Sunday, April 2, 2017

Nope, nope, nope

State v. Richard, 2016 VT 75

By Andrew Delaney

Mr. Richard wasn’t interested in being pulled over. He ran a stop sign, so a trooper started following him. Mr. Richard was allegedly driving erratically. When the trooper turned on the blue lights, Mr. Richard kept going until he reached his driveway. He got out and started walking up the ramp to his house. The trooper stopped him.

The trooper testified that Mr. Richard smelled like booze and seemed out of it. Mr. Richard repeatedly said “don’t do this,” and when the trooper said, “C’mon let’s go,” Mr. Richard said, “Nope, nope, nope.” Now it’s been a little while since my drinking days and I don’t want to sound like I’m on the trooper’s side here, but “nope, nope, nope” is—in my, uh, training and experience—classic Drunkanese for “no, thank you, sir.”

The trooper thought so too, and cuffed Mr. Richard and gave him a ride to the police station. To be fair, Mr. Richard was already home, so I can understand why from his perspective this was a nope-nope-nope situation. There was an exchange after the breath test at the station about a trip to the hospital for an independent blood test but Mr. Richard didn’t have the supposedly required seventy-five bucks. So Mr. Richard said, “Well, I don't have seventy-five bucks, so.” My wife hates when I talk like that. I can always expect a, “So, what?” The trooper apparently did not have my wife’s pet peeve so that was the end of the conversation.

A screener came by. Mr. Richard didn’t want to talk to her. He wanted his wife to come get him. The screener was like, “Hmm. He seems drunk. Perhaps on drugs. And his wife ain’t here. Throw ‘im in the pokey!” Of course that’s not the real dialogue, but as my first-grade teacher so kindly put it, I have “an active imagination.”

After getting slapped with a DUI charge, Mr. Richard moved to suppress, arguing that the arrest was without probable cause. He also moved to suppress the breath test because the trooper deterred him from getting an independent test. After two days of testimony, he added a throwing-me-in-the-pokey-prevented-me-getting-an-independent-test argument. The trial court said, “Nope, nope, nope,” and denied the motions. Mr. Richard moved to reconsider for another “nope.” So he entered a conditional plea and now appeals.

Mr. Richard’s first argument is that several important factual findings by the trial court were plumb loco. Given that the SCOV reviews findings only for clear error, you can probably guess where this argument goes. Basically, the SCOV goes through the four factual and quasi-factual issues Mr. Richard raises and finds something in the record to support each finding. We’ve all seen this show before.

Mr. Richard next argues that there wasn’t probable cause for his arrest. Basically, he says the trooper had never met him before, so the trooper didn’t have any basis to say whether Mr. Richard’s speech was slurred or just his normal way of conversin’. He also points out that there were no breath or field-sobriety tests before the arrest.

The SCOV is not convinced. The trooper had made roughly 120 career DUI arrests before his chance encounter with Mr. Richard. The SCOV rejects Mr. Richard’s all-the-people-slur-some-of-the-time-and-some-of-the-people-slur-all-the-time-but-not-all-the-people-slur-all-the-time argument. Basically, the SCOV says that slurred speech is an objective sign of intoxication. The SCOV also points out that between the slurred speech, the erratic driving, and the smell of booze, the preliminary-breath and field-sobriety tests might’ve been helpful in making a probable-cause determination, but weren’t objectively necessary.

Next, we turn to the deterred-from-an-independent-test argument. The SCOV spends a little time discussing this. It acknowledges the importance of independent testing. But that’s about as far as it goes. The trooper did tell Mr. Richard that he’d need to pay for the test and he’d probably be turned away if he didn’t have seventy-five dollars to pay up front. Mr. Richard arguably didn’t go to the hospital ‘cause he didn’t have seventy-five bucks.

The Defender General foots the bill if the accused can’t pay. And while Mr. Richard contends that the trooper’s statements deterred him from seeking an independent test, the SCOV reasons that the trooper’s statements weren’t necessarily untrue and Mr. Richard didn’t bring in anything to show that the statements were untrue. I’m not sure I agree with that formulation of how things should work, but it’s the framework the SCOV chooses.

And, as the SCOV has reasoned before, there’s nothing that requires a police officer to inform a DUI suspect that the Defender General will pick up the tab for an independent test if the suspect can’t afford it. As Robert Louis Stevenson wrote: “The cruelest lies are often told in silence.” You’re welcome. I love that line too.

Finally, the SCOV deals with the they-threw-me-in-the-pokey-to-prevent-an-independent-test argument. Importantly, Mr. Richard focuses on an alleged constitutional violation rather than on the independent test statute. Here, Mr. Richard was detained as an incapacitated person. Even the trial court wasn’t sure if that was done properly. Mr. Richard’s wife could’ve picked him up.

But here the SCOV reasons that even if there was a constitutional violation here (which it does not determine), it happened after the first breath test and so the exclusionary rule doesn’t kick out the first breath test because that had already happened. There is a light in this decision for the criminal-defense bar, however. The SCOV seems to indicate that an argument under the independent test statute might just fly in this scenario.

So the SCOV affirms the trial court.

Justice Skoglund, joined by Justice Robinson, concurs. The concurrence’s primary point is that the incapacitated-persons statute can be misused and appears to have been misused in this situation. The screener didn’t really do her job. Mr. Richard was not in danger nor did he appear to pose a danger to others. In fact, he was calm and logical in many ways—and his wife was going to come get him. This wasn’t an appropriate situation to toss Mr. Richard in the pokey for having had some drinks.

Fun fact: though I can’t access them at the moment for some reason, it looks as though the legislature has been busy with the applicable statutory provisions here. There’s even a new section titled “Incarceration for inebriation prohibited.” I wonder what that’s all about . . . 

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