State v. Pollander

Annotate this Case

State v. Pollander (96-387); 167 Vt. 301; 706 A.2d 1359

[Filed 5-Dec-1997]

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. 96-387

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont
Unit No. 3, Lamoille Circuit

Robert Pollander April Term, 1997

Ronald F. Kilburn, J.

Lee Dow, Lamoille County Deputy State's Attorney, Hyde Park, for
plaintiff-appellee

David G. Miller of Brown, Cahill, Gawne & Miller, St. Albans, for
defendant-appellant

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

AMESTOY, C.J. Defendant Robert Pollander appeals the Lamoille
District Court's denial of his motion to dismiss in a civil
license-suspension proceeding, and challenges adverse findings by the
court. Defendant argues that (1) the issue of his blood-alcohol content
(BAC) on the night of his arrest was resolved in his favor by an earlier
criminal jury verdict and was thus precluded from reconsideration at the
civil suspension hearing; and (2) the district court erred by failing to
consider defendant's necessity defense. We affirm.

Defendant was stopped by a law enforcement officer while driving in
Morristown in August 1995 and processed for driving under the influence
(DUI). Test results revealed defendant's BAC to be over the legal limit of
.08%. Defendant was subsequently arraigned on criminal DUI charges. The
State also moved to suspend defendant's driver's license in a civil action
pursuant to 23 V.S.A. § 1205(a). Defendant requested a civil suspension
hearing in district court. See 23 V.S.A. § 1205(f).

In response to various motions filed by defendant, the district court
continued the civil suspension proceeding until after the criminal DUI
trial was held in July 1996. At the criminal trial, defendant attacked the
validity of the State's evidence concerning his BAC and presented the
affirmative defense of necessity. As a basis for his necessity defense,
defendant stated that he was driving in his car to intervene in a friend's
potential suicide and that any alleged violation of the DUI statute was
necessary to save a human life.(FN1) The jury returned a general verdict of
not guilty. It did not identify the grounds upon which the verdict rested.

The civil suspension hearing was held in August 1996. Central to the
State's case was evidence that defendant's BAC was .08% or more on the
night of his arrest. Defendant argued that the State should have been
precluded from relitigating the issue of his BAC because that issue had
been resolved in his favor at the criminal trial. Defendant also sought to
introduce his defense of necessity. The court ruled that the State should
not be precluded from relitigating the BAC issue and denied defendant's
request to introduce the necessity defense. The court made the findings
required under the civil suspension statute, see id. § 1205(h), and entered
judgment for the State. Defendant appeals.

Defendant first argues that the criminal trial verdict precludes the
State from relitigating at the civil suspension hearing whether defendant's
BAC was .08% or more on the night of his arrest.(FN2) Defendant contends
that his acquittal at the criminal trial establishes a jury finding that

his BAC was not .08% or more, and therefore, the issue of defendant's BAC
should not have been considered at the summary suspension hearing.

We note initially that the applicability of collateral estoppel to a
given set of facts is a question of law. See, e.g., Emich Motors Corp. v.
General Motors Corp., 340 U.S. 558, 571 (1951). We thus review de novo the
district court's decision on this matter. Collateral estoppel, or issue
preclusion, "bars a party from relitigating an issue decided in a previous
action." In re J.R., 164 Vt. 267, 269, 668 A.2d 670, 673 (1995). Before
precluding relitigation of an issue, a court must "examine the first action
and the treatment the issue received in it." J. Cound et al., Civil
Procedure 1228 (6th ed. 1993). This Court looks to the five elements set
forth in Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990), and finds issue preclusion when:

(1) preclusion is asserted against one who was a party or in privity
with a party in the earlier action; (2) the issue was resolved by a
final judgment on the merits; (3) the issue is the same as the one
raised in the later action; (4) there was a full and fair opportunity
to litigate the issue in the earlier action; and (5) applying
preclusion in the later action is fair.

