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@state.vt.us 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.


                                        2015 VT 102

                                        No. 2013-480

State of Vermont                                             Supreme Court

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

Timothy P. Perley                                            March Term, 2015


James R. Crucitti, J.

William H. Sorrell, Attorney General, and Sarah Katz and John Treadwell, Assistant Attorneys
 General, Montpelier, and James A. Hughes, Franklin County State’s Attorney, St. Albans, for
 Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and
 Sidney Wilson, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.


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


        ¶ 1.   EATON, J. Defendant appeals from his conviction for refusing to submit to an

evidentiary test, having previously been convicted of driving under the influence. He argues that

the court should have granted his motion for judgment of acquittal because the State failed to

prove the “reasonableness” of the State’s request for an evidentiary breath test beyond a

reasonable doubt. We affirm.

        ¶ 2.   Defendant was charged with numerous crimes in March 2013, including: leaving

the scene of an accident; violating conditions of release; operating with a suspended license;
driving under the influence (DUI), third offense; and refusing to submit to an evidentiary test.

Defendant pled nolo contendere to the first three charges.

       ¶ 3.     In July 2013, defendant moved to dismiss the DUI #3 and the test-refusal charges

under Vermont Rule of Criminal Procedure 12(d) for lack of a prima facie case. Defendant

argued that the State lacked substantial admissible evidence that he had consumed alcohol at the

time he was observed operating a vehicle. Given this, he argued that the DUI #3 charge must be

dismissed.     For the same reason, defendant asserted that the test-refusal charge must be

dismissed because the officer lacked “reasonable grounds” to believe that he was operating while

intoxicated.

       ¶ 4.     In an August 2013 entry order, the court granted defendant’s motion in part and

denied it in part. It found as follows. The State alleged that at 12:05 p.m. on the date in

question, defendant was observed operating a motor vehicle on a public highway and he was

involved in a motor vehicle accident in Enosburg. Defendant fled the scene, and police finally

located him at 2:00 p.m. outside the courthouse in St. Albans, exiting his father’s car. Defendant

showed signs of intoxication and he was arrested.

       ¶ 5.     The trial court found that, despite the inferences that might be drawn from

defendant’s refusal to submit a breath sample, the State did not argue that it had substantial

admissible evidence to support the DUI #3 charge. For this reason, the court dismissed the DUI

#3 charge. As to the test-refusal charge, the court found sufficient evidence to show that

defendant refused a law enforcement officer’s reasonable request for an evidentiary test where

the officer had reasonable grounds to believe that the person was driving under the influence.

The court found that the officer had information that defendant was operating a motor vehicle in

a negligent manner, that he struck another vehicle, fled from the scene and nearly struck a town




                                                2
plow truck and another vehicle in the process. A witness estimated that defendant was driving

approximately 70 mph on a narrow two-lane highway. The officer looked for defendant at his

residence, but no one was there, although the officer noticed house keys hanging from the

outside lock. Approximately two hours later, defendant arrived at the courthouse as a passenger

in his father’s car and was approached by police. Defendant showed signs of intoxication.

Under these circumstances, the court concluded that the officer had much more than “reasonable

grounds” to request that defendant submit a breath sample for testing. It thus denied the motion

to dismiss the test-refusal charge.

       ¶ 6.    A jury trial followed. Various witnesses testified to the events on the day in

question. The arresting officer also testified. He explained that on the day in question, he was

on duty and received word of a motor vehicle crash. He learned that defendant had fled the

scene. A description of defendant’s car was broadcast over the police radio. The officer

patrolled the area looking for defendant and ultimately found him at approximately 2:00 p.m. at

the courthouse. At that time, the officer smelled a strong odor of intoxicants emanating from

defendant and observed defendant’s bloodshot watery eyes. The officer did not see any alcohol

containers in defendant’s father’s car. Defendant was arrested for leaving the scene of an

accident, suspicion of DUI, and other related charges. The officer explained that he suspected

defendant of DUI because a witness had put defendant at the scene of an accident at

approximately noon, and when he was finally located two hours later, defendant showed obvious

signs of impairment.

       ¶ 7.    The officer then described processing defendant for suspicion of DUI at the police

barracks. He read the DUI processing form to defendant. He informed defendant of the

potential consequences of refusing a breath test. He asked defendant if he would like to speak




                                               3
with a lawyer before deciding to submit to a test. Defendant responded by asking if his attorney

Mike Ledden was there. The officer said that Mr. Ledden was not there and asked defendant if

he wanted to be put in contact with a public defender. Defendant said no. Defendant then

refused to take an evidentiary breath test and the officer printed out a DUI refusal ticket.

