Scent of Suspicion

By Nicole Killoran

State v. Therrien, 2011 VT 120

After imbibing “one” beer after a hard day’s work, the Defendant in today’s case went out for a late night drive in a vehicle with a broken taillight.  As so often happens, a police officer found this reason enough to pull Defendant over to investigate.  When Defendant rolled down his window, the officer noticed Defendant’s “watery eyes,” a strong odor of alcohol, and an apparently empty beer bottle behind the passenger seat.  Defendant admitted that he had consumed a single beer after leaving work that day.

Without further ado, and without asking for permission, the officer placed a preliminary breath test machine in front of Defendant and told him to take the test.  The test indicated Defendant’s blood alcohol level was above the limit.  Defendant failed the field sobriety tests the officer then administered, and later blew a .150 at the station after being arrested.

Defendant faced civil suspension of his driver’s license as well as a DUI charge.  He filed a motion to suppress, claiming that he did not voluntarily consent to the preliminary breath test, that he did not feel he had a choice in taking the test, and that all information obtained after the test should be suppressed.  The officer insisted that he did not force defendant to take the breath test, though he did admit that an individual in Defendant’s shoes might have felt compelled to blow. 

The trial court denied Defendant’s motion and entered judgment in the civil suspension case.  The trial court believed the officer had a reasonable basis for administering the preliminary breath test after observing Defendant’s watery eyes and the empty beer container, smelling his breath, and hearing Defendant admit to drinking.  Defendant entered a conditional guilty plea in his DUI charge, and appealed the motion to suppress.

Defendant’s primary argument on appeal was that the State improperly administered the preliminary breath test.  Because such a test is a search, before administering it an officer must have a reasonable suspicion of DUI based on articulable facts, and obtain voluntary consent.  Defendant claimed the State did not demonstrate that his consent was voluntary.

The SCOV notes that voluntary consent to a search fulfills the reasonableness requirement of the Fourth Amendment, and the Vermont State Constitution equivalent, Article 11.  However, the same requirement may be fulfilled by demonstrating reasonable suspicion. Because the State demonstrated that the officer had independent reason to suspect Defendant was driving under the influence, the SCOV concludes that the trial court was not erroneous in denying Defendant’s motion to suppress.  The End.

But wait!  There’s more.  The Vermont legislature saw fit to codify the preliminary breath test procedure.  If an officer has reason to believe a person has committed DUI, the statute permits the officer to ask that the person submit to a preliminary breath test.  Although law enforcement is not obligated to inform suspects of their right to refuse to submit to the test, they must “request” that suspects submit, and may not force the test.  The SCOV concludes that, because the arresting officer did not ask Defendant to submit, the preliminary breath test was improperly obtained and the trial court should not have considered its results as probable cause to arrest Defendant for driving under the influence.

The End?

No.  The SCOV says that this error is harmless.  The officer had an independent reason to suspect that Defendant was driving under the influence: Defendant’s spectacular failure on the field sobriety tests.  Thus, the officer’s probable cause and the subsequent arrest did not depend on the results of the preliminary breath test or affect Defendant’s decision to submit to the field sobriety tests.  The SCOV concludes that suppression in this case would be inappropriate, and affirms the lower court’s decision.