See also Berlin Convalescent Ctr., Inc. v. Stoneman, 159 Vt. 53, 56, 615 A.2d 141, 144 (1992) (applying Trepanier elements). For purposes of
analysis, we can assume that the first, third, and fourth Trepanier factors
are satisfied: the State was a party to both actions, defendant's BAC was
an issue in both proceedings, and there was a full and fair opportunity to
litigate the BAC issue in the earlier criminal trial. Defendant has not
established, however, that the second and fifth Trepanier factors have been
satisfied.

The second Trepanier factor requires that the issue be "resolved by a
final judgment on the merits" in the earlier proceeding. 155 Vt. at 265,
583 A.2d at 587. A related precept is that preclusion apply only to
"issues necessarily and essentially determined in a prior action." Berisha
v. Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984); see also American
Trucking Ass'ns v. Conway, 152 Vt. 363, 369, 566 A.2d 1323, 1327 (1989)
(issue preclusion appropriate only "where that issue was necessary to the
resolution of the [previous] action").

A party seeking preclusion has the burden of introducing "`a
sufficient record of the prior proceeding to enable the trial court to
pinpoint the exact issues previously litigated.'" Ianelli v. Standish, 156
Vt. 386, 388, 592 A.2d 901, 902 (1991) (quoting United States v. Lasky, 600 F.2d 765, 769 (9th Cir. 1979)). In Ianelli, this Court upheld the trial
court's decision to deny preclusion because the party seeking preclusion
had failed to show that the relevant issue was necessary to the earlier
jury verdict. Id.; see also Dowling v. United States, 493 U.S. 342, 350
(1990) (where party seeks to preclude relitigation of issue based on
previous general verdict acquittal, court must examine record of prior
proceeding to determine if rational jury could have grounded its verdict on
issue other than that which party seeks to foreclose from consideration).
It is not sufficient for a party to assert that an issue could have been
the basis of a prior judgment. The Restatement (Second) of Judgments
explains: "If a judgment of a court of first instance is based on
determination of two issues, either of which standing independently would
be sufficient to support the result, the judgment is not conclusive with
respect to either issue standing alone." Restatement (Second) of Judgments
§ 27 cmt. i (1982). Applying the rule in Ianelli to this case, we find
that defendant has not satisfied his burden.

In the criminal trial, defendant attacked the State's evidence that he
drove while his BAC was .08% or more. Defendant also presented the
affirmative defense of necessity based on his friend's alleged suicide
attempt. Accordingly, the trial judge instructed the jury that a not
guilty verdict would follow from either of two jury findings: either (1)
that defendant's BAC was under the legal limit; or (2) that, regardless of
defendant's BAC, there was a need that defendant drive

to his friend's house the night of the arrest. Thus the jury could
rationally acquit defendant without reaching a conclusion on his BAC.

The jury at defendant's criminal DUI trial returned a general verdict
of not guilty, but did not specify the grounds upon which the verdict
stood. Because defendant has not established that determination of his BAC
was necessary and essential to the criminal verdict, as required under the
second Trepanier factor, the trial court was correct to allow relitigation
of the BAC issue at the civil suspension proceeding.

Defendant has also failed to satisfy the fifth element, which requires
that "applying preclusion in the later action is fair." Trepanier, 155 Vt.
at 265, 583 A.2d at 587. Relevant considerations for applying this part of
the test include "the legal standards and burdens employed in each action."
Id; see also In re J.R., 164 Vt. 267, 269, 668 A.2d 670, 673 (1992)
(important factor to consider in issue preclusion is degree of proof
required in each action).

Defendant contends that this is a case of "crossover estoppel" where
application of issue preclusion is appropriate because the State had a full
and fair opportunity to litigate the issue of defendant's BAC in the
earlier criminal trial. Crossover estoppel occurs where an issue
adjudicated in a civil proceeding is claimed to be precluded in subsequent
criminal proceeding. State v. Stearns, 159 Vt. 266, 268, 617 A.2d 140, 141
(1992). We have noted that although cases of crossover estoppel are
relatively rare, there is no barrier to the application of the doctrine as
long as the standards of proof are the same and no right of jury trial is
attached. Id.

