State v. Coburn

State v. Coburn (2005-033); 179 Vt. 448; 898 A.2d 128

2006 VT 31

[Filed 14-Apr-2006]


       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.

                                   
                                 2006 VT 31

                                No. 2005-033


  State of Vermont                               Supreme Court

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

  Gary Nelson Coburn                             November Term, 2005


  Robert Grussing III, J.

  William H. Sorrell, Attorney General, David Tartter, Assistant Attorney
    General, and Sara R. Parsowith, Legal Intern (On the Brief), Montpelier,
    for Plaintiff-Appellee.

  William E. Kraham of Weber, Perra & Munzing, P.C., Brattleboro, for
    Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶  1.  BURGESS, J.   Defendant appeals his conviction for criminal
  refusal under 23 V.S.A. § 1201(b).  The statute makes it a crime for a
  person suspected of driving under the influence to refuse a police
  officer's reasonable request for a breath test if that person has a prior
  DUI conviction.  Defendant argues that the standardized paragraph read by
  police to DUI suspects, warning them that refusing a breath test may be
  charged as a crime, is incomprehensible as a matter of law and therefore
  violates due process.  Defendant also argues that, absent a comprehensible
  warning, the State failed to prove that the police officer's request for a
  breath test was "reasonable," which is a required element of the statutory
  offense. (FN1)  We affirm.

                                     I.

       ¶  2.  Defendant does not dispute the facts.  On February 26, 2004,
  defendant was pulled over for speeding.  Upon suspicion that defendant was
  driving under the influence, the police officer requested a preliminary
  breath test.  Defendant refused.  The police officer arrested defendant
  and, upon returning to the police station to administer an evidentiary
  breath test, read the following standardized warning aloud to defendant:

    If you refuse to provide an evidentiary test, and if you have
    either been previously convicted of an offense pursuant to Title
    23 section 1201 or of any section of present or prior law of this
    or any other jurisdiction which prohibited operating, attempting
    to operate, or being in actual physical control of a motor vehicle
    on a highway while under the influence of intoxicating liquor or
    drugs, or both, or while having .08 percent or more by weight of
    alcohol in the person's blood or an alcohol concentration of .08
    or more, or if you have been involved in an accident/collision
    resulting in serious bodily injury or death of another, you may be
    charged with the crime of criminal refusal.
   
  When asked whether he understood the warning (which was one portion of a
  lengthier set of advisements), defendant said he did and persisted in his
  refusal to take a breath test.  Defendant declined to exercise his right to
  speak with an attorney before making his decision.  Defendant, who had a
  prior DUI conviction, was charged with criminal refusal.

       ¶  3.  Before trial, defendant filed a motion to suppress evidence of
  his refusal, arguing that, as a matter of law, the standardized warning
  could not be understood by a person of ordinary intelligence, and therefore
  any conviction based on his refusal would violate due process.  The trial
  court denied this motion in a written order.  While acknowledging that the
  warning read to defendant was "arguably confusing," the court concluded
  that, at most, a suspect might be uncertain as to how the statute would be
  applied in his or her particular situation.  The court determined that the
  warning was effective in conveying "that a refusal to submit to the
  evidentiary breath test could result in a charge of criminal refusal under
  some circumstances.  Most reasonable listeners will also understand that a
  refusal could result in a charge of criminal refusal if there is a prior
  DUI."

       ¶  4.  At trial, defendant moved for a judgment of acquittal at the
  conclusion of the State's case, forwarding a similar but distinct argument. 
  Instead of contending that the language of the warning was unclear as a
  matter of law, defendant argued that the warning was unclear under the
  particular facts and circumstances of this case, and that, because the
  warning was unclear, the State had failed to prove a necessary element of
  the offense: that the officer's request for a breath test was reasonable. 
  The trial court rejected this argument from the bench, emphasizing that
  this issue required a factual inquiry and determining that, because the
  State had presented evidence from which a reasonable jury could conclude
  the officer's request was reasonable, a judgment of acquittal was not
  warranted.
   
       ¶  5.  Next, the defendant presented his case, during which he put
  on extensive expert testimony by a professor of linguistics.  Applying a
  variety of analytical methods, the expert opined that the standardized
  warning, which is lengthy and contains multiple subordinate clauses, was so
  complex that it could not be readily understood when read aloud.  Defendant
  then renewed his motion for acquittal at the close of the defense case,
  arguing that the expert testimony demonstrated that the standardized
  warning was so unclear that the officer's request for a breath test could
  not be found reasonable.  The court again deferred to the jury,
  acknowledging that the expert testimony was strong, but concluding the
  finder of fact was not obligated to accept the expert's conclusions.


       ¶  6.  Defendant requested a jury instruction requiring the State to
  prove "[t]hat the law enforcement officer clearly warned [defendant] of his
  rights and the consequences of refusing the test," including that the
  suspect "will be charged with the crime of criminal refusal if he refuses
  the test and has a prior DUI conviction."  Out of what appears to have been
  an abundance of caution, the trial court did instruct the jury that the
  officer's request for a breath test was reasonable if: (1) the officer had
  a reasonable suspicion that defendant was driving under the influence; and
  (2) the warning read by the officer prior to requesting the breath test
  would advise a person of ordinary intelligence of the consequences of
  refusing the test.  The jury returned a verdict of guilty.

