence.” The jury acquitted defendant on the DUI charge.

         ¶ 7.   The case proceeded to the second phase regarding the refusal charge. The only

additional evidence presented was the State’s evidence that defendant had a prior DUI conviction,

an element of the refusal charge. The State requested that the court instruct the jury not to consider

defendant’s reasons for refusing to provide an evidentiary test, claiming those reasons were not

relevant to the refusal charge. Defendant argued that her reasons for refusing to take the test were

relevant to whether the officer’s request to take an evidentiary test was reasonable. The court

concluded that the issue was whether the officer had a reasonable basis to believe that defendant


                                                    3
was impaired, and this was determined by objective factors, not defendant’s subjective feelings

for not cooperating. In closing arguments, the State explained that the issue in the refusal

prosecution was whether the officer had “reasonable grounds to believe the person was DUI and

that their request was reasonable under the circumstances.” The State repeated several times that

the question was whether the officer had reasonable grounds to believe defendant was driving

while intoxicated. Defendant argued that her refusal was not definitive, and that the officer’s

request was not reasonable under the circumstances.

       ¶ 8.    The court began its instructions by stating “My previous instructions still apply to

you, but now you are to consider these additional instructions as Count 2.” The court explained

the elements of the refusal charge, stating:

                The fifth essential element is that at the time of the request, the
               officer had reasonable grounds to believe that [defendant] had been
               operating a motor vehicle on a highway and that she was under the
               influence of intoxicating liquor. Reasonable grounds means that the
               officer had made specific observations reasonably supporting an
               inference that [defendant] had been operating a motor vehicle while
               she was under the influence of intoxicating liquor.

                ....

                The sixth essential element is that the officer’s request for an
               evidentiary test was reasonable under the circumstances. The
               officer must have had reasonable grounds to believe that [defendant]
               had been operating a motor vehicle on a public highway and that she
               was under the influence of intoxicating liquor.

       ¶ 9.    As to the prior evidence regarding defendant’s proffered reasons for refusing to

take the evidentiary test, the court further instructed the jury “not to consider why [defendant]

refused an evidentiary test, only whether she refused.” Defendant made one unrelated objection

to the jury instruction. The jury returned a guilty verdict to the refusal charge. Defendant appeals

her refusal conviction.




                                                 4
                               I. Admission of Refusal to Take PBT

       ¶ 10.   On appeal, defendant’s main argument is that the court erred in admitting evidence

of her refusal to take a PBT for the purpose of demonstrating her consciousness of guilt to driving

while under the influence.

       ¶ 11.   To fully understand defendant’s argument, it is necessary to review the legal

framework. The DUI statutes authorize law enforcement to administer two types of breath tests

for determining blood-alcohol levels. The first is a PBT, which is an investigatory tool used by

officers in the field “to ascertain whether probable cause exists to believe that an individual has

been driving under the influence of alcohol.” State v. McGuigan, 2008 VT 111, ¶ 14, 184 Vt. 441,

965 A.2d 511. PBTs are “quick and minimally intrusive” tests, which provide information about

a person’s blood-alcohol level and thus are valuable tools in detecting drunk driving. Id. (quotation

omitted). For this reason, we have held that although administering a PBT is a search, it is a

reasonable one under the Fourth Amendment and Article 11 as long as the officer has “specific,

articulable facts indicating that an individual has been driving under the influence of alcohol.” Id.

The DUI statutes mirror this standard, allowing the officer to request a PBT if the officer “has

reason to believe that a person may be violating or has violated section 1201 of this title.” 23

V.S.A. § 1203(f). The PBT can be administered using “a device approved by the Commissioner

of Public Safety.” Id. The statute provides that “[t]he results of this preliminary screening test

may be used for the purpose of deciding whether an arrest should be made and whether to request

an evidentiary test and shall not be used in any court proceeding except on those issues.” Id.

       ¶ 12.   The second type of breath test is an evidentiary breath test, which, as its name

implies, is one that “is intended to be introduced as evidence.” Id. § 1200(3). Given that the

evidentiary test may be introduced as substantive evidence of guilt of driving under the influence,

the requirements for requesting an evidentiary test are different than those for the PBT. First, there


                                                  5
is a higher threshold that police must meet to request an evidentiary test. An evidentiary test may

be requested “when a law enforcement officer has reasonable grounds to believe that the person

was operating, attempting to operate, or in actual physical control of a vehicle in violation of

section 1201 of this title.” Id. § 1202(a)(3). Second, prior to administering an evidentiary test, the

person has a right to consult with an attorney and to be informed of certain information. See id.

§ 1202(c). Third, the statutes provide equipment and testing protocols. Id. § 1203(c), (d). If these

standards are met, the numerical test results of an evidentiary test may be admitted at trial.

       ¶ 13.   For either a PBT or an evidentiary test, once the required threshold is met, an officer

can request a test, but a person cannot be forced to comply. State v. Therrien, 2011 VT 120, ¶ 10,

191 Vt. 24, 38 A.3d 1129 (explaining that “when an officer has a reasonable suspicion of DUI, he

may ‘request’ that the suspect provide a breath sample, but not order such participation”).