Here, defendant argues that the State's failure at the criminal trial
to prove beyond a reasonable doubt that his BAC was .08% or more precludes
the State, at the suspension hearing, from proving by a preponderance of
the evidence that defendant's BAC was above the legal limit. See 23 V.S.A.
§ 1205(i) (State has burden of proof by preponderance of evidence at civil
suspension hearing). Defendant ignores that what cannot be proven beyond a
reasonable doubt may still be proven by a preponderance of the evidence.
See State v. VanDusen, 8 Vt. L.W. 31, 32 (1997) (it is not inconsistent
that State could not prove issue at criminal trial under

beyond-reasonable-doubt standard but could at sentencing hearing governed
by preponderance-of-evidence standard); Donley v. Donley, ___ Vt.___, ___
686 A.2d 943, 945-46 (1996) (acquittal of domestic assault charges under
beyond-reasonable-doubt standard does not preclude court, under
preponderance-of-evidence standard, from extending abuse-prevention order,
even though same conduct led to both decisions); Cook v. Oberly, 459 A.2d 535, 540 (Del. Ch. 1983) (acquittal under criminal DUI statute, which
requires State to prove guilt beyond reasonable doubt, is not inconsistent
with adverse verdict under civil license-revocation statute, which requires
State to prove case only by preponderance of evidence). "[A]n acquittal in
a criminal case does not preclude the government from relitigating an issue
when it is presented in a subsequent action governed by a lower standard of
proof." Dowling, 493 U.S. at 349; see also Restatement (Second) of
Judgments § 28(4) (1982) (relitigation not precluded where party against
whom preclusion is sought had significantly heavier burden of persuasion
with respect to issue in initial action than in subsequent action).

II.

Defendant next argues that the trial court erred in denying him an
opportunity at the civil suspension hearing to present the affirmative
defense of necessity based upon defendant's purported need to intervene in
a friend's suicide attempt. Defendant acknowledges that the statute
limiting the issues to be heard at the license-suspension hearing does not
recognize the defense of necessity.(FN3) Defendant concedes further that he
makes no constitutional claim,(FN4) but

nevertheless urges that we create a public policy exception based on
recognition of circumstances where a violation of the law is justified. We
decline to do so for the reasons set forth below.

The summary suspension system created by the Legislature in 23 V.S.A.
§ 1205 serves the legitimate purpose of protecting public safety by quickly
removing "potentially dangerous drivers from the road." State v. Strong,
158 Vt. 56, 61, 605 A.2d 510, 513 (1992). A state retains "great leeway in
adopting summary procedures to protect public health and safety." Mackey v.
Montrym, 443 U.S. 1, 17 (1979). The Vermont civil suspension system is
intended to work in a "speedy and summary fashion." Stearns, 159 Vt. at
271, 617 A.2d at 142; see 23 V.S.A. § 1205(i) (hearings "shall be summary
proceedings").

The necessity defense "is one that partakes of the classic defense of
`confession and avoidance'. . . . It admits the criminal act, but claims
justification." State v. Warshow, 138 Vt. 22, 24, 410 A.2d 1000, 1001
(1980). This Court has recognized the necessity defense in criminal cases,
see, e.g., State v. Shotton, 142 Vt. 558, 561, 458 A.2d 1105, 1106 (1983),
and in tort litigation. See, e.g., Ploof v. Putnam, 81 Vt. 471, 475, 71 A. 188, 189 (1908). Our recognition of the necessity defense in the criminal
and tort settings emanates not from any state or federal constitutional
imperative but rather from the common law. See Warshow, 138 Vt. at 26-27,
410 A.2d at 1003 (Hill, J., concurring); Zal v. Steppe, 968 F.2d 924, 929
(9th Cir. 1992) (court not persuaded that constitutional right to present
necessity defense exists); State v. Dorsey, 395 A.2d 855, 857 (N.H. 1978)
(defendant has no constitutional or statutory right to have necessity
defense considered by jury).

The Legislature, therefore, is free to determine whether a necessity
defense is an issue to be considered in a civil suspension hearing. Cf.
State v. Stewart, 140 Vt. 389, 400, 438 A.2d 671, 676 (1981) (Legislature not bound by common law); State v.
Messier, 145 Vt. 622, 628, 497 A.2d 740, 743 (1985) (definition of
circumstances under which exculpatory or mitigating matters will be
recognized is within purview of Legislature). Accordingly, this Court may
consider whether to permit a necessity defense in the civil suspension
setting only if the Legislature has left the issue unresolved. See
Warshow, 138 Vt. at 27, 410 A.2d at 1003 (Hill, J., concurring) (court's
determination of availability of necessity defense is precluded when there
has been deliberate legislative decision).

In interpreting a statute, we must examine the plain meaning of its
language "in light of the statute's legislative purpose." Lubinsky v. Fair
Haven Zoning Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1987). The plain
language of 23 V.S.A. § 1205(g) indicates the Legislature's intent to limit
the issues that may be presented at a civil suspension hearing to those
enumerated in the statute. Excluding the necessity defense and other
affirmative defenses from among the issues to be litigated serves the goals
of the statute by minimizing procedural delay. Our analysis need not
proceed further. "[I]f that plain language resolves the conflict without
doing violence to the legislative scheme, there is no need to go further,
always bearing in mind that the paramount function of the court is to give
effect to the legislative intent." Id. We agree with the district court's
decision to bar a defense to the civil suspension that was not provided in
the statute. We thus need not address the merits of the defense itself.

Defendant presents a final argument that the trial court should have
dismissed the civil suspension because conducting the proceeding a year
after the original DUI processing undermines the statutory objective of a
speedy license-suspension process. Not only does defendant not show how
such delay prejudiced him, but he requested the continuances that
effectuated the delay. Defendant's argument is therefore without merit.

Affirmed.

FOR THE COURT:

_______________________________________
Chief Justice

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Footnotes

FN1. The dissent's contention that we have minimized the urgency of
defendant's situation is belied by the facts. Defendant's friend did not
indicate that she intended to take her own life when she called that
evening, and defendant initially planned to visit her home the next
morning. Moreover, defendant consumed two beers after the phone call, and
concedes that his wife, who had not consumed alcohol that evening, was
available to drive defendant to his friend's house.

FN2. Although defendant loosely uses the term res judicata, his
argument is more accurately characterized as one of issue preclusion,
sometimes referred to as collateral estoppel. See State v. Dann, 8 Vt.
L.W. 209, 210 (1997). Res judicata or claim preclusion "will bar a
subsequent action only if the court issued a final judgment in the previous
action, and `the parties, subject matter and causes of action are identical
or substantially identical.'" Id. (quoting Berisha v. Hardy, 144 Vt. 136,
138, 474 A.2d 90, 91 (1984)). The more limited doctrine of issue
preclusion, or collateral estoppel, estops a party from relitigating "those
issues necessarily and essentially determined" in prior litigation. Land
Investment, Inc. v. Battleground Assocs., 138 Vt. 316, 326, 415 A.2d 753,
759 (1980). In defendant's case, the criminal prosecution and subsequent
civil suspension proceeding are not identical causes of action, and thus
res judicata is not available.

FN3. 23 V.S.A. § 1205(g) provides that the issues at hearing shall be
limited to the following: (1) whether the law enforcement officer had
reasonable grounds to believe that a person was operating a vehicle in
violation of the DUI statute, see 23 V.S.A. § 1201; (2) whether the officer
informed the person of his or her rights and the consequences of taking or
refusing the evidentiary test; (3) whether the person refused to take the
test; (4) whether the test was taken and the results indicated a BAC of
.08% or more, the testing methods were reliable, and the results accurate;
and (5) whether the statutory requirements of § 1202 were complied with
regarding consent to the taking of BAC tests.

