Wednesday, February 27, 2013

A “Bad Road” To Go Down

By David Rangaviz

State v. Hawkins, 2013 VT 5

Sometimes when you read a decision, you can feel the court reaching for the result.

Most often, this feeling manifests itself in one of two incongruities: (1) making bad law from hard facts (because the unique facts seemingly demand an outcome that the law is somehow ill-equipped to address); or (2) writing good law, in a case to which this new legal rule does not even appear to apply.

Today’s decision is the worst of both worlds—bad law applied to the wrong defendant.  As covered by the Burlington Free Press, in today’s decision the SCOV writes a “bad roads defense” into Vermont’s criminal law concerning motor vehicle operation.  From now on, it seems that a criminal charge of negligent motor vehicle operation cannot be supported solely by a driver’s decision to drive in bad road conditions.  As a lifelong Vermonter, I tend to think this rule of law, stated in the abstract, makes good sense.  But in practice, it seems nearly impossible to apply.

The “reach” also lies in the application of this new legal doctrine to the facts of the case at hand.  This Defendant did far more than decide to drive in treacherous conditions.

The facts were as follows.

In October 2009, a deputy sheriff clocked Defendant driving 65 miles per hour in a 50 MPH zone in Essex County.  The deputy turned on his blue lights, but not his siren, and began his pursuit.  Before the deputy could reach him, Defendant turned onto a private driveway.  When the deputy followed, Defendant stopped his car.  After this brief pause, Defendant resumed driving, and proceeded to cross a washed-out portion of the driveway at a speed of 25 MPH, bottoming out his car.

Having seen the condition of the driveway, the deputy did not follow, opting instead to exit his cruiser.  Defendant drove another forty yards, stopping in front of a gate that blocked any further travel.  Defendant got out of his car and began to walk with a “shuffling” gait.

Concerned for his safety, the deputy drew his gun and ordered Defendant to hit his knees and place his hands behind his head.  While taking Defendant to the police station, the deputy noticed that Defendant smelled of alcohol, had bloodshot eyes, and slurred his words. 

At the station, the deputy processed Defendant for driving under the influence of alcohol.  Before issuing Miranda warnings, the deputy asked Defendant a number of questions about his alcohol consumption.  Defendant then refused a breathalyzer test.

Defendant was charged with criminal refusal of a breathalyzer.  While his case was pending, he moved to suppress all evidence against him obtained after the deputy arrested him, arguing that the arrest was unlawful and thus all evidence obtained as a result—both his statements as well as physical evidence—was tainted as the “fruit” of that illegality. 

The case boiled down to one issue: Did the deputy have probable cause to arrest Defendant when he did?  If so, the arrest would be lawful, and thus the evidence obtained after it would be admissible.  If not, the unsupported arrest would be illegal and the resulting evidence inadmissible.

In a unanimous decision, the SCOV concludes that there was not probable cause to arrest Defendant for negligent operation of a motor vehicle.  According to SCOV, driving over a washed-out portion of a driveway at 25 MPH cannot, as a matter of law, constitute negligent operation. 

Armed with both “common experience” and statistical reality (over half of all roads in Vermont are unpaved), the Court holds that the decision to drive over a washout could not be negligent because such road conditions are “commonplace throughout Vermont.”  In a passage laden with alliterative rhetorical flourishes, SCOV describes the roads in the Green Mountain State:

These roads are often primitive and rough. Over the seasons, they are topped with dirt, snow, ice, and mud. They are studded with rocks and frost heaves, pitted with potholes, wrinkled with washboards, and, worn by weather and trucks, left uneven and, in places, washed-out. To deliberately travel over such roads is a reality of Vermont life, not a rash decision.

A contrary decision “would mean that every time a public highway in this condition is so used a crime could be charged, and any driver operating on a bad road in March would risk prosecution.”  According to SCOV, if all Vermonters are negligent, none of us are negligent.

Having reached its conclusion that no probable cause exists to arrest Defendant, SCOV remands to the trial court to consider whether the physical evidence obtained thereafter was acquired in exploitation of the unlawful arrest.  If so, it would have to be suppressed.