However, in certain circumstances. refusing to comply can result in a criminal penalty or in

admission of the refusal at trial. A person who has a prior DUI conviction “and refuse[s] a law

enforcement officer’s reasonable request under the circumstances for an evidentiary test where the

officer had reasonable grounds to believe the person” was committing a DUI, can be charged with

criminal refusal. 23 V.S.A. § 1201(b). Further, “[a] refusal to take a breath test may be introduced

as evidence in a criminal proceeding.” Id. § 1202(b).2

       ¶ 14.   Here, defendant was charged with both DUI-second offense, based on the officer’s

observations that she was under the influence, and criminal refusal for refusing to take an



       2
          This language was added in 2017, after defendant’s offense was committed and she was
charged, but before her trial. 2017, No. 62, § 9 (effective June 7, 2017). We need not reach the
question of whether it applied to her trial, but we note that statutes do not affect suits pending at
the time of passage except those “regulating practice in court, relating to the competency of
witnesses, or relating to amendments of process or pleadings.” 1 V.S.A. § 213; see State v. Rajda,
2018 VT 72, ¶ 13, __ Vt. __, 196 A.3d 1108 (assuming amended 23 V.S.A. § 1202 applied to
pending proceeding because parties did not challenge that it was procedural rather than substantive
in nature).

                                                  6
evidentiary test. Prior to trial, the court decided that defendant’s refusal was admissible but did

not differentiate between the refusal to take the PBT or the evidentiary test. In the DUI phase of

the trial, the State presented evidence that defendant refused to take both the PBT and the

evidentiary test. The refusals were admitted during that phase to show consciousness of guilt to

DUI. Defendant’s refusals were also mentioned in the refusal stage of trial.

       ¶ 15.   On appeal, defendant asserts that her refusal to take the PBT could not be

introduced to demonstrate consciousness of guilt in the refusal stage of the trial because the statute

limits use of the “results” of the PBT to “the purpose of deciding whether an arrest should be made

and whether to request an evidentiary test and shall not be used in any court proceeding except on

those issues.” Id. § 1203(f). Defendant equates the word “results” in the statute to “refusal” and

claims that a PBT refusal cannot therefore be used as consciousness-of-guilt evidence. In the

refusal stage of trial, defendant did not specifically object to admission of the PBT refusal on any

ground, including that it violated § 1203(f). As explained below, even if defendant’s statutory

argument was preserved, we conclude that it lacks merit.3

       ¶ 16.   In resolving defendant’s argument, we construe the statutory terms by looking at

the plain meaning used by the Legislature to determine its intent. See Therrien, 2011 VT 120, ¶ 9



       3
          On appeal, without specifying which stage of trial, defendant asserts that the State relied
on the PBT refusal in the presentation of its case and the court’s instruction endorsed using the
PBT refusal as probative of guilt, but the argument and instructions cited by defendant pertain to
the DUI, not the refusal, charge. In the refusal phase of the trial, the PBT refusal was not
emphasized. The discussion of the PBT refusal in the refusal prosecution centered on the
admissibility of defendant’s reasons for refusing to take the evidentiary and PBT tests. The court
properly concluded that defendant could not enter evidence about why she refused—not specifying
whether as to the evidentiary or preliminary tests—because her reasons for refusing either test
were not relevant to the elements of the refusal charge.

       In a similar vein, defendant argues that she was prevented from presenting a full defense
because the court limited her ability to explain her reasons for refusing to take the test. There is
no merit to this claim insofar as her reasons for declining to take either the evidentiary or
preliminary tests were not relevant to the elements of the refusal charge.

                                                  7
(“When interpreting a statute our goal is to give effect to the intent of the Legislature, and to do so

we first look at the plain, ordinary meaning of the statute. If the plain language is clear and

unambiguous, we enforce the statute according to its terms.” (quotation omitted)). If there is any

ambiguity in the meaning of a word, “we look to the general context of the statutory language, the

subject matter, and the effects and consequences of our interpretation.” Shea v. Metcalf, 167 Vt.

494, 498, 712 A.2d 887, 889 (1998).

       ¶ 17.   Even if we accepted defendant’s argument that the word “results” in § 1203(f)

encompasses not just numerical data, but a defendant’s choice to refuse the test, we would reject

defendant’s argument that the statute prohibits admitting the PBT in the refusal stage of this trial.

The PBT was not being used in the refusal stage to demonstrate that defendant was, or thought she

was, guilty of DUI. That was not an element of the refusal charge. The refusal to take the PBT

was entered to show an element of the refusal charge—that the officer had reasonable grounds to

believe that defendant was driving under the influence when he asked for the evidentiary test. See

23 V.S.A. § 1201(b) (describing elements of refusal as including whether officer made “reasonable

request under the circumstances for an evidentiary test where the officer had reasonable grounds

to believe the person” was committing DUI). This is exactly the use contemplated by § 1203(f),

which allows use of a PBT “result” to demonstrate whether the officer had a reasonable basis to

ask for an evidentiary test. Therefore, this statute did not preclude admission of the refusal PBT

for the purpose it was used in the refusal prosecution.

       ¶ 18.   For the first time on appeal, defendant also argues that admitting the PBT refusal

in the criminal refusal prosecution to prove her consciousness of guilt to DUI violated her right to

due process and the rules of evidence.4 Defendant reasons that because an element of the refusal


       4
          The dissent concludes that it was unconstitutional to admit defendant’s refusal to take
the PBT for the purpose of determining whether there was probable cause to ask for an evidentiary
test. This differs from the constitutional argument raised by defendant on appeal—that the PBT

                                                  8
charge was whether the officer had reasonable grounds to believe that she was committing a DUI,

essentially the officer was using her refusal to take the PBT as consciousness of her guilt to DUI,

which was both unconstitutional and unduly prejudicial. These arguments were not raised in the

trial court and therefore not properly preserved for appeal.          Moreover, we disagree with

defendant’s logic. Admitting defendant’s PBT refusal to prove her guilt to DUI is different from

admitting the PBT refusal to evaluate whether the officer had reasonable grounds to ask for an

evidentiary test when the existence of reasonable grounds is an issue to be decided.5 We

underscore that we are not evaluating whether the PBT refusal was properly admitted in the DUI

proceeding to demonstrate consciousness of guilt. Defendant was acquitted on that charge. In the

refusal prosecution, the PBT was not admitted to demonstrate defendant’s consciousness of guilt



refusal could not be admitted to demonstrate consciousness of guilt to DUI. The constitutional
issue identified by the dissent is complex and deserves full analysis. Because the parties did not
raise the constitutional issue identified by the dissent, we do not analyze it. DeYoung v. Ruggiero,
2009 VT 9, ¶ 24 n.2, 185 Vt. 267, 971 A.2d 627 (explaining that Court would not reach issue not
raised by parties below or on appeal). We do, however, feel compelled to point out that many of
the cases cited by the dissent for the proposition that a refusal to consent cannot form the basis for
reasonable suspicion, in fact state that refusal to consent to a search cannot alone provide
reasonable suspicion. The U.S. Supreme Court explained that a refusal to listen or answer “without
more” does not furnish reasonable suspicion. Florida v. Royer, 460 U.S. 491, 498 (1983). Further,
in United States v. Santos, 403 F.3d 1120, 1125 (10th Cir. 2005), the court explains, in a sentence
prior to the quote provided in the dissent, that “[a] refusal to consent to a search cannot itself form
the basis for reasonable suspicion.” See also United States v. Manuel, 992 F.2d 272, 274 (10th
Cir. 1993) (explaining that “the exercise of a right to refuse consent alone cannot be the basis of
reasonable suspicion”).
       5
           It is well established that in determining whether there is probable cause, an officer can
consider information that would not necessarily be admissible in a criminal trial to prove guilt. In
Brinegar v. United States, 338 U.S. 160, 172-73 (1949), the U.S. Supreme Court explained that
there is a difference between what is required to show probable cause and what is required to prove
guilt. “There is a large difference between the two things to be proved, as well as between the
tribunals which determine them, and therefore a like difference in the quanta and modes of proof
required to establish them.” Id. at 173. Accordingly, evidence that may not be admissible to prove
guilt could be admissible in a hearing to demonstrate whether there was probable cause. Id. For
this exact reason, an argument that evidence cannot be admitted to prove consciousness of guilt is
not the equivalent of an argument that the evidence cannot be used by an officer in assessing
whether there was probable cause because these are separate standards.

                                                  9
to DUI. Therefore, we do not reach these arguments. Defendant has not proffered any other basis

on which the court should have excluded the PBT refusal in the refusal prosecution. See Rajda,

2018 VT 72, ¶ 19 (citing Vermont Rule of Evidence 402 for proposition that “[a]ll relevant

evidence is admissible, except as limited by constitutional requirements or as otherwise provided

by statute or by these rules or by other rules prescribed by the Supreme Court”). Therefore, we

conclude there was no error in admitting the PBT refusal in the refusal stage of defendant’s trial.

                                     II. Reasonable Grounds

       ¶ 19.   Defendant next argues that the State failed to meet its burden of demonstrating that

the officer had reasonable grounds to believe defendant was committing a DUI. As set forth above,

the offense of criminal refusal is as follows: “A person who has previously been convicted of a

violation of this section shall not operate, attempt to operate, or be in actual physical control of

any vehicle on a highway and refuse a law enforcement officer’s reasonable request under the

circumstances for an evidentiary test where the officer had reasonable grounds to believe the

person was in violation of subsection (a) of this section.” 23 V.S.A. § 1201(b). Reasonable

grounds as used in this section equates to probable cause, which requires that “the facts and

circumstances known to an officer are sufficient to lead a reasonable person to believe that a crime

was committed and that the suspect committed it.” State v. Perley, 2015 VT 102, ¶ 19, 200 Vt.

84, 129 A.3d 93 (quotation omitted). This is determined by examining the totality of the

circumstances. Id. ¶ 20.

       ¶ 20.   Before evaluating whether the facts were sufficient in this case, we address

defendant’s claim that the court’s instructions and statements by the State communicated the

wrong standard. First, defendant appears to assert that the court’s instructions implied a lesser

standard than probable cause. As to reasonable grounds, the court instructed that this “means that

the officer had made specific observations reasonably supporting an inference that [defendant] had


                                                10
been operating a motor vehicle while she was under the influence of intoxicating liquor.”