       ¶ 8.    When asked at trial how he knew that Mr. Ledden was not at the police barracks,

the officer explained that it was unusual to have an attorney at the police barracks and it would

have been known if one was present. He further explained that there were dispatchers at the

front windows of the police barracks and it was the dispatchers’ general practice to let an officer

know if an attorney arrived.

       ¶ 9.    On cross-examination, the officer indicated that he had decided to request a breath

test based on defendant’s apparent intoxicated state at the courthouse and not based on the fact

that defendant had left the scene of the accident. The officer also noted that when he found

defendant at the courthouse, defendant walked away from him, stating that he was going to speak

with Mike Ledden, who was defendant’s attorney for another case being heard at the courthouse

that day. The officer stated that at that point, he could not just let defendant walk away and

defendant was taken into custody. The officer reiterated that he had offered to contact an

attorney for defendant during the DUI processing, and that aside from asking if Mike Ledden

was at the police barracks, defendant did not ask to be put in contact with Mike Ledden or ask

the officer to call Mike Ledden. Defendant did not put on any evidence.

       ¶ 10.   At the close of the evidence, defendant moved for a judgment of acquittal. He

argued that there was no direct evidence to show that he had consumed alcohol before the car

accident, and noted that police did not locate him until an hour and fifty-five minutes after the

accident was called in. Defendant pointed to the officer’s trial testimony that, in deciding to




                                                  4
request the breath sample, the officer had not factored in defendant’s decision to leave the scene

of the accident. Defendant maintained that the officer knew only that he had been driving at

12:05 p.m., and that by 2:00 p.m., he had consumed alcohol.

       ¶ 11.   The court denied the motion. It explained that even if it looked at the definition

of probable cause, which it believed would be required when defendant was arrested, that did not

require a “more likely than not” standard as articulated by this Court. The court recognized the

possibility, as developed by defendant, that defendant consumed all of his alcohol after the

accident occurred. It reasoned, however, that neither the State nor the officer needed to exclude

that possibility in determining reasonable grounds because probable cause did not require the

situation to be more likely than not. The court concluded that there were reasonable grounds to

request the test, and the State clearly met the remaining elements of the crime as well. The court

thus denied defendant’s motion for judgment of acquittal. The jury found defendant guilty, and

this appeal followed.

       ¶ 12.   Defendant first argues that the State failed to prove that the officer had reasonable

grounds to believe that he was operating under the influence. Defendant maintains that there was

no evidence as to when he consumed alcohol or that his consumption of alcohol impaired his

driving. He argues that given the delay between the accident and his arrest, no reasonable juror

could conclude that the officer had reasonable grounds to request a breath test.

       ¶ 13.   Defendant also asserts that the State failed to meet a different element of the

crime—that the officer’s request for a breath sample was “reasonable”—given the lapse of time

between the accident and the request and because the officer “interfered” with his right to consult

with an attorney prior to requesting an evidentiary test. These arguments are raised for the first

time on appeal and as defendant neither argues nor shows any plain error, we do not address




                                                 5
them. See State v. Emmi, 160 Vt. 377, 380, 628 A.2d 939, 941 (1993) (argument not raised in

trial court will not be considered for first time on appeal, absent plain error).

       ¶ 14.   The officer testified that when he first encountered defendant near the courthouse

and began to question him, defendant walked away saying that he was going to go talk with his

lawyer, Mike Ledden. The officer knew that Mike Ledden, a public defender, was defendant’s

lawyer in another matter. At that point, the officer arrested defendant, and defendant was

transported to the police barracks for processing. During the ensuing DUI processing, the officer

asked the defendant whether he wanted to speak with a lawyer, and defendant responded with a

question: “Is Mike Ledden here?” Assuming that he would know if there was a lawyer at the

barracks, the officer responded, “No.” In his testimony, the officer acknowledged that he made

no attempt to contact attorney Ledden for defendant, even though his ordinary practice would be

to contact a specific attorney if so requested by an individual in defendant’s situation. The

officer asserted that “at no point did [defendant] ask to be put in contact with” Mike Ledden.


