2010 VT 54


State v. Webb
(2009-280 & 2009-281)
 
2010
VT 54
 
[Filed
18-Jun-2010]
 
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, 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.
 
 

2010 VT 54

 

Nos. 2009-280
& 2009-281

 

State
of Vermont


Supreme Court


 


 


 


On Appeal from


    
v.


District
Court of Vermont,


 


Unit
No. 3, Franklin Circuit


 


 


Jonathan
Webb


March
Term, 2010


 


 


 


 


Michael S. Kupersmith, J.


 

Heather J. Brochu, Franklin County
Deputy State’s Attorney, St. Albans, for Plaintiff-Appellee.
 
William V. Cristman, Jr. of Law
Offices of Nicholas L.
Hadden, St. Albans, for 
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶
1.            
REIBER, C.J.   In
these parallel criminal and civil suspension
proceedings, defendant is charged with driving under the influence
(DUI) and
driving with a suspended license.  He appeals from a district
court order
denying his motion to suppress an evidentiary breath test.  He
contends that
the court erred in: (1) holding that the police did not improperly
interfere
with his right to an independent blood test; and (2) denying him the
opportunity to challenge the validity of the traffic stop.  We
affirm the trial
court’s ruling that the police did not improperly interfere
with defendant’s
right to an independent blood test, but we reverse and remand to
provide defendant
an opportunity to challenge the validity of the traffic stop.
¶
2.            
On March 15, 2009, a traffic stop led to
defendant’s arrest for DUI. 
Defendant was then transported to a police station in St. Albans for
processing.  The processing officer testified that defendant
was read his
implied-consent rights, including the right to consult with an attorney
and to
have additional independent tests performed at his expense. 
See 23 V.S.A. § 1202(d)
(setting forth information that must be conveyed to DUI
suspect).  Defendant
spoke with an attorney and provided a breath sample for
testing.  The test
result showed a blood alcohol content of 0.158.  The officer
then informed
defendant that he had discovered an outstanding arrest warrant for
defendant’s
failure to pay a fine and that, as a result, defendant would be lodged
rather
than released.  The officer informed defendant that, since he
was going to be
detained, the officer could arrange for him to be transported to the
hospital
for independent testing.  Defendant asked the officer several
questions about
the independent test and finally said “let’s do
it.”  The officer then
explained that the test was “at your own expense, just so you
know,” and
defendant asked whether it might cost a thousand dollars.  The
officer
responded that he did not know the cost.  Defendant then asked
whether it might
be “a few hundred dollars,” and the officer
acknowledged that it might be
“around two hundred.”  Defendant asked
several more questions about the test
and what purpose it served, and the officer then read defendant his
statutory
right to have arrangements made for the administration of an
independent blood
test at his own expense, under 23 V.S.A. § 1203a(b), which
defendant expressly
declined.
¶
3.            
A merits hearing was scheduled, and defendant filed a list
of the issues
to be raised, reciting verbatim most of the issues under 23 V.S.A.
§ 1205(h)(1)
that may be raised at a DUI hearing.  Defendant subsequently
filed a motion to
suppress, asserting that the officer’s “incomplete
and inaccurate information”
concerning the cost of the independent blood test had improperly
interfered
with his right to independent testing.  At the June 2009
hearing, defendant
attempted to cross-examine the investigating officer about the reason
for the
stop.  The State objected, observing that defendant had not
previously raised
the validity of the stop as an issue.  See id.
§ 1205(h)(2) (“Only
evidence that is relevant to an issue listed by the defendant may be
raised by
the defendant at the final hearing.”).  The court
agreed and sustained the
objection.  Following the hearing, the court issued a written
decision, finding
that the officer “did everything he was required to do under
the law with
respect to Defendant’s right to an additional evidentiary
test.”  The court
concluded that there was “no evidence that [the officer]
prevented or dissuaded
Defendant from obtaining an additional independent test.”
 Accordingly, the
court denied the motion to suppress as well as a subsequent motion to
reconsider.  Defendant entered a conditional plea of guilty to
DUI, second
offense, and driving with a suspended license.  This appeal
followed. 
I.
¶
4.            
Defendant contends that the processing officer provided
him with “incomplete
and inaccurate” information concerning the cost of an
independent blood test
which improperly discouraged him from exercising his
rights.   We disagree.  The
record supports the trial court’s conclusion that defendant
was neither misled
nor improperly deterred.  Although defendant initially
appeared to request
independent testing, stating “let’s do
it,” the officer correctly informed
defendant that it would be at his own expense, and defendant then
initiated a
series of questions about its cost and utility.  The officer