Defendant failed to object to this instruction at trial and therefore the objection is not preserved for

appeal. In any event, this description of reasonable grounds is almost identical to the instruction

we approved of in Perley, 2015 VT 102, ¶ 22, and therefore we conclude there was no error.

        ¶ 21.   Defendant also implies that the jury was permitted to convict under a lesser standard

of reasonable suspicion because of statements made by the State. Throughout closing argument,

the prosecutor described that the standard for refusal was whether the officer had reasonable

grounds to suspect that defendant was impaired while driving and whether the request to take an

evidentiary test was reasonable. In a rebuttal closing argument, the prosecutor stated that in the

refusal prosecution the State had to prove “reasonable suspicion of the officer that [defendant] was

impaired by alcohol.” On appeal, defendant argues that the use of “reasonable suspicion” in this

one instance resulted in error. Defendant did not object to the prosecutor’s statement at the time

and therefore this claim is not preserved for appeal. State v. Turner, 2003 VT 73, ¶ 16 n.2, 175

Vt. 595, 830 A.2d 122 (mem.) (explaining that where defendant failed to object to allegedly

prejudicial statement made by State in closing argument, issue was not preserved for appeal). In

any event, this one use of “reasonable suspicion” was harmless given the court’s instruction that

clearly required a finding of reasonable grounds.

        ¶ 22.   Here, there were sufficient facts to allow the jury to find that the officer had

reasonable grounds to believe defendant committed a DUI. These facts included that defendant,

who was coming from the direction of a bar, drove over the speed limit, had watery eyes and

slurred speech, had a faint odor of alcohol, exhibited clues of intoxication during field sobriety

tests, and refused to take a PBT.




                                                  11
                                      III. Evidence of Refusal

        ¶ 23.   Defendant’s final argument concerns defendant’s question to law enforcement

regarding whether it was too late to take the evidentiary test. When law enforcement requests that

a person submit to an evidentiary test, “[t]he person must decide whether or not to submit to the

evidentiary test or tests within a reasonable time and not later than 30 minutes after the time of the

initial attempt to contact the attorney.” 23 V.S.A. § 1202(c); see also State v. Bonvie, 2007 VT

82, ¶ 26, 182 Vt. 216, 936 A.2d 1291 (explaining that defendant can reconsider and take test if

request is made in reasonable time, but no more than thirty minutes after first attempt to contact

attorney). On appeal defendant asserts that the elements of the statute were not met because

defendant offered to take the test after her initial refusal and the State failed to prove that

defendant’s offer was made beyond the thirty-minute period. The State argues that § 1202(c) is

not an additional element of the charge that the State is affirmatively required to prove. In the

alternative, the State argues that defendant’s statement was too vague to amount to an offer to take

the test.

        ¶ 24.   We do not reach the parties’ legal arguments because we conclude that defendant

did not preserve this objection and has not argued plain error on appeal. In the DUI portion of the

trial, in response to the State’s admission of defendant’s refusal to take the evidentiary test,

defendant sought to admit the fact that after her initial refusal she asked if it was too late to take

the test and police declined to allow her to take the test. The State sought to exclude the testimony,

proffering that defendant’s request was made beyond the thirty-minute window because the

consultation with the attorney lasted twenty-four minutes and the statement was made ten minutes

after that. The State also asserted that defendant’s question was equivocal and not the equivalent

to rescinding her refusal. Defendant’s attorney conceded that the request was not made in the

thirty-minute window and explained that defendant was not challenging the validity of the refusal


                                                 12
or seeking to suppress the refusal on those grounds; rather, she asserted that the evidence was

relevant to defendant’s state of mind. The court admitted the evidence for this purpose. Given

defendant’s concession at trial that the comment was made outside the thirty-minute period,

defendant’s objection is not preserved for appeal.

       ¶ 25.   As to her unpreserved arguments, defendant does not argue plain error on appeal

and therefore we do not address them. State v. White, 172 Vt. 493, 499, 782 A.2d 1187, 1192

(2001) (declining to address argument not raised in trial court and where no plain-error argument

made on appeal).

       Affirmed.

                                               FOR THE COURT:



                                               Associate Justice


       ¶ 26.   ROBINSON, J., dissenting. The majority’s conclusion that refusal to consent to

a roadside preliminary breath test (PBT) is admissible as evidence in connection with a charge of

criminal refusal to take an evidentiary breath test pursuant to 23 V.S.A. § 1201(b) runs afoul of

the Constitution. Because the erroneous admission of evidence concerning defendant’s refusal to

submit to the PBT was not harmless, I respectfully dissent.