       
           We note, however, that the record shows that defendant was afforded his statutory right
to consult with an attorney prior to deciding whether to give a breath sample. The law provides
an individual with a limited statutory right to consult with an attorney before deciding whether to
submit to an evidentiary test. 23 V.S.A. § 1202(c) (further explaining that person must decide
whether to take test within reasonable time and no later than thirty minutes from time of initial
attempt to contact attorney, and person must make decision at expiration of thirty minutes
regardless of whether consultation took place). By statute, a defendant must be informed of this
right at the time the test is requested. Id. § 1202(d)(4). The right to refuse to take a test is purely
statutory. State v. Brean, 136 Vt. 147, 151-52, 385 A.2d 1085, 1088 (1978).

        Beyond the limited statutory right to consult with an attorney prior to taking an
evidentiary test, which is afforded a defendant “at the time a test is requested,” defendant
identifies no legal basis for his “right to consult with an attorney” claim. He identifies no legal
source for his “right” to walk away from police and avoid being arrested for suspicion of DUI,
among other crimes, until he could find and consult with an attorney. To the extent defendant is
suggesting that the officer somehow illegally obtained his “refusal evidence,” defendant filed no
motion to suppress any evidence, and therefore, any such claim is waived. See V.R.Cr.P. 12(b),
(f) (providing that any motion to suppress evidence on ground that it was illegally obtained must
be raised prior to trial, and failure to do so constitutes waiver).


                                                   6
       ¶ 15.   In the aftermath of defendant’s effort to physically go speak with his lawyer, and

immediately following defendant’s question about whether his lawyer was there at the barracks

in response to the officer asking him if he wanted to talk to a lawyer, the officer’s suggestion that

defendant did not indicate that he wanted to talk to his lawyer is a strained interpretation of the

events. Nonetheless, we conclude that the circumstances do not support a plain error argument

in this case because after this exchange, and before seeking to administer the evidentiary test, the

officer asked defendant if he would like to speak with a public defender, and defendant declined.

See State v. Reynolds, 2014 VT 16, ¶ 33, 196 Vt. 113, 95 A.3d 973 (plain error requires “a

showing that the error strikes at the heart of defendant’s constitutional rights or results in a

miscarriage of justice” (quotation omitted)).

       ¶ 16.   Defendant is challenging the court’s denial of his motion for judgment of

acquittal. In analyzing his arguments, we apply our well-established standard of review and

consider if “the evidence, when viewed in the light most favorable to the State and excluding any

modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the

defendant is guilty beyond a reasonable doubt.” State v. Turner, 2003 VT 73, ¶ 7, 175 Vt. 595,

830 A.2d 122 (mem.) (quotation omitted). “A judgment of acquittal is proper only if the State

has failed to put forth any evidence to substantiate a jury verdict.” Id. The State presented

sufficient evidence to support the jury’s verdict here.

       ¶ 17.   Defendant was convicted of violating 23 V.S.A. § 1201(b), which provides:

                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 [operating under the influence of drugs or
               alcohol].




                                                  7
See also id. § 1202(a)(1), (3) (stating that every person who operates vehicle in Vermont is

deemed to have given consent to evidentiary test of that person’s breath for purpose of

determining person’s alcohol concentration or presence of other drug in blood, and evidentiary

test is required when law enforcement officer has reasonable grounds to believe that person was

operating vehicle under influence of drugs or alcohol).

       ¶ 18.   We agree with defendant that the term “reasonable grounds” is akin to probable

cause. See State v. Comstock, 145 Vt. 503, 506, 494 A.2d 135, 137 (1985) (stating in an

analogous context that “[t]he purpose of the ‘reasonable grounds’ language . . . is simply to

require that a certain amount of evidence exist before an officer may take a breath test”); Shaw v.

Vt. Dist. Ct., 152 Vt. 1, 5, 563 A.2d 636, 639 (1989) (recognizing that determination of whether

officer has “reasonable grounds to believe that” individual was DUI is similar to probable cause

determination made to obtain search or arrest warrant); State v. Dist. Ct., 129 Vt. 212, 215, 274

A. 685, 686 (1971) (stating that, like probable cause hearing, determination of whether office had

reasonable grounds to believe that individual was DUI “seek[s] a parallel sort of protection for

operators against an arbitrary exercise of this police power”); see also Ayler v. Dir. of Revenue,

439 S.W.3d 250, 254 (Mo. Ct. App. 2014) (“Reasonable grounds in a refusal case is virtually

synonymous with probable cause.” (quotation omitted)). But see Motor Vehicle Admin. v.