first indicated
that he did not know the cost.  Defendant asked whether it
might cost a
thousand dollars and subsequently guessed that it might be “a
few hundred,” and
the officer agreed that it might be “around two
hundred.”  Defendant then asked
several additional questions about the use of the independent test,
said
something to the effect of
“prolong[ing] . . . the
inevitable,” was read his right to have the police arrange
for an independent
test at his own expense, and finally declined the opportunity to be
tested.    
¶
5.            
Defendant cites no authority for the proposition that the
officer was
barred from accurately reminding defendant that the test was at his own
expense
or from attempting to respond to defendant’s
questions.  Nor has defendant
demonstrated that the officer’s responses were, in fact,
inaccurate; defendant
adduced no evidence showing the actual cost of an independent blood
test or
proving that the $200 figure was inaccurate or misleading. 
Nor has defendant
established that he was improperly deterred from exercising his
rights.  The
officer did not, for example, suggest that defendant would be compelled
to pay
for the test at the time of its administration, and defendant
acknowledged at
the hearing that he was never told that he would be required to pay for
the
test that night.  We thus find no basis to infer that
defendant was prevented
or improperly discouraged from exercising his rights.  The
cases cited by
defendant, in contrast, involve either clear violations of the
statutory
obligation to inform detained defendants of their right to have
arrangements
made for independent testing, State v. Karmen, 150
Vt. 547, 549, 554
A.2d 670, 671 (1988); State v. Normandy, 143 Vt.
383, 387, 465 A.2d
1358, 1360 (1983), efforts to discourage independent testing by
suggesting that
an independent blood test would yield a higher blood alcohol content
than that
achieved with a breath test, MacLeod v. State, 28
P.3d 943, 944-45
(Alaska Ct. App. 2001); State v. Minkoff, 2002 MT
29, ¶ 16, 42 P.3d
223, or outright refusals to provide independent testing, Snyder
v. State,
930 P.2d 1274, 1277-78 (Alaska 1996); In re Martin,
374 P.2d 801, 803 (Cal.
1962).  None of these circumstances were present
here.  Accordingly, we find no
merit to defendant’s claim and no basis to disturb the
judgment.
II.
¶
6.            
Defendant next contends that he gave adequate notice of
contesting the
validity of the underlying stop and that the trial court therefore
should have
allowed him to address this issue at the hearing.  We
agree.  The test of
adequate notice generally turns on whether the other parties were
afforded “an
adequate opportunity to prepare and respond to the issues [to be]
raised in the
proceeding.”  In re Twenty-Four Vt. Utils.,
159 Vt. 363, 369, 618 A.2d
1309, 1312-13 (1992) (quotation omitted).  Here,
defendant’s notice was
adequate.
¶
7.            
Defendant’s “list” of issues
to be raised included nearly all of the
issues enumerated under 23 V.S.A. § 1205(h)(1), including
“whether the law
enforcement officer had reasonable grounds to believe the person was
operating,
attempting to operate or in actual physical control of a vehicle in
violation
of section 1201.”  Id.
§ 1205(h)(1)(A).  We have interpreted this
provision as allowing defendants to raise the question of whether there
was a
reasonable basis for the stop in a DUI hearing.  State
v. Lussier, 171
Vt. 19, 23, 757 A.2d 1017, 1020 (2000) (“[W]e conclude that,
in permitting
defendants in a civil suspension proceeding to dispute whether the
processing
officer had reasonable grounds to believe that the motorist was driving
while
intoxicated, the Legislature assumed that a constitutional stop would
be a necessary
predicate to finding ‘reasonable grounds’ for
suspicion of DUI.”).  In Lussier,
we interpreted § 1205(h)(1)(A) as incorporating the
question of whether
the initial stop was valid because such an interpretation was necessary
to
avoid “stripping defendants in [civil suspension] proceedings
of their
constitutionally protected right to be free from unreasonable
stops.”  Id.  
¶
8.            
In light of Lussier,
defendant’s citing of § 1205(h)(1)(A)
in his list of issues to be raised at the hearing necessarily gave
notice to
the prosecutor that defendant was preserving his right to question the
validity
of the underlying stop.  In short, after Lussier,
§ 1205(h)(1)(A)
included as a matter of law the issue of the validity of the underlying
stop,
and the prosecutor was legally on notice that this was the
case.  For these
reasons, we hold that the trial court erred in preventing defendant
from
raising the validity of the underlying stop at the hearing.*
           
Reversed and
remanded for a hearing on the validity of the underlying stop.      

 
 

 


 


FOR
THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief Justice

 


* 
We note also that to hold otherwise could deprive defendant of
important
constitutional rights without a knowing, intelligent waiver of those
rights. 
Cf., e.g., State v. Cleary, 2003 VT 9,
¶ 15, 175 Vt. 142, 824 A.2d
509 (requiring that waivers of important constitutional rights be
knowing and
intelligent to ensure that such waivers are made voluntarily). 