Stated in the abstract, the rule of law established in this case—a “bad roads” defense—seems fairly sound.  Given the condition of many Vermont roads, Vermonters should not be guilty of negligent operation solely because they drive when road conditions are compromised.  Of course, how they drive in these bad conditions could be negligent (such as driving too fast down an icy street), but the mere decision itself to drive on the road conditions should not support probable cause.

But driving does not take place in the abstract.

In practice, the operation of this “bad roads” defense is difficult to understand.  By its decision, SCOV is asking police officers and trial judges to decide whether an individual was driving negligently without regard to the condition of the roadway he or she was driving on, a seemingly impossible task.  Whether driving is negligent can only be considered in the full context of the roadway itself—its speed limit, its surroundings, its twists and turns, and (of course) its physical condition.  In other words, the road dictates the standard for negligence.  As such, in any assessment of negligence the decision to drive on a road and the manner of driving are inextricably linked.  Driving considered negligent on an icy highway may be assiduous for a summer backcountry drive.

In past cases, the SCOV has recognized that each negligent operation case is so different that per se rules are usually inappropriate.  The question of negligence has, for the most part, been left to officer discretion and treated like Justice Potter Stewart’s famous description of pornography—you know it when you see it.  After today’s ruling, this context-specific inquiry is now more of a one-size-fits-all rule.

And this practical concern is exacerbated by the cryptic nature of SCOV’s opinion.  There is absolutely no discussion of the nature of this bad roads defense, how far it extends, or how it will apply going forward.  Vermont police officers and trial judges have been left with little guidance for future cases.

Setting these concerns aside, one must ask a more fundamental question: Should this rule even apply to Defendant’s case?  Let’s recap: He was clocked driving 15 MPH over the speed limit; turned onto a private driveway after the deputy began following him; then drove over the washout; continued driving up to a blocked gate in the driveway; and got out of his car and “shuffled” toward the deputy.  All the while, he continued driving and ignored the police car following him with its blue lights flashing.  Only then did the deputy initiate an arrest.

Defendant’s decision to drive over the washout was not the sole basis of the deputy’s decision to arrest him.

But SCOV does not take up the rest of Defendant’s conduct in its analysis.  For example, SCOV did not even mention Defendant’s failure to pull over for the officer, or the fact that this failure alone is a crime.  According to 23 V.S.A. § 1133, it is a crime punishable by up to one year in prison for a driver to “fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer.”  Now technically, Defendant did not violate this statute because the deputy never turned his siren on (as the statute requires), but it surely contributes to the probable cause calculus that Defendant, who had been speeding, ignored an officer, who had pursued him on both the public highway and private driveway.

Of course, the deputy likely thought that Defendant was trying to elude him, seeing as how he quickly turned off of the public highway after the initiation of the pursuit, then stopped to see if the officer would follow, persevered in spite of a washout, and only stopped when confronted with an immovable gate.  The issue of probable cause should not turn on the technicality of whether the deputy flipped on his siren.

It bears mention that, at this stage, the question is not whether Defendant acted negligently.  That is for a jury to decide.  Instead, the question is whether the circumstances known to the deputy satisfied the test for probable cause, which calls for a “fair probability” that a crime has occurred.  Probable cause does not lend itself to inflexible, mechanistic rules.  It is a fluid concept, calling for quick assessments by officers in the field, such as the deputy who had to decide, in a matter of moments, whether to arrest Defendant.

Given the full facts of this case, it is hard to understand why the arrest was not supported by probable cause.

In adopting its new rule, SCOV may have seen an opportunity to try to protect Vermont drivers from overzealous prosecutors.  Today’s decision may have that result.  But, unless there is some rash of negligent operation prosecutions that I’m not aware of, this ruling may be a solution in search of a problem.

And, at least as applied to today’s Defendant, the solution is the problem.  If SCOV really felt the need to help this Defendant, it probably could have found another way (the failure to provide Miranda warnings comes to mind).

As it stands, the SCOV’s “reach”, while eloquently written, bottoms out in the end.

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