Spies, 82 A.3d 179, 181 n.1, 185 (Md. 2013) (under Maryland law, police may stop or detain a

person and request a breath test when officer “has reasonable grounds to believe [that person] is

or has been driving or attempting to drive a motor vehicle while under the influence of alcohol,”

and term “reasonable grounds” means “reasonable articulable suspicion and not preponderance

of the evidence or probable cause” (quotations omitted)).




                                                8
       ¶ 19.    “Probable cause . . . exists when 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. Arrington, 2010 VT 87, ¶ 11, 188 Vt. 460, 8 A.3d 483 (quotation

omitted).    This “is not a high bar: It requires only the kind of fair probability on which

reasonable and prudent people, not legal technicians, act.” Kaley v. United States, 134 S. Ct.

1090, 1103 (2014) (quotations and alterations omitted); see also Illinois v. Gates, 462 U.S. 213,

235 (1983) (“Finely tuned standards such as proof beyond a reasonable doubt or by a

preponderance of the evidence . . . have no place in the [probable-cause] decision.”); United

States v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007) (recognizing that “probable cause is a lower

standard than preponderance of the evidence; it requires only a probability or substantial chance

of criminal activity, not an actual showing of such activity” (quotation omitted)); State v. Towne,

158 Vt. 607, 614-16, 615 A.2d 484, 487-89 (1992) (rejecting notion that “probable cause” means

“more likely than not,” and construing term in common sense manner to mean reasonably

probable).

       ¶ 20.    In evaluating probable cause, we consider “the totality of the circumstances”

assessed in a “practical . . . common sense manner.” State v. Weisler, 2011 VT 96, ¶ 42, 190 Vt.

344, 35 A.3d 970 (quotation omitted); see also Florida v. Harris, 133 S. Ct. 1959, 1055-56

(2013) (in evaluating probable cause, Supreme Court has “rejected rigid rules, bright-line tests,

and mechanistic inquiries in favor of a more flexible, all-things-considered approach,” and Court

has consistently looked to “totality of the circumstances” in evaluating whether State has met

“this practical and common-sensical standard”). We emphasize that “probable cause requires

only a probability or substantial chance of criminal activity, not an actual showing of such




                                                9
activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a

showing of probable cause.” Gates, 462 U.S. at 243 n.13.

        ¶ 21.   The Missouri Court of Appeals articulated a similar standard in evaluating

“reasonable grounds” for purposes of a DUI stop. As that court stated:

                Probable cause to arrest exists when the arresting officer’s
                knowledge of the particular facts and circumstances is sufficient to
                warrant a prudent person’s belief that a suspect has committed an
                offense. In determining whether there were reasonable grounds to
                arrest a driver for DWI, the trial court must evaluate the situation
                from the viewpoint of a cautious, trained, and prudent police
                officer at the time of the arrest. There is no precise test for
                determining whether probable cause exists; rather, that
                determination is based on the particular facts and circumstances of
                each individual case. At issue in a refusal case is whether the
                officer had reasonable grounds to believe the driver was
                intoxicated, not whether the driver actually was intoxicated. The
                level of proof necessary to establish probable cause is substantially
                less than that required to prove guilt beyond a reasonable doubt.

Ayler, 439 S.W.3d at 254 (citations omitted).

        ¶ 22.   The jury instructions in this case were consistent with the discussion above.

Thus, the trial judge instructed the jury that:

                 Reasonable grounds means that the officer had to make specific
                observations or information had been reported to him which
                reasonably supported an inference that [defendant] had been
                operating a motor vehicle while he was under the influence of
                intoxicating liquor.

                 ....

                 A person is under the influence of intoxicating liquor if his sole
                mental or physical abilities are diminished or affected in the
                slightest degree by intoxicating liquor.

                 An influence of intoxicating liquor may be proven by evidence of
                observable behavior indicating that [defendant] had consumed
                alcohol and ceased to retain full control even to the slightest degree
                over the faculties of mind or body.




                                                  10
                The State need not prove that [defendant] was actually under the
               influence. It must prove that the officer had reasonable grounds to
               believe that he was.

                The fact of the refusal is not to be considered as evidence that the
               officer had reasonable grounds to request the evidentiary test.
               Relevant observations may include his manner of driving or
               walking, his speech, the condition of his eyes, the odor of his
               breath, and any other physical appearance or conduct which could
               reasonably tend to prove his condition.