                                     II.

       ¶  7.  Defendant presents two alternative arguments on appeal.  First,
  defendant argues that the language of the standardized warning is so
  unclear that it violates due process as a matter of law.  Second, he argues
  that because the standardized warning is unclear, the State failed to prove
  that the officer made a "reasonable request under the circumstances," as
  required by the statute.  23 V.S.A. § 1201(b).  We reject both contentions.
   
                                     A.

       ¶  8.  Defendant raised his due process argument in the motion to
  suppress evidence of his refusal.  On appeal from the denial of a motion to
  suppress, we review the legal conclusions of the trial court de novo.  See
  State v. Rheaume, 2005 VT 106, ¶ 6, 16 Vt. L. Wk. 278, 889 A.2d 711.  In
  arguing that the language of the standardized warning cannot be readily
  understood by a person of ordinary intelligence, defendant appears to
  challenge the warning under the void-for-vagueness doctrine.  That doctrine
  requires as a matter of due process that criminal statutes be sufficiently
  clear to place a person of ordinary intelligence on notice as to the
  conduct prohibited by the statute.  See State v. Galusha, 164 Vt. 91, 94,
  665 A.2d 595, 597 (1995).  Defendant, the State, and the trial court alike
  seemed to agree that this standard applies to judge the clarity of the
  standardized warning.  Neither the parties' briefs nor the trial court's
  pronouncements indicate how it was determined that the void-for-vagueness
  framework was appropriate.

       ¶  9.  We do not find support for the proposition that the
  void-for-vagueness doctrine applies to the standardized warning read to DUI
  suspects.  It is the statute, not the warning, that establishes the
  elements of the offense, and it is the statute that must fairly advise
  suspects of the prohibited conduct.  The right to a warning before deciding
  whether to submit to a breath test is purely a creature of statute, State
  v. Nemkovich, 168 Vt. 8, 12, 712 A.2d 899, 901 (1998), and is not
  constitutionally mandated.  The only requirement of the warning is that it
  fairly convey the information required by 23 V.S.A. § 1202(d) (listing
  information that must be provided to DUI suspect).  See also State v.
  Lynaugh, 158 Vt. 72, 76, 604 A.2d 785, 787 (1992)  (Johnson, J.,
  concurring) (concluding that defendant had no right to have breath test
  suppressed because he "was apprised of his rights under 23 V.S.A. §
  1202(d)").
   
       ¶  10.  It is helpful to note the origins of the statutory right to
  advisement under § 1202(d).  In Vermont, motorists who choose to drive on
  the state's highways impliedly consent to a breath test where it is
  suspected a driver may be under the influence of alcohol or drugs.  State
  v. Morale, 174 Vt. 213, 216-17, 811 A.2d 185, 188 (2002).  Accordingly,
  because a breath test is not compelled, neither Fifth Amendment rights
  against self-incrimination nor the necessity of a Miranda warning attach to
  a request for a breath test or to any response such a request might
  provoke.  Id. at 217-18, 811 A.2d  at 188-89.  There are, however, certain
  statutory rights that protect motorists suspected of driving under the
  influence, sometimes referred to as "implied consent rights."  Among these
  are the warnings listed in 23 V.S.A. § 1202(d), which are to be given by
  the arresting officer, including that refusal can be charged as a crime
  under certain circumstances.  Id., 174 Vt. at 219, 811 A.2d  at 189-90.
   
       ¶  11.  Because the right to advisement under 23 V.S.A. § 1202(d)
  goes above and beyond any due process requirement of statutory clarity (in
  that the majority of suspects receive no warning whatsoever before
  committing a crime, but are nonetheless held accountable to criminal
  sanctions prescribed in Vermont's statutes), all that is required to
  satisfy this right is that the warning convey the information listed in 23
  V.S.A. § 1202(d).  In other words, the only process due in regards to the
  warning is what the statute directs to be done.  We conclude that the
  standardized warning at issue here adequately conveys the information
  required by 23 V.S.A. § 1202(d).  Indeed, defendant conceded at oral
  argument that the standardized warning does not omit any critical element
  or information present in the statute.  Rather, defendant's argument is
  simply that the standardized warning is too confusing.  "Defendant received
  all the advice required by § 1202(d), and we decline to require more." 
  Lynaugh, 158 Vt. at 73, 604 A.2d  at 786; see also id. at 74, 604 A.2d  at
  785-86 (validating implied consent form read to suspects where its language
  was "almost identical" to the language of the corresponding provision in
  Section 1202(d)); Nemkovich, 168 Vt. at 13, 712 A.2d  at 902  (district
  court erred in suppressing results of breath test where evidence showed
  that state trooper read implied consent form to defendant and defendant
  indicated he understood those rights).  This is particularly true where, as
  here, a defendant confirms that he understands the warning.