FN4. Whether an issue not among those listed in 23 V.S.A. § 1205(g)
may implicate due process rights in some other specific case is not before
us. See State v. O'Brien, 158 Vt. 275, 277-78, 609 A.2d 981, 982-83 (1992)
(due process associated with criminal proceedings not applicable to
license-suspension hearing; whether specific procedural safeguards beyond
those statutorily required may be required generally or in specific case
need not be addressed).

---------------------------------------------------------------------------
Dissenting

No. 96-387

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont
Unit No. 3, Lamoille Circuit

Robert Pollander April Term, 1997

Ronald F. Kilburn, J.

Lee Dow, Lamoille County Deputy State's Attorney, Hyde Park, for
plaintiff-appellee

David G. Miller of Brown, Cahill, Gawne & Miller, St. Albans, for
defendant-appellant

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

MORSE, J., dissenting. Consider these facts: Jackie is a young woman
who has suffered for years from severe depression and post-traumatic stress
disorder resulting from beatings by her former husband. On several
occasions she has attempted suicide by taking drug overdoses or slashing
her arms and legs. To deal with future emergencies, Jackie and her
treating psychiatrist have established a "support list" made up of her
therapist and five or six of Jackie's friends whom she can call day or
night if she is ever in trouble.

One such evening occurs in early August 1995. She had been diagnosed
earlier that day with breast cancer. Her diabetes had been getting worse
for several days. Her former husband had just paid her a visit. It seemed
to Jackie as though "everything [had come] to a head on that day" and that
she simply "couldn't cope." She called her therapist. He was out of town.
She tried several other people on her support list. They were unreachable.
Finally, at midnight, Jackie reached her old friend and employer, Robby
Pollander, who was also a member of the support team.

Pollander could tell from her voice that Jackie was "in trouble."
Indeed, he "felt that Jackie's life was at risk." Taking his dog with him
for company, he started to drive to Jackie's house in Lyndonville.
Although he had consumed several beers, he didn't believe that his ability
to drive was impaired. Nevertheless, he was stopped en route by a police
officer who had observed him rapidly accelerate from forty to sixty and
then back to forty miles per hour in a fifty mile per hour zone. The
officer smelled alcohol on Pollander's breath and transported him to the
station. Once there he declined the assistance of a lawyer and was
administered a breath test. It registered over the legal limit of .08
percent.

When Pollander ultimately went to Jackie's house, he found her
conscious but in a seemingly "blank" state. Suddenly she went into
convulsions and fell to the floor. Pollander called 911 and an emergency
medical team arrived shortly thereafter. One member of the EMT told him
that his quick action had probably saved Jackie's life.

Pollander was later tried on criminal DUI (driving under the
influence) charges. Jackie, the arresting officer, and Pollander himself
all provided undisputed testimony at trial concerning the events outlined
above. The jury returned a verdict of not guilty. In a subsequent
administrative license-suspension hearing, however, the trial court refused
to permit Pollander to introduce the same evidence, found that all of the
elements of the offense of DUI had been established by a preponderance of
the evidence, and entered judgment for the State.