       ¶ 23.   There was sufficient evidence here to allow the jury to conclude that the officer

had “reasonable grounds to believe” that defendant had been driving under the influence of

alcohol.   As set forth above, the law enforcement officer learned that defendant had been

involved in a car accident around noon—on a day when the roads were clear—and that

defendant had fled the scene. The officer searched for defendant and finally located him slightly

less than two hours later in his father’s car. At that time, defendant showed obvious signs of

intoxication. The officer did not observe any alcohol containers in defendant’s father’s car. It

was not unreasonable under these circumstances for the officer to conclude that there was a

reasonable probability that defendant had been intoxicated at the time of the accident. We note

that the law provides a permissive inference that a person was under the influence of intoxicating

liquor in violation of 23 V.S.A. § 1201(a)(2) or (3) if the person’s alcohol concentration at any

time within two hours of the alleged offense was 0.10 or more. 23 V.S.A. § 1204(a)(3). The

officer knew the time of the accident here, which was less than two hours before defendant’s

arrest, and a “temporal connection” between the operation and the indicia of intoxication was

established.

       ¶ 24.   The fact that defendant left the scene of the accident is part of the totality of the

circumstances and, as the test for probable cause is an objective one, the officer’s subjective

analysis is irrelevant. See State v. Guzman, 2008 VT 116, ¶ 16, 184 Vt. 518, 965 A.2d 544



                                                11
(“Probable cause depends on whether there are objective facts to support such a finding, not

whether the officers subjectively believed there was probable cause.”); State v. Chicoine, 2007

VT 43, ¶ 8, 181 Vt. 632, 928 A.2d 484 (mem.) (stating that standard for finding probable cause

for warrantless arrest is whether “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” (emphasis added)).    We note that the officer testified that he considered the fact that

defendant had left the scene of the accident. It is obvious that he did so because this was the

only time defendant was known to have operated a motor vehicle. The officer’s explanation on

cross-examination was more about the indicia of intoxication that he observed at the courthouse,

which led him to believe that defendant was DUI. In other words, the officer did not assume that

defendant was drunk simply because he left the scene of the accident; rather, he saw obvious

signs that defendant was intoxicated at the courthouse and that led the officer to believe that

defendant had been driving while intoxicated.

       ¶ 25.   As the trial court observed, moreover, the officer did not have to rule out the

possibility of post-operation drinking in order to have probable cause. We note that there was no

evidence of post-operation consumption in this case. Defendant did not tell the officer that he

had been drinking after the accident, and the officer did not observe any alcohol containers in

defendant’s father’s car, the car that defendant had traveled in to the courthouse. Defendant did

not present any evidence about post-operation consumption at trial. In any event, as the trial

court stated, the officer did not need to exclude all hypothetical possibilities in order to have

reasonable grounds to believe that defendant had been operating under the influence.

       ¶ 26.   Defendant cites State v. Ollison, 236 S.W.3d 66 (Mo. Ct. App. 2007), as support

for his assertion that the officer could not have had reasonable grounds to believe that he was




                                                12
driving under the influence. We find this case unpersuasive. First, Ollison was not a criminal-

refusal case. The defendant there was charged with driving under the influence, and thus, the

State needed to prove beyond a reasonable doubt that the defendant operated a motor vehicle and

was intoxicated while doing so. As indicated above, the State here needed show only that the

officer had reasonable grounds to believe that defendant was driving under the influence. It did

not need to prove that defendant was in fact driving under the influence.

       ¶ 27.   The facts in Ollison are distinguishable as well. The defendant there was in a car

accident and was subsequently located at his in-laws’ home around 2:00 a.m. After failing a

series of roadside sobriety tests and blowing a .154% on a portable breath test, the defendant was

transported to the sheriff’s office where he blew a .168% on the DataMaster machine at 3:09

a.m., and was arrested for driving while intoxicated. The State in that case did not establish

when the car accident occurred—its evidence showed only that the accident had occurred

sometime between 7:00 p.m. and 1:20 a.m., a period in excess of six hours. In the instant case,

the arresting officer testified that he knew that defendant had been involved an accident less than

two hours before he encountered defendant, and he observed obvious signs of intoxication during

his encounter with defendant. It was for the jury to weigh the evidence presented, and the jury in

this case had sufficient evidence upon which to find defendant guilty.

       Affirmed.


                                               FOR THE COURT:



                                               Associate Justice




                                                13