       ¶  12.  Even if the void-for-vagueness standard did apply, we would
  find that the warning given was not unconstitutionally vague.  Here, while
  the language of the warning is labored, we cannot conclude that it is so
  unclear as to violate due process.  The first and third components of the
  warning are quite clear: "If you refuse to provide an evidentiary test, . .
  . you may be charged with the crime of criminal refusal."  Not only are
  these two phrases uncomplicated, they are unambiguous in warning that
  refusal to take a breath test may (under certain circumstances elaborated
  in the middle clauses of the paragraph) result in criminal liability.
   
       ¶  13.  Further, one of the relevant factors in a void-for-vagueness
  challenge is whether the defendant had an opportunity to seek
  clarification. (FN2)  "If reasonable inquiry . . . would make a person of
  ordinary intelligence aware of the nature of the prohibitions, the
  constitutional test is satisfied." State v. Giant of St. Albans, Inc., 128
  Vt. 539, 547, 268 A.2d 739, 744 (1970).  Here, after the warning and other
  advisements were read, defendant was asked whether he understood what had
  been read to him, and he answered that he did.  Defendant's expert conceded
  that the question, "Do you understand these rights?" was not complicated. 
  In addition, defendant was offered an opportunity to speak with an
  attorney, who could have addressed any questions defendant had about the
  statute, but defendant declined.  We have previously held that a criminal
  statute survives a void-for-vagueness challenge where the defendant
  declined an opportunity to seek clarification of the supposedly confusing
  language.  See Benning v. State, 161 Vt. 472, 484, 641 A.2d 757, 763 (1994)
  (explaining that Court is "very reluctant to strike down a safety regime on
  a vagueness rationale with no showing that affected parties on request
  cannot obtain guidance on how to comply").  We are equally reluctant in
  this case to void defendant's conviction for criminal refusal in light of
  his professed understanding of the warning and his refusal to seek the
  advice of counsel.

                                     B.

       ¶  14.  Alternatively, defendant contends that, due to the wording of
  the warning, the State failed to prove an essential element of the offense: 
  that the officer's request for a breath test was reasonable.  See 23 V.S.A.
  § 1201(b) (person previously convicted of a DUI shall not "refuse a law
  enforcement officer's reasonable request under the circumstances for an
  evidentiary test").  Defendant presented this argument in his motion for
  acquittal, which was renewed at various stages in the proceedings below. 
  We will affirm a trial court's denial of a motion for acquittal where,
  viewing the evidence in the light most favorable to the State, there is
  sufficient evidence to convince a reasonable trier of fact that all the
  elements of the crime have been proven beyond a reasonable doubt.  See
  State v. Wilcox, 160 Vt. 271, 275, 628 A.2d 924, 926 (1993).  Determination
  of the essential elements of an offense upon which the jury must be
  instructed is a matter of law and reviewed de novo.  State v. Longe, 170
  Vt. 35, 36, 743 A.2d 569, 570 (1999).
   
       ¶  15.  Because the due process standard discussed above does not
  apply to the warning, it is certainly not an element of the offense.  The
  clarity or lack of clarity in the warning has no bearing on whether the
  police officer's request for a breath test was reasonable.  Rather, that
  factor turns solely on whether the officer had reasonable grounds to
  believe the suspect was intoxicated while operating or attempting to
  operate a motor vehicle, such that DUI processing should be initiated.  See
  23 V.S.A. § 1202(a)(3) (under Vermont's implied consent statute, an
  evidentiary test "shall be required of a person when a law enforcement
  officer has reasonable grounds to believe that the person was operating,
  attempting to operate, or in actual physical control of a vehicle in
  violation of section 1201 of this title").  Here, the record shows-and
  defendant does not contest-that the police officer observed a number of
  clues suggesting intoxication, including the odor of intoxicants, beer cans
  in the vehicle, defendant's manner of driving, defendant's admission that
  he had been drinking, and defendant's inability to complete field sobriety
  exercises.  The jury could have easily found that it was reasonable for the
  police officer to request the breath test on this evidence.

       ¶  16.  In any event, the trial court here gave a generous version of
  the defendant's requested instruction, and the jury still concluded that
  the standard had been met.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  In his brief on appeal, defendant also argues that the trial court
  erred in refusing to instruct the jury on the defense of mistake. 
  Defendant did not respond, however, to the State's contention that
  defendant had waived this argument because there was no record of defendant
  objecting to the lack of an instruction after the jury was charged. 
  Further, defendant conceded at oral argument that the record did not
  reflect any objection to the jury charge, and that defendant did not
  attempt to reconstruct the record.  Therefore, any arguments based on the
  jury instructions in this case are waived.  See V.R.Cr.P. 30 (providing
  that no party may assign error to jury charge or failure to give jury
  charge without objecting after jury is instructed); State v. Bernier, 157
  Vt. 265, 266 n.*, 597 A.2d 789, 790 n.* (1991) (declining to address issue
  argued in brief but waived at oral argument).

FN2.  Unless First Amendment rights are involved, the question of whether a
  statute is unconstitutionally vague is "examined as applied to the
  defendant and the circumstances before the court."  State v. Dann, 167 Vt.
  119, 128, 702 A.2d 105, 111 (1997).