State v. Santaw, 2010 VT 111 (mem.).
For neither the first nor the last time, the SCOV has effectively walled off another area of potential DUI defense. For regular readers of this blog, the case will be familiar in what appears to be the SCOV’s long-term project to tighten up the standards governing DUI stops and initial processing and force the analysis to follow the actions of the Officer rather than any subjective expectations of the driver.
Defendant in this case was leading his buddy back home when the two cars passed a state Trooper. The ever-alert Trooper noticed the second car swerve onto the shoulder and stay there long enough to raise Trooper’s suspicion that distilled shenanigans were afoot. Turning around, Trooper noticed that the lead car, driven by Defendant, was also weaving and slightly crossing the divided yellow-line. Trooper decided to turn on his lights and pull the cars over. Both cars turned right into Defendant’s driveway and Trooper parked behind them.
By the time Trooper approached the second car, Defendant was out of his car and standing by his buddy’s driver’s side window. Trooper was overwhelmed by that old familiar scent of alcohol emanating.
Free of charge for the next class of trooper-trainees at the state academy, I present the following final exam question:
You have stopped two drivers. There is alcohol emanating, but you cannot tell who it is coming from. Without asking each driver to shout out the phrase “I heart hungry, hungry hippos,” How do you figure out who is over the limit?
The answer comes from our Trooper who asked the Defendant to go back to his car and get his license and registration. Trooper then followed and determined that Defendant was at least part of the source of the booze. Add to the mix a set of bloodshot and watery eyes, and we are off to the physical dexterity test. With less-than-impressive results, Trooper asks Defendant to blow in a field breathalyzer, which leads to arrest and an evidentiary breathalyzer at the station, ringing up a 0.14% and a ticket to the big show.
At trial, Defendant moved to suppress all evidence accruing after Trooper told him to return to the car to get his identification. The trial court agreed with Defendant and applied a “how would I feel if I was blocked in my driveway by a State Trooper who has demanded my license?” analysis to determine that a detention had occurred without proper Miranda warning. This led the trial court to suppress all evidence of the DUI and dismiss the charges.
On appeal, the SCOV refused to see it through Defendant’s eyes. Instead, SCOV marches through the standard DUI stop two-step. This analysis is similar to a game my children play. There are two columns of words, and you must draw a line connecting those that match one with the other. Instead of matching words, SCOV simply drew a line from each of Trooper’s actions to each piece of evidence that supported each escalation in the process.
Thus, the erratic weaving invited the stop. That and the emanating smell of alcohol also supported the request for identification. No seizure or arrest during the process because the officer was within his authority to ask, and then the answers supported more questions, and those answers . . . hmm, on second thought, maybe this analysis is more like Spirograph than the match game.
What do we learn from this? The only novel fact here is that Defendant was out of his car when approached by Trooper. Trooper asked him to go back to his car. For Justice Dooley in his concurrence, this is a distinction without a difference. The fact that Defendant already was out of his car and Trooper asked him to go back doth not a seizure make. No, it is just an investigation—albeit the kind of investigation in which Defendant was obliged to assist and ultimately implicate himself.
So back to trial for Defendant. But that’s only a request.