State v. Garvey

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. 90-166


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      Caledonia Superior Court

Thomas Garvey                                December Term, 1990


Alan W. Cheever, J.

Robert M. Butterfield, Caledonia County Deputy State's Attorney,
  St. Johnsbury, for plaintiff-appellee

Rubin, Rona, Kidney & Myer, Barre, for defendant-appellant


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


     MORSE, J.   The sole issue in this appeal is whether a DUI suspect's
license may be suspended for refusing to submit to a blood alcohol test when
no public defender can reasonably be reached before the suspect is required
to decide whether to take the test.  The superior court ruled that
defendant's refusal, rendered without consulting an attorney, warranted the
license suspension sanction.  We disagree and reverse.
     Just after midnight on July 23, 1989, defendant was processed for DUI
at the Hardwick Police Department.  As part of the process, defendant was
advised:
         You have the right to talk with a lawyer before deciding
         whether or not to submit to a test.  If you cannot
         afford a lawyer and want one, a Public Defender will be
         contacted for you, at the State's expense.

         You have a reasonable amount of time in which to decide
         whether or not to submit to a test.  If you want to talk
         to a lawyer first, you must decide no later than 30
         minutes from the first attempt to contact a lawyer.

     Defendant told the officer he wanted to talk to a lawyer before
deciding whether to take a test to determine his blood alcohol level.  The
officer called fourteen lawyers, all of whom did not answer.  Defendant even
tried to reach a Connecticut lawyer, to no avail.  Forty-three minutes after
the officer first discussed taking the test, he made a last request that
defendant take the test.  After defendant again said he would not do so
without speaking to a lawyer first, the officer deemed that defendant had
refused.
     The trial court concluded the officer had reasonable grounds to request
the test and that defendant had refused the test.  Therefore, the sanction
provided by statute was triggered.  23 V.S.A. { 1205(a) (six-month
suspension of operator's license).
     The issue raised here was the subject of a dissent in Gilman v.
Commissioner of Motor Vehicles, ___ Vt. ___, ___, 583 A.2d 86, 87-88 (1990)
(Dooley, J., dissenting) (decided on narrower grounds).  Based in part on
the statutory analysis in that dissent, we conclude that defendant's license
may not be suspended where a refusal is premised on the state's inability to
provide him with a consultation with a lawyer before he was required to make
up his mind whether to take the test.
     The Legislature gave a motorist in defendant's position "the right to
consult an attorney prior to deciding whether or not to submit to such a
test."  23 V.S.A. { 1202(c).  The State argues that this right is circum-
scribed by a condition that the decision be made "no later than thirty
minutes from the time of the initial attempt to contact the attorney."  Id.
The State's position necessarily means that the Legislature intended that
the right to counsel evaporates when one cannot be contacted within thirty
minutes.  To the contrary, we believe the Legislature intended that in any
event legal consultation be available through the public defender law.
     We held in State v. Nicasio, 136 Vt. 162, 165-66, 385 A.2d 1096, 1098-
99 (1978), that the public defender law, 13 V.S.A. { 5234(a), requires
notification of a public defender regardless of the financial need of a
person detained "for a serious crime, under conditions in which a person
having his own counsel would be entitled to be so represented."  Similarly,
we hold that in all DUI cases -- financial considerations of the suspect
notwithstanding -- a public defender shall be notified unless waived by the
suspect or unless the suspect contacts an attorney of choice within thirty
minutes, before a decision about taking the test is required.  The rationale
for contacting a public defender regardless of financial need is supported
by the fact that many DUI arrests occur after normal working hours when
attorneys are not as readily available to consult.  Consequently, it is best
to rely on a statewide legal-defense-services system to coordinate after-
hours availability so that the intent of the Legislature in providing legal
advice to DUI suspects can be fulfilled.
     Arguably, our rule may tempt some public defenders simply to avoid
answering the phone in the wee morning hours, thereby providing would-be
clients a potential defense.  This tactic is, of course, available any time
a lawyer strategizes that ineffective assistance of counsel may be more
effective from a client's point of view than a competent defense.  We will
not assume that a professional, whose reputation and professional license
depend on the avoidance of chicanery, would make such use of our holding
here.  The only difficulty with our interpretation of the law is functional
-- that is, will the public defender system efficiently cover the late-night
or early-morning calls?  We have little doubt that statewide twenty-four-
hour coverage of DUI calls is not an insurmountable management task.
     Reversed.

                                        FOR THE COURT:


                                        Associate Justice



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                                     DISSENTING



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. 90-166


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      Caledonia Superior Court

Thomas Garvey                                December Term, 1990


Alan W. Cheever, J.

Robert M. Butterfield, Caledonia County Deputy State's Attorney,
  St. Johnsbury, for plaintiff-appellee

Rubin, Rona, Kidney & Myer, Barre, for defendant-appellant


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



     GIBSON, J., dissenting.  I respectfully dissent.
     Our law gives a person a statutory right to consult an attorney before
deciding whether to submit to an evidentiary DUI test. 23 V.S.A. { 1202(c);
State v. West, 151 Vt. 140, 143-44, 557 A.2d 873, 875-76 (1988).  This right
is conditioned, however, on the consultation taking place within a prescrib-
ed period of time.  Section 1202(c) provides that a person who is requested
by a law enforcement officer to submit to such a test "must decide" whether
to do so "within a reasonable time, but no later than 30 minutes from the
time of the initial attempt to contact the attorney."  (Emphasis added.)
Clearly, the statute contemplates that thirty minutes is an outside limit
within which to make the decision, whether or not the individual has been
successful in the attempt to talk with an attorney during this period.  The
condition is a reasonable one, given the fact that a person's blood-alcohol
level diminishes steadily once drinking has ceased and the alcohol consumed
has been absorbed into the system.  The Legislature was well within its
prerogatives when it attached such a condition.  State v. Brean, 136 Vt.
147, 152, 385 A.2d 1085, 1088 (1978) ("motorist's refusal right is not
absolute, but has been made expressly conditional -- a change that is
manifestly within the prerogative of the Legislature").
     In the instant case, the officer made a bona fide effort to contact an
attorney for defendant for more than the required thirty minutes.  Fourteen
calls to attorneys went unanswered.  The majority opinion presupposes that a
deliberate tactic of not answering the telephone in the wee morning hours is
a temptation to which professionals would not succumb.  I can only note that
this is not the first time we have encountered this phenomenon in this same
county.  See Gilman v. Commissioner of Motor Vehicles, ___ Vt. ___, ___, 583 A.2d 86, 87-88 (1990) (Dooley, J., dissenting) (seven unanswered calls with-
in county plus one unanswered call to attorney in adjacent county).  I
believe the statute  was fully complied with herein and that the trial court
properly concluded that defendant had refused to give a sample of his breath
after being accorded his legal rights.
     I, therefore, dissent, and am authorized to say that the Chief Justice
joins in this dissent.



                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice