State v. Forcier

STATE_V_FORCIER.92-530; 162 Vt. 71; 643 A.2d 1200

[Opinion Filed May 20, 1994]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-530


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Michael Forcier                              December Term, 1993



 John E. Pyatak, Acting J.

 Michael P. Harty, Windham County Deputy State's Attorney, and Gary Kessler,
   Supervising Appellate Prosecutor, Montpelier, for plaintiff-appellee

 David G. Reid, Brattleboro, for defendant-appellant



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



      JOHNSON, J.   Defendant pled nolo contendere to a misdemeanor violation
 of 23 V.S.A. { 1201(A)(2), driving while intoxicated (DWI), reserving the
 right to appeal the district court's denial of his motion to suppress
 pursuant to V.R.Cr.P. 11(a)(2).  Defendant argues on appeal that all
 testimonial and non-testimonial evidence stemming from his DWI arrest must
 be suppressed because the officers exceeded the arrest authority provided by
 V.R.Cr.P. 3(a)(5) in that they: (1) arrested defendant more than two hours
 after the alleged offense occurred; and (2) interrogated defendant after
 they arrested him.  We reverse and remand because the V.R.Cr.P. 3(a)(5)
 arrest for DWI did not give police authority to interrogate defendant.

 

      On March 29, 1991, defendant was involved in a two-car automobile
 accident at 9:44 p.m.  State police responded to the scene and were advised
 by the operator of the other vehicle that defendant had left the scene of
 the accident and travelled to his home, which was approximately two miles
 away.  Two state troopers went to defendant's home and encountered defendant
 when he exited his home from a back porch.  The officers observed evidence
 of defendant's intoxication.  Upon questioning, defendant admitted to having
 operated his vehicle and was requested to produce his license, registration
 and proof of insurance, which he did.
      A third officer, Trooper Favreau, arrived at the scene.  He
 administered an alco-sensor test and requested that defendant perform
 dexterity tests.  Defendant's performance indicated substantial impairment;
 defendant's speech was slurred, his walking was unsteady, and he stumbled.
 Defendant admitted in response to questioning that he had had four beers and
 that the time of his last drink was about an hour earlier, around 9:30 p.m.
      At 11:10 p.m., defendant was placed in handcuffs and transported to the
 police barracks in a cruiser.  Trooper Favreau testified at the suppression
 hearing that although he could not remember exactly what he said to defend-
 ant at that time, he told defendant he was in custody for driving while
 intoxicated.  At the barracks, defendant was given Miranda warnings and,
 after waiving counsel, he was interrogated.  The interrogation yielded
 "substantial incriminating evidence."  The officers also read the Implied
 Consent Form to defendant; defendant consented to the breath sample and
 declined the offer to contact an attorney.  The officers collected the
 sample at 11:45 p.m.  Trooper Favreau entered on the arrest form that
 defendant was formally arrested at 11:50 p.m.  The trooper subsequently

 

 issued a citation to defendant for DWI and leaving the scene of an accident
 (LSA) and released defendant.
                                     I.
      On appeal, defendant argues that his arrest and subsequent
 interrogation exceeded the scope of arrest authority provided by V.R.Cr.P.
 3(a)(5).  Rule 3(a)(5) is an exception to the general rule that an officer
 cannot arrest a person without a warrant for a misdemeanor that was not
 committed in the officer's presence.  See generally V.R.Cr.P. 3(a).
 Specifically, Rule 3(a)(5) provides:
      An officer may also arrest a person without a warrant . . . (5)
      when the officer has probable cause to believe a person has
      committed or is committing a violation of 23 V.S.A. { 1128 [LSA]
      or 23 V.S.A. { 1201 [DWI].  An arrest under this subdivision shall
      be made within two hours of the time the alleged offense was
      committed, and not thereafter.  In the case of an arrest under
      this subdivision for an alleged violation of 23 V.S.A. { 1201, the
      person may be detained only for the limited purpose of obtaining a
      sample of breath or blood.