                                 I. Constitutional Considerations

       ¶ 27.   The PBT is unquestionably a search for the purposes of the Fourth Amendment. In

contrast to the evidentiary breath test, nothing in Vermont law provides that drivers impliedly

consent to limitations on their right to refuse a warrantless PBT. An individual’s refusal to waive

a constitutional right—such as the right to refuse a warrantless search—cannot be used against

them in a criminal prosecution. Courts have repeatedly applied this principle in concluding that



                                                13
evidence that a driver refused to consent to a search following a roadside stop cannot be used to

support reasonable suspicion or probable cause. For these reasons, the trial court’s admission of

evidence that defendant refused to take the PBT violated defendant’s Fourth Amendment rights.6

       ¶ 28.   There can be no doubt that “a PBT is a search.” State v. Therrien, 2011 VT 120,

¶ 7, 191 Vt. 24, 38 A.3d 1129. As we have explained,

               Like breathalyzer tests, PBTs provide a chemical analysis of a
               citizen’s breath for the purposes of calculating blood-alcohol
               content. The PBT requires the production of “deep lung” breath and
               tests it for alcohol content. These processes appear to be no less
               private than those involved in a breathalyzer or a blood test. The
               administration of the test—in which one must breathe into a small,
               chemical-analysis       device—is     a     physical       intrusion.
               Common recognition of the sanctity of the person leads us to
               conclude that a PBT “intrudes into [an] area[ ]” that is the “subject
               of legitimate expectations of privacy,” and thus is a search under
               both the Vermont and United States Constitutions.

State v. McGuigan, 2008 VT 111, ¶ 11, 184 Vt. 441, 965 A.2d 511 (alteration in original).

       ¶ 29.   The PBT does not fall within any recognized exceptions or potential exceptions to

the right to refuse a warrantless search in connection with suspicion of driving while intoxicated.

It does not fall within the scope of the warrantless search-incident-to-lawful-arrest exception

endorsed by the Supreme Court in Birchfield v. North Dakota, __U.S. __, 136 S. Ct. 2160, 2174-

85 (2016) (concluding Fourth Amendment permits warrantless breath tests incident to arrests for

drunk driving). Moreover, Vermont’s implied-consent law applies only to the evidentiary breath

test, and not the PBT. In particular, Vermont law provides, “Every person who operates, attempts

to operate, or is in actual physical control of any vehicle on a highway in this State is deemed to

have given consent to an evidentiary test of that person’s breath.” 23 V.S.A. § 1202(a)(1)



       6
         For reasons set forth by Justice Johnson in her dissent in State v. Kinney, 2011 VT 74,
¶ 21, 190 Vt. 195, 27 A.3d 348, I have serious doubts about the relevance of the evidence that
defendant refused the PBT, wholly apart from the constitutional considerations. However, I rest
my dissent on the constitutional analysis.

                                                14
(emphasis added). For these reasons, a driver retains a constitutional right to refuse the PBT as a

warrantless, unconsented search. McGuigan, 2008 VT 111, ¶ 17 (holding defendant “may refuse

to submit to” PBT).

          ¶ 30.   The U.S. Supreme Court has recognized that the Constitution forbids the

government from pointing to a defendant’s post-arrest silence or invocation of the Fifth

Amendment privilege not to testify as evidence of guilt. See Doyle v. Ohio, 426 U.S. 610, 617-

18 (1976) (“[I]t would be fundamentally unfair and a deprivation of due process to allow the

arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”);

Griffin v. California, 380 U.S. 609, 614-15 (1965). As the Court explained in Griffin, comment

on a defendant’s invocation of the Fifth Amendment privilege acts as a penalty imposed for the

defendant’s exercise of the privilege. 380 U.S. at 614. “It cuts down on the privilege by making

its assertion costly.” Id.

          ¶ 31.   The same reasoning supports the conclusion that comment on a defendant’s

exercise of the Fourth Amendment right to refuse a warrantless search improperly burdens that

right. As the Ninth Circuit explained in an often-cited decision, the Supreme Court’s reasoning in

Griffin

                  is equally applicable to using against the defendant her refusal to
                  consent to entry into her home without a warrant. The right to refuse
                  protects both the innocent and the guilty, and to use its exercise
                  against the defendant would be, as the Court said in Griffin, a
                  penalty imposed by courts for exercising a constitutional right.

United States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978). Relying on a similar line of

reasoning, the vast majority of courts that have reached the question have concluded that an




                                                   15
individual’s exercise of Fourth Amendment rights by refusing to consent to a warrantless search