These are the real, undisputed facts of this case. Yet one would
never know from reading the Court's opinion the injustice this matter
poses. Indeed, it is the Court's failure to focus on the facts that leads,
in my view, to its erroneous conclusion that Pollander's purpose in driving
on the evening in question was irrelevant to his license suspension. Quite
to the contrary, there is virtually no evidence that the Legislature, in
providing for administrative suspensions, intended to deprive an individual
of the traditional, common law defense of "necessity," the principle that a
violation of law may be justified to serve a greater public interest, in
this case to preserve a human life. See State v. Warshow, 138 Vt. 22,
26-27, 410 A.2d 1000, 1003 (1980) (Hill, J., concurring) (necessity defense recognizes
that there are circumstances "where the value protected by the law is
eclipsed by a superseding value, and that it would be inappropriate and
unjust to apply the usual criminal law"). Accordingly, I respectfully
dissent.(FN1)

The Court's conclusion that evidence of Pollander's purpose in driving
on the night in question was properly excluded rests upon its
interpretation of 23 V.S.A. § 1205(g). That section provides that "[t]he
issues at the [suspension] hearing shall be limited to the following . . .
" The statute then sets forth the five elements that the State must prove
by a preponderance of the evidence: (1) whether the officer had reasonable
grounds to believe the person was operating or in control of a vehicle; (2)
whether the officer informed the person of the consequences of taking or
refusing to take the alcohol test; (3) whether the person refused to permit
the test, or (4) whether the test was taken and the results showed an
alcohol concentration of .08 percent or higher; and (5) whether the person
was properly advised of the rights set forth in § 1202.

Noting that the necessity defense is not among the issues listed in §
1205(g), the Court concludes that the Legislature must have intended to
exclude it, and therefore that Pollander's evidence did not matter. The
Court's reasoning is mistaken in several respects. First, it

misapplies the interpretive principle of "expressio unius est exclusio
alterius" (the expression of one thing is the exclusion of another). See
In re Verburg, 159 Vt. 161, 165, 616 A.2d 237, 239 (1992). As one court
has explained, the "well established rule of statutory construction
provides that the expression of one or more items of a class indicates an
intent to exclude all items of the same class which are not expressed."
Pima County v. Heinfeld, 654 P.2d 281, 282 (Ariz. 1982) (emphasis added);
see also In re Downer's Estate, 101 Vt. 167, 177, 142 A. 78, 82 (1928)
("This maxim properly applies only when in the natural association of ideas
in the mind of the reader that which is expressed is so set over by way of
strong contrast to that which is omitted."). Each of the five issues set
forth in § 1205(g) represents an element that the State must prove by a
preponderance of the evidence. The statute makes no mention whatsoever of
any defenses that may be asserted at the hearing. Thus, the only inference
that we may reasonably draw from the maxim is that the Legislature intended
the factors set forth in § 1205(g) to represent the entirety of the State's
burden.

In addition, we have repeatedly "emphasized that the precept [of
expressio unius] . . . is only one aid to . . . interpretation and must
give way to others in appropriate cases." Verburg, 159 Vt. at 166, 616 A.2d
at 239; see also Oxx v. Department of Taxes, 159 Vt. 371, 375, 618 A.2d 1321, 1324 (1992) (The maxim "is relatively weak among rules of statutory
construction."); Clymer v. Webster, 156 Vt. 614, 625, 596 A.2d 905, 912
(maxim of expressio unius should be applied with caution and is not
conclusive as to statute's meaning). Indeed, courts and commentators alike
have noted the weakness of a maxim premised on the assumption that all
omissions in legislative drafting are deliberate. As one federal court has
observed, "this maxim is increasingly considered unreliable . . . for it
stands on the faulty premise that all possible alternative or supplemental
provisions were necessarily considered and rejected by the legislative
draftsmen." National Petroleum Refiners Ass'n v. Federal Trade Comm'n, 482 F.2d 672, 676 (D.C. Cir. 1973); see also Director v. Bethlehem Mines Corp.,
669 F.2d 187, 197 (4th Cir. 1982) ("The maxim is to be applied with great
caution and is recognized as

unreliable."); R. Posner, Statutory Interpretation - in the Classroom and
in the Courtroom, 50 U. Chi. L. Rev. 800, 813 (1983) (canon based upon
assumption of "legislative omniscience . . . is not helpful"). The State
has not adduced, nor has research uncovered, any evidence in the
legislative history of § 1205(g) that the Legislature even considered, much
less resolved to abrogate, any affirmative defenses.