 (Emphasis added.)  Because "V.R.Cr.P. 3 was designed to both codify and
 enhance the protections conferred by the Fourth Amendment," the remedy for
 violation of Rule 3 is suppression of the evidence seized under the
 exclusionary doctrine.  State v. Laflin, ___ Vt. ___, ___, 627 A.2d 344, 346
 (1993).
                                     A.
      Defendant's first argument is that he was formally arrested more than
 two hours from the time of the alleged offense and therefore his arrest was
 not authorized by V.R.Cr.P. 3(a)(5).  Defendant's argument is based on the
 fact that Trooper Favreau entered 11:50 p.m. as the time of "formal" arrest,
 though the alleged offense was committed at 9:44 p.m.  The trial court,
 however, found that defendant was arrested by Trooper Favreau at 11:10 p.m.

 

 when the trooper placed defendant in handcuffs, told defendant he was in
 custody for DWI, and placed defendant in a police cruiser for transport to
 the police barracks.  We agree with the trial court.  A suspect is arrested
 when the suspect's liberty is restrained or the suspect submits to the
 officer's authority.  State v. Blaine, 133 Vt. 345, 351, 341 A.2d 16, 20
 (1975).  Here, within two hours of the alleged offense, defendant was
 actually restrained by Trooper Favreau and told he was in custody for DWI.
 Trooper Favreau's notation of a time beyond the two-hour limit as the arrest
 time on the arrest report did not nullify the occurrence of the arrest at
 11:10 p.m.
                                     B.
      Defendant's second argument is that the officers exceeded the scope of
 the arrest authority provided by Rule 3(a)(5) -- that "the person may be
 detained only for the limited purpose of obtaining a sample of breath or
 blood" -- by interrogating defendant to obtain testimonial evidence.
 Defendant contends that this abuse of the limited arrest authority rendered
 the entire detention illegal and therefore, both the testimonial evidence
 and the breath sample must be suppressed.
      Rule 3(a)(5) was not promulgated by this Court; it was enacted by the
 Legislature.  1987, No. 269 (Adj. Sess.), { 1(a)(5).  The overriding
 objective of statutory construction is to ascertain the intent of the
 Legislature.  State v. Wilcox, __ Vt. __, __, 628 A.2d 924, 926 (1993).
 Where the meaning of a statute is plain on its face, the statute must be
 enforced according to its express terms.  Id.  Nonetheless, we avoid
 interpretations that would lead to "an unjust, unreasonable and absurd

 

 consequence."  O'Brien v. Island Corp., 157 Vt. 135, 139, 596 A.2d 1295,
 1297 (1991).
      The language of Rule 3(a)(5) is plain and unambiguous.  If the arrest
 is for DWI, the arrest can be used for one purpose only -- "the limited
 purpose of obtaining a sample of breath or blood."  This reading is
 supported by the Reporter's Notes to the Rule, which provide in relevant
 part that:
      The rule . . . limits the authority to arrest by stating that in
      arrests for alleged driving while under the influence, "the person
      may be detained only for the limited purpose of obtaining a sample
      of breath or blood."  Thus an arrest for violation of 23 V.S.A. {
      1201 must terminate once this testing has been completed, and the
      detention can be utilized for no other purposes.  This is a
      substantial limitation.  Testing results have only limited
      admissibility without information as to drinking history, usually
           obtained by questioning the suspect.(FN1)


 Reporter's Notes, V.R.Cr.P. 3(a)(5), 1988 Amendment (emphasis added).
      Seizing on this last sentence of the Reporter's Notes, the State argues
 that a literal reading of the rule would be an irrational construction
 because the value of the test without information about the suspect's
 drinking history is limited.  In addition, according to the State, a literal
 reading of the rule would lead to the absurd result that an arresting
 officer could not even apprise a suspect of the rights under law surrounding
 the taking of the test.  Instead, the State argues that Rule 3(a)(5) enables
 officers to detain persons suspected of DWI outside the presence of the
 officers, "long enough to investigate, reaffirm the probable cause, [and]