cannot be used as evidence of guilt.7


       7
          See, e.g., United States v. Runyan, 290 F.3d 223, 249 (5th Cir. 2002) (declining to address
question, but noting that “the circuit courts that have directly addressed this question have
unanimously held that a defendant’s refusal to consent to a warrantless search may not be presented
as evidence of guilt”); United States v. Moreno, 233 F.3d 937, 940-41 (7th Cir. 2000) (recognizing
that courts have held or suggested that government may not cite defendant’s refusal to consent to
warrantless search as evidence that defendant knew search would produce incriminating evidence);
United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (“We recognize that the failure to
consent to a search cannot form any part of the basis for reasonable suspicion, . . . and we note that
asking a jury to draw adverse inferences from such a refusal may be impermissible if the testimony
is not admitted as a fair response to a claim by the defendant or for some other proper purpose.”
(quotation and alteration omitted)); United States v. Thame, 846 F.2d 200, 205-08 (3d Cir. 1988)
(holding that prosecutor’s use of defendant’s refusal to consent to warrantless search of his bag, in
exercise of his Fourth Amendment rights, as evidence of guilt improperly penalized defendant’s
exercise of constitutional right); United States v. Turner, 39 M.J. 259, 262 (C.M.A. 1994)
(“Refusal to consent to a warrantless search is privileged conduct which cannot be considered as
evidence of criminal wrongdoing.” (quotation and citation omitted)); Padgett v. State, 590 P.2d
432, 434 (Alaska 1979) (holding defendant “had a right under the [F]ourth [A]mendment to the
Federal Constitution . . . to refuse to consent to a search of all or part of his car. That right would
be effectively destroyed if, when exercised, it could be used as evidence of guilt. It was error to
admit testimony of defendant’s refusal . . . .”); State v. Stevens, 267 P.3d 1203, 1208-09 (Ariz. Ct.
App. 2012) (holding trial court erred in permitting state to introduce as evidence of guilt that
defendant invoked her Fourth Amendment rights and explaining, “If the Fourth Amendment is to
provide rigorous protection against unlawful searches, occupants must not be dissuaded from
exercising the right for fear of incurring a penalty in any subsequent criminal prosecution”); People
v. Pollard, 2013 COA 31M, ¶ 32, 307 P.3d 1124 (holding “a person’s refusal to consent to a search
may not be used by the prosecution—either through the introduction of evidence or by explicit
comment—to imply the person’s guilt of a crime”); Gomez v. State, 572 So. 2d 952, 953 (Fla.
Dist. Ct. App. 1990) (“Comment on a defendant’s denial of permission to search a vehicle,
although not exactly the same thing as comment on a defendant’s right to remain silent, since the
Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same
magnitude.” (footnote omitted)); Garcia v. State, 712 P.2d 1375, 1376 (N.M. 1986) (holding
defendant’s “refusal to allow the warrantless search cannot be used as proof of . . . guilt”); State v.
Jennings, 430 S.E.2d 188, 200 (N.C. 1993) (recognizing that allowing police officers to testify that
defendant refused to allow search of her hotel room and car unconstitutionally penalized
defendant’s exercise of her Fourth Amendment rights); Commonwealth v. Welch, 585 A.2d 517,
520 (Pa. Super. Ct. 1991) (“[T]he assertion of a right cannot be used to infer the presence of a
guilty conscience. . . . The integrity of a constitutional protection simply cannot be preserved if
the invocation or assertion of the right can be used as evidence suggesting guilt.”); Simmons v.
State, 419 S.E.2d 225, 226-27 (S.C. 1992) (awarding post-conviction relief where defense counsel
had failed to object to introduction of evidence that defendant had declined to allow warrantless
search of his car, and to argument that this refusal suggested that defendant had something to hide);
State v. Jones, 230 P.3d 576, 582 (Wash. 2010) (en banc) (concluding that prosecutor’s comments
concerning defendant’s refusal to provide DNA swab sample were improper because defendant

                                                  16
       ¶ 32.   On the basis of this principle, courts have repeatedly recognized that a refusal to

consent to a search of a car following a roadside stop cannot be used to support reasonable

suspicion or probable cause any more than it can be used as direct evidence of guilt. United States

v. Wood, 106 F.3d 942, 946 (10th Cir. 1997) (“The failure to consent to a search cannot form any

part of the basis for reasonable suspicion.”); In re H.H., 94 Cal. Rptr. 3d 450, 453 (Ct. App. 2009)

(citing and affirming same); Damato v. State, 2003 WY 13, ¶ 19, 64 P.3d 700 (quoting and

applying same); see also Frazier v. Commonwealth, 406 S.W.3d 448, 455 (Ky. 2013) (“While

[defendant’s] refusal to consent to a search may have aggravated the officers, that refusal cannot

be considered as a basis for reasonable suspicion of criminal activity, as such a determination

would violate the Fourth Amendment.”); Longshore v. State, 924 A.2d 1129, 1159 (Md. 2007)

(“[A] person’s refusal to consent to a warrantless search cannot form the basis of reasonable

suspicion or probable cause.”); People v. Kavanaugh, 907 N.W.2d 845, 849 n.7 (Mich. 2017)

(holding that defendant’s refusal to consent to search is not grounds for reasonable suspicion and

that consideration of refusal would violate Fourth Amendment). Cf. Florida v. Royer, 460 U.S.

491, 498 (1983) (holding that refusal to listen to or answer officer’s questions did not furnish

reasonable grounds for detaining individual even momentarily). As the Tenth Circuit explained,

               If refusal of consent were a basis for reasonable suspicion, nothing
               would be left of Fourth Amendment protections. A motorist who
               consented to a search could be searched; and a motorist who refused
               consent could be searched, as well.             With considerable
               understatement, this Court has observed that the requirements of
               reasonable suspicion and probable cause for warrantless searches
               and seizures would be considerably less effective if citizens’
               insistence that searches and seizures be conducted in conformity
               with constitutional norms could create the suspicion or cause that
               renders their consent unnecessary.

had Fourth Amendment right to refuse to provide sample); State v. Banks, 2010 WI App 107, ¶
24, 790 N.W.2d 526 (“[I]t is a violation of the defendant’s right to due process for a prosecutor to
comment on a defendant’s failure to consent to a warrantless search. It has long been a tenet of
federal jurisprudence that a defendant’s invocation of a constitutional right cannot be used to imply
guilt . . . . ” (citations omitted)).