Caution in applying the maxim is particularly advised when the result
is to eliminate a longstanding common law doctrine such as the necessity
defense. See State v. Hastings, 801 P.2d 563, 564 (Idaho 1990) ("Necessity
as a defense has a long history," appearing in early English cases); State
v. Tate, 505 A.2d 941, 948 (N.J. 1986) ("provision for necessity-
justification encapsulates a criminal defense that has long been recognized
at common law"). As noted, the doctrine "proceeds from the appreciation
that, as a matter of public policy, there are circumstances where the value
protected by the law is eclipsed by a superseding value." Warshow, 138 Vt.
at 27, 410 A.2d at 1003 (Hill, J., concurring).

The defense has been recognized in a variety of circumstances, not all
involving heinous offenses. In State v. Messler, 562 A.2d 1138, 1140-42
(Conn. App. Ct. 1989), for example, the court held that a defendant charged
with speeding had the right to present the defense of necessity where he
claimed that he had sped up to pass other cars and thereby allow a police
officer in pursuit of another car to pass him. And in a case closely on
point, this Court has held that a defendant was entitled to raise the
defense to a charge of driving under the influence where she claimed that
she had been assaulted and was driving herself to the hospital. See State
v. Shotton, 142 Vt. 558, 561-62, 458 A.2d 1105, 1105-06 (1983). We have
also recognized that the defense may be raised in a civil proceeding,
holding that a trespass may be justified by the trespasser's immediate need
to seek shelter from a sudden storm. See Ploof v. Putnam, 81 Vt. 471, 475,
71 A. 188, 189 (1908). As the Court in Ploof observed, "[t]he doctrine of
necessity applies with special force to the preservation of human life."
Id.

We have repeatedly stated, moreover, that principles deeply ingrained
in the common law

will not be overturned by statute absent clear and unambiguous language to
that effect. See Swett v. Haig's Inc., 164 Vt. 1, 5, 663 A.2d 930, 932
(1995) ("Words of doubtful meaning do not change common law rules; the
intent to do so must be expressed in clear and unambiguous language.");
Estate of Kelley v. Mogul's, Inc., 160 Vt. 531, 533, 632 A.2d 360, 362
(1993) ("`[R]ules of the common law are not to be changed by doubtful
implication, nor overturned except by clear and unambiguous language.'")
(quoting E.B. & A.C. Whiting Co. v. City of Burlington, 106 Vt. 446, 464,
175 A. 35, 44 (1934)).

Because § 1205(g) does not foreclose the time-honored defense of
necessity in "clear and unambigous language," I am unable conclude that the
Legislature intended to preempt its use. Indeed, it is extraordinary to
believe that the Legislature harbored an intent to deprive defendant of his
driver's license for what he did in these circumstances.

Accordingly, I would reverse the judgment of the trial court.

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. Contrary to the Court's assertion, the urgency confronting
defendant was clear and unambiguous. It is true, as the Court observes,
that Jackie did not expressly state that she intended to kill herself. I
was not aware, however, that such a statement was a necessary pre-
condition to suicide. When one receives a telephone call from a friend who
is distraught and who has twice previously attempted suicide, it is not
unreasonable to infer that she may try again. Indeed, the support list was
designed precisely for these circumstances. The Court also notes that
defendant did not immediately decide to visit Jackie that evening. The
Court fails to mention, however, that defendant changed his mind after
reflecting on Jackie's "two previous attempts to take her life and how
distraught she sounded on the telephone." Subsequent events proved
defendant's concern to be well founded. Nor, finally, was it necessarily
unreasonable for defendant to decline to bring his wife on such an urgent
mission, at 2:00 in the morning, particularly when he considered it his
personal responsibility. Certainly a jury was entitled to hear the
evidence and decide for itself whether defendant's actions were necessary
under the circumstances.

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