 

 administer an evidentiary test along with the attendant 'processing' . . .
 ."  The State's argument overstates the limits of the plain meaning of the
 rule and is contrary to Rule 3(a)(5)'s legislative history.
      The rule allows officers to obtain vanishing non-testimonial evidence
 of a suspect's blood-alcohol content through the taking of a blood or breath
 sample.  As part of the necessary procedure to obtain the sample, the
 defendant must be apprised of the various rights connected to the taking of
 the sample and the authority to do so is clearly implied under the plain
 meaning of rule 3(a)(5).  Interrogation, however, is not a part of that
 necessary procedure, and its inclusion is not essential to avoid an absurd
 consequence.  Although it is true that the test alone has limited value, a
 defendant's testimonial evidence can be obtained prior to arrest, as it was
 here, or at another time.  Thus, the plain meaning of the Rule does not, as
 the State claims, lead to the absurd result that an officer is authorized to
 obtain a sample that has no value.  The exception was an expansion, albeit a
 limited one, of arrest authority and was designed to strike a new balance
 between the right of an individual to be free from arbitrary arrest for
 minor offenses and the right of the public to be protected.
      That the Legislature was striving for such a limited expansion of
 arrest authority is evident in Rule 3(a)(5)'s legislative history.  Rule
 3(a)(5) was part of House Bill 62, an act relating to arrests for
 misdemeanors.  At the time the bill was introduced, our rules allowed an
 officer to arrest a person without a warrant if (1) the person committed a
 felony or misdemeanor in the officer's presence; (2) the officer had
 probable cause to believe the person had committed a felony, even if the
 officer was not present when the offense was committed; or (3) a person

 

 committed a misdemeanor that involved either a violation of an abuse
 prevention order or an assault on a household or family member, even if the
 offense was not committed in the presence of the officer.  V.R.Cr.P.
 3(a)(1)-(2) (1986 Supp.).  As originally introduced, H-62 would have
 authorized the warrantless arrest of "a person whom the officer ha[d]
 probable cause to believe ha[d] committed a crime punishable by
 imprisonment," even if the offense was not committed in the officer's
 presence.  H-62, 1987 Sess.  This would have eliminated the presence
 requirement for warrantless misdemeanor arrest and thereby the distinction
 between felonies and misdemeanors in the area of arrest authority.
      The Senate would not support such a broad expansion of the arrest power
 and did not pass the bill during the first year of the biennial session.  An
 Act Relating to Arrests for Misdemeanors: Hearings on H-62 Before the Senate
 Judiciary Committee, 1987 Adj. Sess. (Apr. 27, 1988) (statement of Committee
 Chair Mary Just Skinner).  The focus of the Senate committee hearings in the
 adjourned session was on rewriting H-62 to maintain the misdemeanor/felony
 distinction while creating several exceptions to the presence requirement.
      The committee discussed whether any exception was needed for DWI not
 committed in an officer's presence.  The Stowe Chief of Police explained
 that "the act of taking [the suspect] to the station to take [a] DWI test
 [is] an arrest."  After hearing testimony from several witnesses, the DWI
 portion of the hearings concluded with the following exchange:

 

      Senator Chester Ketcham:  Why can't we say, or can we say, that in
      a DWI situation, the officer has a right to restrain the person's
      liberty for the limited purpose of obtaining a test? . . . So what
      we're trying to do is to make it clear that the test that's taken
      can be taken back at the barracks and the person can be restrained
      for that purpose. . . . I see no problem in writing the law so
      that the officer has the right to restrain the person for the sole
      purpose of taking the test. . . .  Otherwise [the suspect is] free
      to go.

      . . .

      Senator Mary Just Skinner:  So [then the arrest] would be for the
      sole reason of taking a test.

      Senator Chester Ketcham:  Yes.