                                                 17
United States v. Santos, 403 F.3d 1120, 1126 (10th Cir. 2005) (quotation omitted)

       ¶ 33.   This principle applies regardless of whether the search at issue involves a person’s

car or a person’s breath: There is no logical distinction between the two scenarios. Both involve

using an individual’s exercise of constitutional rights by refusing to consent to a warrantless search

as a factor supporting reasonable suspicion, probable cause, or guilt. In both cases, admitting the

refusal evidence to support what is essentially a probable-cause determination would create the

same Catch-22 noted by the Tenth Circuit—heads I win, tails you lose.

       ¶ 34.   Finally, I don’t understand the majority’s attempt to distinguish consideration of

the PBT to demonstrate that the defendant was guilty of driving under the influence (DUI) from

consideration of the test to demonstrate that the officer had reasonable grounds to believe that

defendant was guilty of driving under the influence. Whether the issue before the jury was the

officer’s reasonable grounds to believe that defendant was driving under the influence (for

purposes of the refusal charge), or the jury’s assessment of whether defendant was, in fact, driving

under the influence (for purposes of the DUI charge), the inference purportedly supported by the

refusal evidence, as opposed to the measure of proof required to establish the element in question,

was the same. In both cases, the only possible theory of relevance was that evidence of defendant’s

refusal to consent to the warrantless search has some probative value as to the likelihood that she

was driving under the influence. This is precisely the inference court after court has recognized is

constitutionally proscribed.8




       8
          I do not rule out the possibility that, although the refusal evidence may not be admitted
to show reasonable suspicion, probable cause, or guilt of DUI, in some cases it may be admissible
for other purposes. See, e.g., Leavitt v. Arave, 383 F.3d 809, 828 (9th Cir. 2004) (per curiam)
(prosecutor’s comment on defendant’s refusal to submit to blood test properly admitted “to attack
his [unelicited] claim of cooperation”).

                                                 18
       ¶ 35.   The majority suggests otherwise, asserting that “[a]dmitting defendant’s PBT

refusal to prove her guilt to DUI is different from admitting the PBT refusal to evaluate whether

the officer had reasonable grounds to ask for an evidentiary test when the existence of reasonable

grounds is an issue to be decided.” Ante, ¶ 18. If it violates the defendant’s due process rights to

introduce evidence that she exercised her constitutional right to refuse the PBT in order to show

that she had some consciousness of guilt and was therefore more likely to have been guilty beyond

a reasonable doubt of DUI, it violates those same rights to introduce the refusal evidence to show

that she had some consciousness of guilt such that the officer had probable cause to believe she

was guilty of DUI. In both cases, the jury is invited to infer from her refusal that she had some

consciousness of guilt that made it more likely that she was driving under the influence. In one

case, the jury was asked whether the State had proven her guilt to DUI beyond a reasonable doubt,

and in the other, the jury was asked whether the officer had reasonable grounds to suspect she was

guilty of DUI—but the inference from her refusal to take the PBT to an increased likelihood that

she was driving under the influence is the same.

       ¶ 36.   The majority rightly notes that the fact that evidence is not admissible at trial does

not mean that it cannot be considered by an officer in determining whether there is probable cause.

Ante, ¶ 18 n.5 (citing Brinegar v. United States, 338 U.S. 160, 173 (1949)). As the U.S. Supreme

Court explained in that case, under the rules of evidence, “Much evidence of real and substantial

probative value goes out on considerations irrelevant to its probative weight but relevant to

possible misunderstanding or misuse by the jury.” 338 U.S. at 173. The Court recognized the

different purposes of the “probable cause” requirement and the State’s burden to prove to a jury

defendant’s guilt beyond a reasonable doubt. Accordingly, it found no error in the trial court

considering, in connection with a suppression motion concerning probable cause, an officer’s prior




                                                19
arrest of a defendant for illegal transportation of liquor several months before the contested search

but then excluding the same evidence from the trial on guilt.

        ¶ 37.   But the fact that not all evidence that is inadmissible at trial is impermissible for

the purpose of establishing probable cause does not mean that the probable-cause determination

can rest, even in part, on evidence and inferences that are constitutionally proscribed. If the theory

of relevance with respect to refusal—or, more specifically, with respect to the officer’s reasonable

grounds to request an evidentiary test—is something other than an inference of consciousness of

guilt on the basis of defendant’s exercise of his constitutional right to refuse the PBT , the majority

has not explained what that theory would be or why the Constitution allows the State to use

defendant’s refusal to consent to the PBT in the one setting, even if not the other.

        ¶ 38.   For the above reasons, the trial court’s admission of evidence that defendant refused

to waive her Fourth Amendment rights by consenting to a warrantless search in the form of a PBT

was erroneous—both as to the charge of DUI and the charge of criminal refusal of an evidentiary

test.

