State v. Berini

State v. Berini  (96-549); 167 Vt. 565; 701 A.2d 1055

[Filed 28-Jul-1997]


                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-549

                         JUNE TERM, 1997



State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 3, Orange Circuit
Christopher M. Berini           }
                                }     DOCKET NOS. 287-8-96 OeCr &
                                                  15-8-96 OeCs


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

       The State appeals an order of the Orange District Court suppressing
  defendant's refusal to submit to a breath test because he was not afforded
  an opportunity to consult with an attorney. We affirm.

       Defendant was arrested for driving under the influence.  The arresting
  officer informed defendant of his right to speak with an attorney before
  deciding whether to submit to a breath test.  Defendant refused to provide
  a sample without the advice of an attorney.  Despite numerous attempts, the
  officer was unable to contact defendant's lawyer or a public defender.
  After approximately one hour, the officer asked defendant to provide a
  sample, but defendant declined to submit without consulting an attorney. 
  The officer concluded that this constituted a refusal.

       Defendant moved to suppress the refusal on the ground that he was
  denied the opportunity to consult with counsel.  Under the authority of
  State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991), the trial
  court granted the suppression motion.   The State thereupon moved for
  permission to take an interlocutory appeal.  V.R.A.P. 5(b).  The court
  granted the motion.

       Vermont's implied-consent statute gives a person from whom a breath
  test has been requested by a law enforcement officer a right to consult an
  attorney prior to deciding whether to take the test.  State v. Fuller, 163
  Vt. 523, 526, 660 A.2d 302, 304 (1995); 23 V.S.A. § 1202(c).  In Garvey we
  held that a defendant's license may not be suspended where the "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."  157 Vt. at 106, 660 A.2d  at 268. We specifically rejected the
  State's contention that the statute authorized the officer to record a
  refusal if, after thirty minutes, a lawyer could not be found.  Id.

       Garvey plainly controls in this case.  Although the State invites the
  Court to reconsider and reverse Garvey, it offers no new evidence or
  persuasive rationale to demonstrate that the case was wrongly decided. 
  While not slavish adherents to stare decisis, see Cooperative Fire Ins.
  Ass'n v. White Caps, Inc., 8 Vt. L.W. 81, 81 (1997), we generally require
  more than mere disagreement to overturn a decision, particularly one of
  such recent vintage.

 


     Affirmed.

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


       Gibson, J., dissenting.  I agree that this case is similar in all
  material respects to State v. Garvey, 157 Vt. 105, 595 A.2d 267 (1991). 
  Nevertheless, because I believe the majority continues to misconstrue 23
  V.S.A. § 1202(c), see id. at 107-08, 595 A.2d  at 268-69 (Gibson, J.,
  dissenting), I respectfully dissent.

       In doing so, I note the Legislature recently acted to remove all doubt
  about the extent of a person's right to counsel prior to deciding whether
  to take an evidentiary DUI test.  1997, No. 56, § 2 ("The person must make
  a decision about whether or not to submit to the test or tests at the
  expiration of the 30 minutes regardless of whether a consultation took
  place.").

       Accordingly, I would overrule Garvey and reverse the trial court
  decision.  I am authorized to say that Chief Justice Amestoy joins in this
  dissent.





                              BY THE COURT:



                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice




                Dissenting:


                              __________________________________ 
                              Jeffrey L. Amestoy, Chief Justice

                              __________________________________ 
                              Ernest W. Gibson III, Associate Justice