Today’s criminal
defendant is a winner in the creative-arguments-to-suppress-evidence
arena. Defendant was driving drunk on
Interstate 289 in Essex at approximately 8 in the morning when he flipped his
car over. The officer who was called to
the scene arrested defendant and accompanied him in the ambulance to the
hospital.
When it
comes to testing a drunk driver’s blood-alcohol level (BAC), time is of the
essence. The Legislature, in its
arbitrary wisdom, has determined that a BAC of .10 or higher “within two hours”
of operating a vehicle qualifies one for DUI charges. At approximately 9:30 AM, officer realized
that he had a half hour to get defendant’s BAC.
Defendant had not yet been x-rayed or seen by medical personnel, and
officer was told by hospital staff at 9:45 AM that they did not know how long
it would take before he was discharged.
Nor was a breathalyzer available at the hospital.
Officer
promptly processed defendant for driving under the influence of alcohol, and
asked defendant to provide a blood sample.
Defendant refused, preferring to give a breath sample. Unable to take defendant to a facility with a
breathalyzer until he was discharged, officer transported defendant to two
separate detox facilities across town, the first having refused to take
him. Defendant never provided a blood or
breath sample, and officer did not request one after they left the
hospital. Several weeks later, defendant
was arraigned on charges of “DUI #3 or Subsequent Test Refusal.”
In
support of its case, the State submitted evidence of Defendant’s refusal to
provide a blood sample. Defendant did
what all good criminal defendants do: he moved to suppress. His chief argument was that officer, in
traipsing across town with defendant to the next medical facility, passed
several police stations with “reasonably available” breathalyzers, but failed
to take defendant to one to take the test.
Officer argued in response that he could not reasonably test defendant’s
BAC when hospital staff did not know how long it would take to treat and
discharge defendant. Time was tight, and
officer had an uncertain timeline.
The
trial court held a hearing and denied the motion to suppress, finding it was
reasonable for officer to rely on the hospital personnel’s comments regarding
when defendant could be released, and that under the circumstances a
breathalyzer was not reasonably available.
Defendant entered a conditional plea, reserved the right to appeal the
denial of his suppression motion, and appealed to the SCOV.
On
appeal, the SCOV considers the same arguments raised below with an eye for
whether the trial court was clearly erroneous in its conclusion. Vermont favors breath tests over blood tests
to determine a DUI suspect’s BAC, and Vermont law dictates that if you drive a
vehicle on Vermont highways, you have consented to giving a breath test. If a breathalyzer isn’t “reasonably
available,” you are deemed to have consented to giving a blood test, and
refusal to do that is refusal to take a BAC test, the crime with which defendant
was charged.
The
SCOV’s analysis turns on the reasonable availability of breathalyzers and the
“evanescent nature” of alcohol in one’s breath.
The SCOV notes that, when the officer began processing defendant for a
DUI, the two-hour window in which he had to test his BAC was nearly
closed. Defendant refused a blood test, the
officer had no idea when defendant would be released from the hospital, and he
could not transport defendant to a breathalyzer without his release.
Nothing
in the statute requires an officer to make herculean efforts to transport a
suspect to a breathalyzer machine when he declines a blood test, regardless of
how close they came to a police station on their way to the detox facilities. Defendant’s argument is that officer should
have interrupted defendant’s medical treatment to make him blow into a tube at
a police station. The SCOV finds this
argument preposterous. Officer
reasonably relied on the statements of medical personnel in concluding the
timeline was uncertain, and did not behave unreasonably in passing by
breathalyzers on the way to the next facility.
Sadly
for defendant, his clever attempt to suppress evidence fails. Of course there is always a next time, but
with the danger demonstrated by this escapade, Defendant should be aware that there
is a good chance that next his blood sample may be involuntary.
Comments
Post a Comment