Wednesday, November 3, 2010

Fickle Fate Fingers Driver for DUI

by Andrew Delaney
State v. Young, 2010 VT 97

You cannot make this up. Listen. One night last summer, Defendant was driving home after an evening of drinking when a car came up behind him rather quickly. Not wanting to raise his profile, Defendant took his first right onto a side street to lose the potential tailgater. The car followed him. Defendant took his next right. Still the car followed. Defendant turned into a driveway. And yes, the car followed him. Defendant rolls down his window to apologize for turning in what seems to be the other car’s driveway and discovers that he has pulled into the driveway of an off-duty police officer returning home with his cruiser who proceeds to process him for DUI.

In a bit of understatement, the Court characterized this as an “improbably unlucky . . . sequence of events.” With due deference to the Court, this is hardly accurate. Improbably unlucky is when your car does not start outside the bar, or you have two flat tires in the middle of nowhere. This, however, was deliberate act of fate—a set of loaded dice provided by the cosmos. It is the stuff that faith is built on and sinners are converted from. It is proof that the universe works from time to time in strange, deliberate way and the best we can do is hang for the ride and use our directional signals.

Or contest and appeal as the Defendant here chose. At trial, Defendant moved to suppress evidence based on alleged unlawful seizure and lack of reasonable suspicion of wrongdoing. The trial court denied the motion and Defendant appealed pursuant to a conditional plea.

On appeal, Defendant argued that (1) the trial court erred in finding no seizure when the officer pulled in behind him; (2) that the officer lacked reasonable suspicion to justify an exit order; and (3) that the trial court’s factual findings were clearly erroneous. The Court did not find any of the arguments compelling, and affirmed.

Regarding the first argument the Court found that even assuming the off-duty officer “blocked” Defendant’s egress from the driveway the officer was acting much as a normal homeowner would. Because the officer was off duty, and there was no state action, there was no seizure under the Fourth Amendment. This makes perfect sense, actually. Whenever a potentially drunk and dangerous driver turns into my driveway, I like to make sure I block them in. It gives a teetotaler like me something fun to do on Saturday nights. Ah, but I digress.

On to the second argument, the Court noted that the trial court found that the Defendant stunk like a drunk and slurred his speech. The Court refers to two recent decisions, State v. Mara and State v. Santimore, to reiterate the principle that these two factors will, in nearly every case, provide reasonable suspicion to justify an exit order. Accordingly, the Court rejected Defendant’s second argument.

Finally, the Court addressed Defendant’s argument that the trial court’s factual findings were clearly erroneous. Defendant’s first point of contention was the trial court’s finding regarding his bloodshot and watery eyes. The Court notes that the trial court erred when it found that Mr. Young’s watery and bloodshot eyes, in part, justified the exit order. This is because, according to the evidence, the officer did not notice the watery and bloodshot eyes until after the exit order. Because the stink and the slurring were enough to justify the exit order, however, the Court chocks it up to harmless error and does not break stride.

Defendant also contended that the trial court’s findings ignored evidence that demonstrated a lack of reasonable suspicion—that Defendant was driving pretty well and had no problem producing his license and registration. The Court noted that the trial court’s province is to weigh this evidence, that the trial court specifically and impliedly mentioned the evidence, and that the trial court’s eventual factual findings were reasonable enough. Accordingly, the Court rejected Defendant’s final argument.

The lesson here is: if you are intoxicated and you pull into a police officer’s driveway, seconds before the officer comes home, you had best save your defense attorney money and invest in a strategic karma assessment because, Pal, the universe has a beef with you and things are coming due.

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