Gilman v. Commissioner of Motor Vehicles

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-019


Douglas Gilman                               Supreme Court

                                             On Appeal From
     v.                                      Caledonia Superior Court

Commissioner of Motor Vehicles               October Term, 1989
and Vermont District Court,
Unit No. 3, Caledonia Circuit


Matthew I. Katz, J.

Vincent Illuzzi and Michael R. Loignon of Vincent Illuzzi Associates,
  Orleans, for plaintiff-appellant

Dale O. Gray, Caledonia County State's Attorney, St. Johnsbury, and
  Jo-Ann Gross, Law Clerk, Department of State's Attorneys, Montpelier,
  for defendant-appellee


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     ALLEN, C.J.   The record contains ample support for the conclusion
that defendant refused to submit to a breath test within the meaning of 23
V.S.A. { 1202.  To effect a refusal under 23 V.S.A. { 1202(c), a person need
only conduct himself in a manner which would lead a reasonable person in the
trooper's position to believe that the person understood he was requested to
submit to a breath test and manifested an unwillingness to do so.  Stockwell
v. District Court, Unit No. 6, 143 Vt. 45, 50, 460 A.2d 466, 469 (1983).  A
person need not show refusal by an express, affirmative statement.  Id. at
50, 460 A.2d  at 468.  In the absence thereof, an officer may infer a refusal
from the totality of the circumstances.  Id.
     The trooper informed defendant at the outset that he believed defendant
had been operating a vehicle under the influence of intoxicating liquor and
that he was required to ask defendant to give an evidentiary sample of his
breath.  The trooper then informed defendant of his rights under { 1202,
including his right to consult an attorney at state expense.  It is
unnecessary to reach the issue of whether the trooper afforded defendant his
right to counsel because, while defendant initially expressed a desire to
contact a public defender, he later indicated a preference for Mr. Illuzzi.
Defendant explained that he had "always done business" with him, could
arrange to make payments for his services, and had no intention of calling
any lawyer other than Mr. Illuzzi.  The trial court found that after the
defendant attempted to call Mr. Illuzzi he refused to make any calls to
other attorneys, stating that "he had made his call, that he wanted Attorney
Illuzzi and no others."  This finding is amply supported by the testimony of
the officer that defendant "said he didn't want to make any more calls.  He
didn't want to call any other attorney.  He wanted Mr. Illuzzi."
     The trooper knew that the lawyer defendant had sought to consult was
not available and that contact within the statutory time period would not
take place because defendant had left a message instructing the lawyer to
contact him at his home.  Defendant's stance that he would take the test
only after consulting a lawyer whom he knew to be unavailable was tantamount
to a refusal.  The superior court's denial of the petition for extraordinary
relief does not constitute an abuse of discretion.
     Affirmed.
                                   FOR THE COURT:


                                   ___________________________________
                                   Chief Justice





________________________________________________________________________________

                                  DISSENT


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 89-019


 Douglas Gilman                               Supreme Court

                                              On Appeal From
      v.                                      Caledonia Superior Court

 Commissioner of Motor Vehicles               October Term, 1989
 and Vermont District Court,
 Unit No. 3, Caledonia Circuit


 Matthew I. Katz, J.

 Vincent Illuzzi and Michael R. Loignon of Vincent Illuzzi Associates,
   Orleans, for plaintiff-appellant

 Dale O. Gray, Caledonia County State's Attorney, St. Johnsbury, and
   Jo-Ann Gross, Law Clerk, Department of State's Attorneys, Montpelier,
   for defendant-appellee


 PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


      DOOLEY, J., dissenting.   In a world in which a large percentage of
 cases involving motor vehicle operation and alcohol are appealed, and many
 of these appeals lack a meritorious issue, it is easy to miss the wheat in
 what seems like an endless sea of chaff.  In its brief affirmance, the
 majority has categorized this case as chaff.  It does so, however, by
 characterizing the facts in a way that I do not believe is supported by the
 record and thereby omits any consideration of the main issue raised by the
 appellant and decided by the superior court.  The central issue is difficult
 and, on balance, points to a reversal.  Accordingly, I dissent.
      The undisputed facts are that petitioner, Douglas Gilman, was stopped
 while driving in St. Johnsbury and was brought to the state police barracks
 for processing for DWI.  Before asking petitioner to take a breath test, the
 arresting officer read him his rights from a processing form.  When asked
 "Do you want a lawyer?," petitioner answered, "Yes."  At that point, the
 officer went to a call list set up by the public defender's office for night
 DWI calls and called each of the seven lawyers on the list.  None were home.
 The officer then handed the telephone book to petitioner and asked him if he
 wanted to call any lawyer from the book.  Petitioner called lawyer Vince
 Illuzzi, who also didn't answer.  Petitioner's testimony, not disputed by
 the officer, was that he could not afford a private lawyer but had been
 represented by attorney Illuzzi in the past and felt he could work out a
 payment arrangement.  Petitioner then refused to call any other lawyers from
 the telephone book, and the officer asked him to take the test.  Petitioner
 said he would not do so without a lawyer.  It is this statement the majority
 finds to be a refusal.
      The majority finds that we do not have to reach the question of
 whether there was a violation of petitioner's right to appointed counsel
 because "while defendant initially expressed a desire to contact a public
 defender," he abandoned that request in favor of an insistence on reaching
 lawyer Illuzzi.  That conclusion is not supported by the record, and neither
 of the trial courts that have considered this case drew that conclusion.
 The undisputed facts are that the officer contacted all the public defender
 names, and on reaching no one, handed petitioner the telephone book to call
 private lawyers who clearly would have to be paid for their services.  He
 did not give defendant the names of the lawyers on the public defender list.
 From the telephone book, petitioner was able to pursue one name because he
 thought he could work out a payment arrangement with that lawyer.
 Petitioner tried to contact lawyer Illuzzi only after he was told that no
 public defender was available.  He never stated that he wanted lawyer
 Illuzzi in preference to a public defender, and the trial court did not find
 so, despite the quotes the majority takes out of context.  He said only that
 he would pick no further names from the telephone book because he could not
 afford a lawyer.
      Fact-finding is for the trial court, not this Court.  The finding of
 facts, not supported by the evidence, is, of course, not proper for any
 court.  I believe we must reach the issue, raised by petitioner and decided
 by the superior court, of the effect of the failure to provide counsel at
 public expense on the validity of a refusal to take a breath test.  At least
 in this context, I find this to be a close question.  Since this is a
 dissent and the issue may arise another day, I will only briefly outline my
 views.
      While we have never addressed it directly, I think our precedents
 require us to hold that a failure to afford appointed counsel will result in
 a suppression of evidence of refusal or of a test result in a criminal
 case.  In State v. Duff, 136 Vt. 537, 540, 394 A.2d 1145, 1146-47 (1978)
 this Court held that the failure of the arresting officer to inform the
 defendant of his right to consult with counsel prior to deciding whether to
 take a breath test results in the suppression of the test results in a
 criminal proceeding.  In State v. Gracey, 140 Vt. 199, 201-02, 436 A.2d 741, 743 (1981), we extended Duff to require that the officer advise the
 defendant that if he is needy, he has a right to counsel at public expense.
 Again, the consequences were that the result of the breath test was
 suppressed.  In both opinions, the Court indicated that it was implementing
 the right to counsel statute.  See 13 V.S.A. { 5234.  Since the right to
 notice of the availability of counsel, 13 V.S.A. { 5234(a), and the right to
 appointed counsel, 13 V.S.A. { 5233(a), are essentially coextensive, a
 failure to afford counsel must have the same consequence as a failure to
 notify of the availability of counsel.  In any event, it would be illogical
 to require suppression where the officer fails to notify of a right to
 assigned counsel, but recognize no consequence for a failure to afford
 counsel.
      The more difficult question is whether a similar consequence should
 occur in a refusal proceeding, which is civil and not criminal, and will
 result only in a license suspension.  We have, however, enforced the right
 to counsel in refusal proceedings and vacated a refusal determination as a
 consequence.  In Pfeil v. Rutland District Court, 147 Vt. 305, 309-10, 515 A.2d 1052, 1055-56 (1986), we held that the lack of a meaningful opportunity
 to consult with counsel means that the court can not find a voluntary
 refusal.  Pfeil relies on criminal precedents but concludes that the
 precedents must be equally applicable to refusal proceedings:
         It would be an anomalous result, however, to allow the
         Commissioner to suspend a person's license to operate a
         motor vehicle on the highways of this state for six
         months where coercive or restrictive police practices
         affect the person's decision to refuse testing.

 Id. at 309, 515 A.2d  at 1055.  We may on reflection narrow the holding of
 Pfeil to particular kinds of police practices, but at this point my initial
 conclusion is that the failure here must have the same consequences as the
 failure in Pfeil.
      I would remand for a determination of whether petitioner was, in fact,
 a needy person as he claims.  If he was needy, and was not afforded counsel
 at public expense before deciding whether to take the breath test, I do not
 believe the refusal determination can stand.  Accordingly, I dissent.  I am
 authorized to state that Justice Morse joins in this dissent.




                                         Associate Justice