State v. Bresland, 2012 VT 75 (mem.).
Let us, like the SCOV in this case, be brief.
Defendant was charged with three crimes following a traffic stop: DUI (third offense), refusal to take a breath test, and driving with a suspended license.
The arresting officer submitted a sworn statement providing testimony and basis for probable cause for each element of the three crimes. At Defendant’s initial arraignment, though, the trial court found that the State lacked probable cause for the second charge, refusal to take a breathalyzer. The trial court gave no explanation for its ruling but dismissed the charge.
On appeal, the State argued that probable cause was there and that the trial court must have erred in assuming that Defendant’s prior DUIs could not be the basis for both her third DUI charge and the refusal to take a breathalyzer charge (after your first DUI, it becomes a separate crime to refuse a breath test where the officer has reason to believe you have been drinking). The Defendant suggested that the SCOV not look too closely and just affirm.
The SCOV does look closer, though, and finds probable cause abounds. For this reason alone, the SCOV reverses the trial court and remands the case for prosecution.
In doing so, the SCOV further rules that if there is lack of probable cause, Defendant should make a motion to dismiss for such a lack. Then the State will have notice and can defend the charge at a probable cause hearing. The problem here is that Defendant never raised the issue, but the trial court did on its own at the arraignment without giving the State notice and opportunity to respond.
No harm as the case goes back to the trial court, and the Defendant will, no doubt, be wracking her brains to see if she can revive a dismissal that turned out to be too good to be true.