To PBT or not to PBT? That is the Question

State v. Kinney, 2011 VT 74

By Andrew Delaney

A jury convicted Mr. Kinney of his third “drivin’-while-imbibin’” charge as well as attempting to elude a police officer.  He appealed, arguing: (1) that the trial court erred in admitting his refusal to take a preliminary breath test (PBT); (2) that during closing argument, the prosecutor interjected his personal opinion and commented on Mr. Kinney’s failure to testify; and (3) that the evidence was insufficient to convict.  The SCOV affirmed.

So, here’s the story.  A Bennington police officer is patrolling by car at ten o’clock one fine evening, when he spies a person he believes is Mr. Kinney driving an ATV on the street in Bennington.  The officer believes it’s Mr. Kinney because he has had some interaction with Mr. Kinney in the past and the officer knows Mr. Kinney owns that particular model of ATV.

A chase ensues.  There is a video of the action, and though the video quality isn’t the greatest, the officer testifies that he got a pretty good look at Mr. Kinney.  The ATV goes over a bank, gets abandoned, and by now, more officers are involved and the chase is on foot.  Eventually, one of the officers catches up with Mr. Kinney and a companion in the woods.  Mr. Kinney seems intoxicated, claims he was in the woods for a bonfire, and claims that a third person, named Jason Webb, was driving the ATV.  We call this the Bart Simpson defense.  Mr. Kinney’s clothes generally matched those of the person the officer observed driving the ATV and the officers found the key in his pocket.  The officers did not find a bonfire; nor did they find another person in the woods.    

Mr. Kinney refused an at-the-scene PBT.  His later-administered Datamaster test, however, showed levels of thrice the legal limit.  A jury convicted Mr. Kinney of DWI³ and attempting to elude.  He appealed.    

His first argument was that the trial court erred in admitting an officer’s testimony regarding his refusal to take a PBT.  The SCOV holds that the error, if any, was harmless in light of the strength of the State’s case without the evidence and the limited effect of the objected-to evidence.  The SCOV notes that one officer identified Mr. Kinney and his ATV; that Mr. Kinney’s clothing matched the officer’s description; and that Mr. Kinney had the ATV key in his pocket.  The SCOV also notes that the testimony about the PBT refusal was a brief question and answer during extensive testimony from an officer—and that the subject was not raised again.  Accordingly, the SCOV concludes that the officer’s testimony in regard to the PBT refusal was harmless.  Strike one.      

Mr. Kinney’s second claim of error was that during closing argument, the prosecutor interjected his personal opinion and commented on Mr. Kinney’s failure to testify.  During closing, the prosecutor stated that Mr. Kinney “lied” to the officers and claimed that Mr. Kinney had failed to offer any evidence or explanation as to “‘this mystery third person.’”  Because Mr. Kinney didn’t object below, we’re in plain-error territory, or, more-colorfully stated: up a creek feed by a septic system without a paddle.

The SCOV concludes that the evidence of guilt was overwhelming and that the prosecutor’s remarks simply noted certain inconsistencies and omissions in Mr. Kinney’s explanation.  Accordingly, there was no plain error committed.  Strike two. 

Strike three is implied.  Mr. Kinney’s final argument—that the evidence was insufficient to convict—is addressed in the other parts of the Court’s opinion.  One can safely assume from the tone of the opinion that the SCOV finds no merit in the contention that the evidence was insufficient.  The SCOV affirms.

Oh, but we’re not done yet.  Justice Johnson writes a lengthy concurrence, essentially arguing that the very-limited admissibility of PBT results (restricting use solely to probable-cause determination) provides a reverse-inference basis for excluding a PBT refusal.  Although Justice Johnson’s concurrence notes that the error was harmless in this case, she writes to emphasize that the trial court committed error in admitting the PBT refusal.  Justice Skoglund joined in Justice Johnson’s concurrence.

Chief Justice Reiber, in response to Justice Johnson’s concurrence, writes another lengthy concurrence that argues the opposite.  First, the Chief Justice notes that there was no “result” introduced here, just a refusal.  The CJ also takes issue with the other concurrence’s contention that the admission of a refusal eviscerates the legislative purpose of the DWI statute.   The Chief Justice’s concurrence focuses on the “consciousness-of-guilt” aspect of a PBT refusal, essentially arguing that a refusal is an entirely different thing than a result, and that the other concurrence’s reverse-inference reasoning cannot hold water.  Justice Burgess joined in the Chief Justice’s concurrence.

Both concurrences are worth reading if you have some time.  I’ve reduced them to two paragraphs here for convenience, and necessarily, cannot give a full flavor of the nuanced arguments and interplay. 

Five Justices, three opinions, and not one bit of good news for the Defendant.