                                         II. Harmless Error

        ¶ 39.   The erroneous admission of defendant’s refusal to take the PBT was not harmless.9

“For the error to be harmless, the reviewing court must find beyond a reasonable doubt that the


        9
          I review this question applying a harmless-error standard because defendant objected to
admission of the PBT refusal evidence multiple times during the DUI stage of the trial. The theory
of admissibility at the DUI stage and the refusal stage was the same—that the refusal had some
probative value as to the likelihood that defendant was driving under the influence. The only
difference between the two stages of the trial was that the State’s burden in the DUI phase was to
prove that defendant was guilty of DUI beyond a reasonable doubt, whereas the State’s burden in
the refusal phase was to show probable cause to believe that defendant was driving under the
influence. See State v. Perley, 2015 VT 102, ¶ 19, 200 Vt. 84, 129 A.3d 93. Moreover, the only
additional evidence admitted at the refusal stage of the trial was evidence of defendant’s prior
conviction, which was a necessary element of the criminal-refusal charge under 23 V.S.A.
§ 1202(b). The evidence in the refusal stage did not replow the PBT-refusal ground. In
considering whether the State had proven the essential elements of the refusal charge, the jury
relied on the prior-conviction evidence as well as all of the evidence presented at the DUI stage,

                                                  20
jury would have returned a guilty verdict regardless of the error. When the error involves improper

admission of evidence, the error cannot be harmless if there is a reasonable possibility that the

evidence complained of might have contributed to the conviction.” State v. Oscarson, 2004 VT 4,

¶ 29, 176 Vt. 176, 845 A.2d 337 (quotations omitted).

       ¶ 40.   Defendant’s conviction for criminal refusal was far from assured.              To find

defendant guilty of criminal refusal, the jury had to find, beyond a reasonable doubt, that the officer

had reasonable grounds to suspect her of driving under the influence and reasonably requested the

evidentiary test. As the majority rightly notes, “reasonable grounds” in this context is essentially

“probable cause.” Ante, ¶ 20. The jury making this determination acquitted defendant of the

actual DUI charge. Although the jury’s determination that the State had not sustained its burden

beyond a reasonable doubt is not dispositive, it reflects that the evidence that defendant was driving

under the influence is far from a slam dunk.

       ¶ 41.   The evidence of the officer’s probable cause was his direct-examination testimony

that: (1) he observed defendant walking to her car from the direction of a bar; (2) he observed

defendant driving ten miles per hour over the speed limit; (3) on his second visit to defendant’s

vehicle after making the stop, but not the first, he “could faintly smell alcoholic drinks coming

from inside of the car;” (4) on his second visit but not his first he observed defendant’s speech was

“somewhat slurred”; (5) on his second visit but not his first he observed defendant’s eyes

“appeared to be kind of watery”; (6) he observed defendant exhibiting three clues when she

performed the walk-and-turn test; and (7) he observed defendant exhibiting one clue when she

performed the one-leg stand test. On cross-examination, he added that he heard some slurred


including the objected-to evidence of the PBT refusal. It’s not clear when defendant should have
or even could have re-raised the objection to the previously-admitted evidence. Even if the
objection had not been properly preserved, for the same reasons outlined in my harmless-error
analysis, I would conclude that admission of evidence so squarely violative of defendant’s due
process rights in light of the Fourth Amendment rose to the level of plain error.

                                                  21
speech during his first visit to defendant’s car. The jury saw dashcam video of the stop, including

of the walk-and-turn and one-leg stand tests, though defendant’s lower legs and feet were

sometimes blocked from view by the hood of the patrol car. Defendant gave testimony offering

innocent explanations for each of the items testified to by the officer, including exhaustion, that

any smell of alcohol was because she had just finished a shift of waitressing, during which she had

served drinks and alcohol had spilled on her, and—with regard to the dexterity tests—a bad ankle

and that the ground was uneven and rocky. The officer also testified to the ground being “slanted”

and “uneven” and to the presence of “some loose stones on top of the dirt.”

        ¶ 42.   With only that evidence in mind, and no evidence of the PBT refusal, a reasonable

jury could have concluded beyond a reasonable doubt that the officer had probable cause to request

an evidentiary test. This evidence was sufficient to get to a jury on the refusal charge. But I cannot

conclude beyond a reasonable doubt that it would have credited all of the officer’s testimony and

concluded that the officer’s observations supported probable cause. As noted, the jury did not

believe beyond a reasonable doubt that defendant was driving under the influence, even, as

explained in the jury instructions, “to the slightest degree.” The jury saw video of defendant

performing the field dexterity tests and, despite the officer’s testimony regarding “clues,” could

have concluded that defendant’s performance did not suggest that she was under the influence of

intoxicating liquors. The jury heard the audio associated with the video and, despite the officer’s

testimony regarding slurred speech, could have concluded that defendant’s speech was not

particularly slurred. It is well within the realm of reasonable doubt that evidence of her PBT

refusal tipped the scales for the jury in its finding that the officer had probable cause to believe she

was driving under the influence and reasonably requested the evidentiary test. And such probable

cause, or “reasonable grounds,” is an essential element of the criminal refusal charge.




                                                  22
       ¶ 43.   Because “there is a reasonable possibility that the evidence complained of might

have contributed to the conviction,” Oscarson, 2004 VT 4, ¶ 30 (quotations omitted), I would

vacate defendant’s conviction and remand for a new trial on the refusal charge in which evidence

of defendant’s refusal to submit to the PBT is excluded.

       ¶ 44.   I am authorized to state that Justice Skoglund joins this dissent.




                                            Associate Justice




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