Wednesday, February 27, 2013

The Evanescent Drunk



State v. Dubuque, 2013 VT 3.

Today’s criminal defendant is a winner in the creative-arguments-to-suppress-evidence arena.  Defendant was driving drunk on Interstate 289 in Essex at approximately 8 in the morning when he flipped his car over.  The officer who was called to the scene arrested defendant and accompanied him in the ambulance to the hospital.


When it comes to testing a drunk driver’s blood-alcohol level (BAC), time is of the essence.  The Legislature, in its arbitrary wisdom, has determined that a BAC of .10 or higher “within two hours” of operating a vehicle qualifies one for DUI charges.  At approximately 9:30 AM, officer realized that he had a half hour to get defendant’s BAC.  Defendant had not yet been x-rayed or seen by medical personnel, and officer was told by hospital staff at 9:45 AM that they did not know how long it would take before he was discharged.  Nor was a breathalyzer available at the hospital.

Officer promptly processed defendant for driving under the influence of alcohol, and asked defendant to provide a blood sample.  Defendant refused, preferring to give a breath sample.  Unable to take defendant to a facility with a breathalyzer until he was discharged, officer transported defendant to two separate detox facilities across town, the first having refused to take him.  Defendant never provided a blood or breath sample, and officer did not request one after they left the hospital.  Several weeks later, defendant was arraigned on charges of “DUI #3 or Subsequent Test Refusal.”

In support of its case, the State submitted evidence of Defendant’s refusal to provide a blood sample.  Defendant did what all good criminal defendants do: he moved to suppress.  His chief argument was that officer, in traipsing across town with defendant to the next medical facility, passed several police stations with “reasonably available” breathalyzers, but failed to take defendant to one to take the test.  Officer argued in response that he could not reasonably test defendant’s BAC when hospital staff did not know how long it would take to treat and discharge defendant.  Time was tight, and officer had an uncertain timeline.

The trial court held a hearing and denied the motion to suppress, finding it was reasonable for officer to rely on the hospital personnel’s comments regarding when defendant could be released, and that under the circumstances a breathalyzer was not reasonably available.  Defendant entered a conditional plea, reserved the right to appeal the denial of his suppression motion, and appealed to the SCOV.

On appeal, the SCOV considers the same arguments raised below with an eye for whether the trial court was clearly erroneous in its conclusion.  Vermont favors breath tests over blood tests to determine a DUI suspect’s BAC, and Vermont law dictates that if you drive a vehicle on Vermont highways, you have consented to giving a breath test.  If a breathalyzer isn’t “reasonably available,” you are deemed to have consented to giving a blood test, and refusal to do that is refusal to take a BAC test, the crime with which defendant was charged.

The SCOV’s analysis turns on the reasonable availability of breathalyzers and the “evanescent nature” of alcohol in one’s breath.  The SCOV notes that, when the officer began processing defendant for a DUI, the two-hour window in which he had to test his BAC was nearly closed.  Defendant refused a blood test, the officer had no idea when defendant would be released from the hospital, and he could not transport defendant to a breathalyzer without his release. 

Nothing in the statute requires an officer to make herculean efforts to transport a suspect to a breathalyzer machine when he declines a blood test, regardless of how close they came to a police station on their way to the detox facilities.  Defendant’s argument is that officer should have interrupted defendant’s medical treatment to make him blow into a tube at a police station.  The SCOV finds this argument preposterous.  Officer reasonably relied on the statements of medical personnel in concluding the timeline was uncertain, and did not behave unreasonably in passing by breathalyzers on the way to the next facility.

Sadly for defendant, his clever attempt to suppress evidence fails.  Of course there is always a next time, but with the danger demonstrated by this escapade, Defendant should be aware that there is a good chance that next his blood sample may be involuntary. 

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