 Id.  The committee then assigned its legislative aide the task of drafting
 the exception.  Id.  This exchange unequivocally demonstrates that the
 legislative intent and the plain meaning of Rule 3(a)(5) are in harmony  --
 an arrest for misdemeanor DWI not committed in the officer's presence can be
 for the purpose of obtaining a blood or breath sample only.  Thus, we agree
 with defendant that the officers could not interrogate him, even after
 obtaining a Miranda waiver, upon the authority of the Rule 3(a)(5) arrest.
      The State counters that because defendant was eventually cited for
 leaving the scene of an accident (LSA), he could have been arrested for that
 offense and then lawfully interrogated at the barracks regarding the DWI
 offense.  Compare Colorado v. Spring, 479 U.S. 564, 575-77 (1987) (upholding
 the admissibility of defendant's statements about crime of murder where
 defendant was arrested for firearms violation and defendant was not told in
 advance of all possible subjects of questioning); State v. Hollis, ___ Vt.
 ___, 633 A.2d 1362 (1993) (holding that if defendant could have been
 lawfully arrested for one offense, but officer announced a different ground
 for arrest, which was later ruled invalid, evidence obtained as result of
 arrest need not be suppressed as tainted fruit if articulated offense and
 offense for which there was probable cause are reasonably related).  The
 State's argument is without merit because defendant could not have been
 arrested for LSA without a warrant.
      Leaving the scene of an accident is a misdemeanor and, like DWI, a
 suspect can be arrested without a warrant for LSA not committed in an
 officer's presence under V.R.Cr.P. 3(a)(5).  The arrest authority of Rule
 3(a) as it relates to misdemeanors, however, is circumscribed by Rule
 3(c)(1).  Specifically, Rule 3(c)(1) directs in relevant part that:
      [a] law enforcement officer acting without warrant who is
      authorized to arrest a person for a misdemeanor under subdivision
      (a) of this rule shall, except as provided in paragraph (2) of
      this subdivision, issue a citation to appear before a judicial
      officer in lieu of arrest.  In such circumstances, the law
      enforcement officer may stop and briefly detain such person for
      the purpose of determining whether any of the exceptions in
      paragraph (2) applies, and issuing a citation, but if no arrest is
      made, such detention shall not be deemed an arrest for any
      purpose.

 The exceptions in paragraph (2) are: (A) the suspect's identify is not known
 or given; (B) "[a]rrest is necessary to obtain nontestimonial evidence upon
 the person or within the reach of the arrested person;" (C) arrest is
 necessary to prevent further harm or criminal conduct; (D) the suspect has
 no ties to the community or there is substantial likelihood the suspect will
 refuse to respond to the citation; (E) the suspect has a history of failure
 to appear; or (F) "[a] situation described in (a)(2) is present."  V.R.Cr.P.
 3(C)(2).  Because the officers took nontestimonial evidence in the form of a
 breath sample, the issue is whether (B) applied.
      To prove the offense of LSA, the State need only show that a person
 failed to stop after an accident or failed to give identification and other
 required information to the injured party or an enforcement officer.  23
 V.S.A. { 1128(a).  Evidence of defendant's blood-alcohol content was not

 

 relevant to the element of the offense.  Because (c) is written to minimize
 when arrests are made for misdemeanors by making citation in lieu of arrest
 the norm and arrest the exception, we conclude that (B) did not apply.
 Consequently, defendant could not have been arrested for LSA and the
 interrogation could not have been grounded on such an arrest.
      Because the officers were without authority to interrogate defendant
 while he was under arrest, we agree that the statements defendant made at
 the police barracks must be suppressed.  Defendant urges that we go further
 and declare the arrest void ab initio and suppress the breath test, in
 addition to the statement.  We do not agree that the unauthorized
 interrogation voided the arrest from its inception.  Defendant cites no
 authority for his argument, and we do not find it persuasive.  The
 interrogation was not authorized by Rule 3, and the remedy is suppression.
 Laflin, ___ Vt. at ___, 627 A.2d  at 346.  The arrest and breath sample were
 authorized by Rule 3(a)(5), and the breath test is admissible.
      The trial court's ruling denying suppression of testimonial evidence
 gathered through interrogation at the police barracks is reversed.  The
 cause is remanded.

                                    FOR THE COURT:



                                    _______________________________
                                    Associate Justice




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                                  Footnotes


FN1.       To the extent that the penalties for DWI were amended after the 1988
   amendment to Rule 3, so that DWI is, in some circumstances, a felony, see 23
  V.S.A. { 1210(b)-(f), the Reporter's Notes are outdated because Rule 3 has
  always allowed an officer to arrest a person if there is probable cause to
  believe the person has committed a felony, even if the offense was committed
  outside the officer's presence.  See V.R.Cr.P. 3(a)(1).