Monday, September 7, 2015

Breath-Test Blowback

State v. Perley, 2015 VT 102

By Andrew Delaney

To blow or not to blow? For most DUI defendants that is the question. Mr. Perley decided not to.

Mr. Perley was handed a bouquet of charges stemming from his involvement in a car accident. Get it? That’s right—I’m a dork. Anyway, there was the car accident; Mr. Perley took off. Two hours or so later, he showed up at the courthouse in his father’s car. He showed signs of impairment. He was arrested at the courthouse. During processing, he refused a breath test. He was charged with leaving the scene of an accident, violating conditions of release, and operating with a suspended license; he pled no contest to those.

He was also charged with criminal refusal and DUI#3. On those two, he filed a motion to dismiss. The trial court reasoned that the DUI#3 wasn’t going to fly and tossed it, but the criminal refusal would stick. Mr. Perley was in an accident, he fled the scene, showed signs of intoxication when he was found, and therefore the police officer had a reasonable basis to request an evidentiary test. Basically, the deal is that if you have a prior DUI, and you refuse a law-enforcement officer’s reasonable request for an evidentiary test, you may be found guilty of criminal refusal.

That’s what happened. Mr. Perley had a jury trial. A number of witnesses testified. The arresting officer testified that he heard about the accident, and when he finally found Mr. Perley, there was a distinct boozy odor and Mr. Perley appeared to be intoxicated.

While the officer was processing Mr. Perley, the officer asked Mr. Perley whether he wanted to speak to a lawyer. Mr. Perley asked if his lawyer was there. The officer said no, and asked Mr. Perley if he wanted to chat with the public defender. Mr. Perley declined and the officer printed a refusal ticket. There was a conversation about how the officer knew Mr. Perley’s lawyer wasn’t there. The officer explained that lawyers didn’t generally chill at the barracks, and that if the lawyer had shown up for some reason, the receptionist would’ve said something.

Mr. Perley didn’t put on any evidence. At the close of the evidence, he moved for acquittal on the basis “that there was no direct evidence to show that he had consumed alcohol before the car accident.” He noted that he wasn’t found until almost two hours after the accident, and pointed to the officer’s testimony that he hadn’t factored in the leaving-the-scene bit into his requesting-an-evidentiary-test decision.

The trial court denied the motion, reasoning that while there was the possibility that Mr. Perley had consumed alcohol after the accident, the State needn’t exclude that possibility in determining whether probable cause for arrest existed. The possibility of another explanation, therefore, didn’t negate the reasonableness of the request for an evidentiary test. The jury came back with a guilty verdict.

Mr. Perley appeals. First, he argues that there was no evidence as to when he was drinking or that alcohol consumption impaired his driving. Because of the time lapse between accident and arrest, no reasonable juror could conclude that the officer had reasonable grounds to request a breath test. An argument that the State failed to prove the officer’s request was “reasonable” and an argument that the officer “interfered” with his right to counsel get shuffled into raised-for-the-first-time-on-appeal-and-not-enough-for-plain-error land, and the SCOV doesn’t get too deep into them.

At the courthouse—where Mr. Perley was arrested—he attempted to walk away and talk with his attorney. At that point, the officer arrested him. When Mr. Perley asked whether his lawyer was at the barracks, the officer said, “No.” But Mr. Perley never specifically requested that the officer contact his lawyer. When the officer asked if Mr. Perley wanted to speak with the public defender, he declined. Thus, the SCOV isn’t going to find plain error here.

This is a challenge to denial of a motion for acquittal, so the evidence gets viewed in the light most favorable to the State and any modifying evidence gets excluded. The SCOV notes that “judgment of acquittal is proper only if the State has failed to put forth any evidence to substantiate a jury verdict.” According to the SCOV, that’s not the case here.

The SCOV agrees with Mr. Perley that the phrase “reasonable grounds” in the criminal-refusal statute is essentially the same thing as probable cause. Probable cause means that it’s reasonable to believe that a crime has been committed and that the defendant committed the crime. It’s not a high threshold—if you cut through the fancy language, basically it means that you don’t need to be a lawyer to figure it out. It’s more of a commonsense determination.

The SCOV applies the totality-of-the-circumstances test to the probable-cause determination. Because it’s a probability test, it doesn’t need to meet the more-likely-than-not bar, but it also can’t just be crazy make-‘em-ups. As the SCOV acknowledges, “innocent behavior frequently will provide the basis for a showing of probable cause.” In other words, probable cause is way less than the beyond-a-reasonable-doubt standard.

The SCOV looks at the jury instructions and doesn’t find a problem there. Turning to the factual basis, the SCOV observes that Mr. Perley was involved in an accident on a clear day. There was a two-hourish search and then Mr. Perley’s father brought him to the courthouse. He appeared to be a bit tipsy, and the officer didn’t observe any alcoholic beverage containers in Mr. Perley’s father’s car. The SCOV also notes the permissive statutory inference that someone under the influence if BAC is .10 or higher within two hours of operation. The SCOV opines: “It was not unreasonable under these circumstances for the officer to conclude that there was a reasonable probability that defendant had been intoxicated at the time of the accident.”

The SCOV agrees with the trial court that “the officer did not have to rule out the possibility of post-operation drinking in order to have probable cause.” We’re not dealing with a DUI charge here—in fact that charge was dismissed. In order to be convicted for criminal refusal, the State needs only prove that the officer had reasonable grounds to request the test, not that Mr. Perley was in fact driving while intoxicated.

And so the SCOV concludes, “It was for the jury to weigh the evidence presented, and the jury in this case had sufficient evidence upon which to find defendant guilty.”

In this case, it appears that had Mr. Perley taken the test, and tested above .10, he probably could’ve been convicted of DUI#3 (given the permissive inference in the statute). So what was the right criminal-defense-savvy choice here? I'd go with taking the refusal in this case, and I'd be happy to explain my reasoning, but I'd like to hear your thoughts first. Vote in the comments, friends.

1 comment:

  1. That law leaves way too much wiggle room in my opinion. I have to agree that after the accident, perhaps out of fear, he grabbed a bottle or two that had nothing to do with what happened while he was driving the vehicle. I think in this case the entire issue should be tossed because it is hard to prove either way.

    Eliseo Weinstein @ JR's Bail Bonds