State v. Fredette

State v. Fredette  (96-526); 167 Vt. 586; 705 A.2d 548

[Filed 17-Nov-1997]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-526

                            SEPTEMBER TERM, 1997


State of Vermont                    }     APPEALED FROM:
                                    }
                                    }
     v.                             }     District Court of Vermont,
                                    }     Unit No. 1, Windsor Circuit
Jaime F. Fredette                   }
                                    }     DOCKET NO. 299-3-96WrCr


       In the above-entitled cause, the Clerk will enter:

       The State appeals the district court's interlocutory order suppressing
  the results of defendant's breath test in a prosecution for driving while
  intoxicated (DWI), third offense.  The trial court suppressed the test on
  the grounds that the arresting officer incorrectly informed defendant's
  attorney that defendant had only one prior DWI conviction.  We reverse.

       During the evening of February 8, 1996, a state trooper responding to
  a report of a one-car accident found defendant lying injured inside his
  overturned car.  The officer noticed the smell of alcohol at the scene, and
  the dispatcher informed him that defendant had a prior record of motor
  vehicle violations.  At trial, the officer testified that he did not recall
  learning any specifics about defendant's prior record from the dispatcher,
  but he recalled defendant stating that he had an extensive prior history of
  motor vehicle violations.  Defendant was transported to a hospital, where
  he voluntarily submitted to a preliminary alcosensor screening test that
  yielded a result in excess of the legal limit.  The officer then informed
  defendant that he intended to process him for DWI.  After being read his
  rights, defendant asked to speak to an attorney.  The officer telephoned
  the public defender on call that evening.

       The public defender testified at trial that she had no memory of her
  telephone call with defendant, but her notes on a pre-printed form admitted
  into evidence indicated that the officer told her that defendant had one
  prior DWI conviction.  After speaking to the public defender, the officer
  turned the telephone over to defendant and left his hospital room.  The
  attorney and defendant consulted in private by telephone for several
  minutes.  According to the attorney's notes, defendant told her that he had
  an 8-year-old DWI conviction, that he had not been drinking, and that he
  wanted to take a breath test.  In light of the information provided to her,
  the public defender recommended that defendant take the test.  Defendant
  took a crimper test, which revealed that his blood-alcohol level exceeded
  the legal limit.  The public defender testified at trial that if she had
  known that defendant had two prior convictions and could have been charged
  with a third offense felony, she would have advised him not to take the
  test.

       Based on the facts related above, the trial court granted defendant's
  motion to suppress the results of the evidentiary breath test, concluding
  that by unintentionally providing the public defender with erroneous
  information, the arresting officer had denied defendant a meaningful
  opportunity to consult with his attorney.  In the court's view, the public
  defender was entitled to rely on the information provided by the officer,
  who is presumed to have access to resources enabling him to conduct a fast
  and accurate check for prior convictions.  The court also concluded that
  defendant was prejudiced as the result of his counsel receiving the
  erroneous

 

  information because the attorney would have given him different legal
  advice if the officer had provided the correct information.  On appeal, the
  State argues that (1) the court erred in concluding that defendant was not
  provided a meaningful opportunity to consult with counsel; (2) the record
  does not support the court's finding that the public defender would have
  advised defendant to refuse the test if she had known that he had two prior
  DWI convictions; and (3) in any case, suppression of the breath test was
  not the appropriate remedy.  We agree with the State on its first point and
  thus do not address the latter two issues.

       In Vermont, a person who is asked by a law enforcement officer to take
  an evidentiary breath test has a statutory right to consult with an
  attorney before deciding whether to submit to such a test.  See 23 V.S.A. §
  1202(c).  "The statutory mandate is fulfilled when reasonable efforts are
  made to allow an arrestee to consult privately with counsel."  State v.
  West, 151 Vt. 140, 144-45, 557 A.2d 873, 876 (1988).  This Court will not
  tolerate deliberate efforts by law enforcement personnel to thwart an
  arrestee's meaningful opportunity to consult with counsel. See State v.
  Lombard, 146 Vt. 411, 415, 505 A.2d 1182, 1185 (1985) (disapproving police
  conduct that effectively prevents arrestees from freely communicating with
  their attorneys in private); State v. Carmody, 140 Vt. 631, 636, 442 A.2d 1292, 1295 (1982) (police refusal to allow woman who was in custody but not
  under arrest to call her boyfriend was unauthorized police conduct that
  interfered with otherwise voluntary nature of woman's decision to refuse
  breath test).  But affording a meaningful opportunity to speak with counsel
  does not guarantee a fruitful or flawless consultation.  Thus, arrestees
  cannot be assured of speaking to the attorney of their choice, see State v.
  George, 161 Vt. 615, 616, 640 A.2d 26, 27 (1994) (mem.), or of obtaining
  sound advice from the attorney obtained for them.  See State v. Clark, 164
  Vt. 626, 627-28, 671 A.2d 1276, 1278 (1995) (mem.) (§ 1202(c) does not
  require that advice given by counsel be accurate; rather, statute requires
  only that arrestee be afforded meaningful opportunity to consult with
  counsel).

       Here, as defendant concedes, the court concluded that the arresting
  officer "unintentionally" provided erroneous information to the public
  defender.  The record supports this conclusion.  Further, it is undisputed
  that defendant was given several minutes to speak privately with counsel
  without police interference.  During that conversation, defendant had an
  opportunity to provide his attorney with correct information concerning the
  number of prior DWI convictions he had, but failed to do so.  Defendant
  argues that because of his physical condition he was in no position to
  clarify any defect in the information the arresting officer provided to his
  attorney.  But assuming without deciding that defendant's physical
  condition is relevant to the legal issue raised, the trial court's findings
  do not support defendant's argument.  The court found that defendant was
  not mentally incapacitated at the hospital, and that his responses to
  police questioning were spontaneous, lucid, and on point.  The court's
  findings also indicate that defendant was well aware of his extensive prior
  record, notwithstanding his failure to apprise his attorney of the correct
  information.  Given these facts, we find no merit to defendant's argument
  that he was deprived of a meaningful opportunity to consult with
  counsel.(FN1)  The

 

  statutory right to counsel concerns an arrestee's opportunity to consult
  freely with an attorney, not with the attorney's right to consult with, or
  obtain correct information from, police.

       Reversed.




 BY THE COURT:



 _______________________________________
 Jeffrey L. Amestoy, Chief Justice

 _______________________________________
 John A. Dooley, Associate Justice

 _______________________________________
 James L. Morse, Associate Justice

 _______________________________________
 Denise R. Johnson, Associate Justice

 _______________________________________
 Frederic W. Allen, Chief Justice (Ret.)
 Specially Assigned





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                                  Footnotes



FN1.  Because we find no plain error, we need not address defendant's
  argument, raised for the first time in a letter following briefing and
  argument, that the arresting officer was required to provide his attorney
  with accurate information concerning his prior motor vehicle record
  pursuant to 13 V.S.A. § 5277, which provides that an attorney representing
  a person under the Public Defender Act is entitled to use any state
  technical services and facilities for the "development or evaluation" of
  evidence available to the prosecutor.  See V.R.A.P. 28(i) (allowing for
  citation of supplemental citations "without argument").