State v. Hamm

        

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 91-031

                             APRIL TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Windham Circuit
                                  }
Howard Hamm                       }
                                  }          DOCKET NO. 129-12-90WmCS


             In the above entitled cause the Clerk will enter:

     Defendant was arrested for driving while under the influence of
intoxicating liquor (DUI) in violation of 23 V.S.A. { 1201(a)(2).  He
refused to submit to an evidentiary breath test, consent for which is
implied under 23 V.S.A. { 1202(a).  Defendant received a notice of sus-
pension of his operator's license under 23 V.S.A. { 1205(b), and then
requested a district court hearing to contest the suspension, pursuant to 23
V.S.A. { 1205(c)(1).  At the suspension hearing the district court found
that defendant had not prevailed on any of the issues raised under 23 V.S.A.
{ 1205(f), and forwarded its findings and report to the commissioner of
motor vehicles, as provided under 23 V.S.A. { 1205(g), who confirmed the
suspension.

     Defendant brings this appeal under 23 V.S.A. { 1205(i).  The sole issue
is whether a form used by the processing officer to record what he advised
defendant and defendant's responses was deficient.  The form did not indi-
cate that defendant was advised at the time he was asked to take the breath
test of his right to consult with an attorney at public expense before
making the decision.  He concedes the form did advise him of his right to
consult an attorney, as required under 23 V.S.A. { 1202(c) and (d)(4).

     We held in State v. Duff, 136 Vt. 537, 539, 394 A.2d 1145, 1146 (1978)
that 23 V.S.A. { 1202(b) must be read in pari materia with 13 V.S.A. { 5234
of the public defender statute.  And as we said in State v. Gracey, 140 Vt.
199, 201, 436 A.2d 741, 743 (1981), "[A] person asked to take a breath test
must be informed of his right to consult with an attorney before making a
decision" and must be "informed that a needy person may consult with an
attorney at public expense."  See also State v. Garvey, 2 Vt. L.W. 253, 254
(May 31, 1991) (notwithstanding defendant's financial status, public
defender must be notified, unless waived or another attorney contacted,
before defendant can be required to make a breath-test decision).

     But missing from defendant's claim at his district court hearing or in
his brief here is any assertion that the deficiency in the form had any
bearing on his refusal to take the test.  We assume the advice given defend-
ant was no more expansive than what is contained in the form.  However,
defendant never contended that lack of advice about a free consultation with
a lawyer was in any fashion connected with his refusal.  For all we know,
defendant's refusal could have been predicated upon reasons in no way
related to a lack of consultation with a lawyer.  The state has the burden
to prove a refusal, and that burden does not shift to defendant.  But
defendant had the burden of production on the issue of prejudice, that is,
he had to introduce some evidence that any deficiency in the advice he
received was prejudicial.  This he did not do.

    Affirmed.


     Allen, C.J., concurring.  I concur in the result only.


     Johnson, J., dissenting.  I respectfully dissent.  Previous decisions
of this Court have interpreted 23 V.S.A. { 1202(d) and 13 V.S.A. { 5234 as
placing an affirmative duty on the State to notify persons of their right to
consult with a public defender before deciding to take a breath test when
arrested on a suspicion of DUI.  State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981); State v. Duff, 136 Vt. 537, 539, 394 A.2d 1145, 1146
(1978); see State v. Garvey, 2 Vt. L.W. 253 (May 31, 1991).  Section
1205(f)(2) provides that issues in a subsequent civil suspension hearing
based on refusal to take a breath test include "whether at the time of the
request for the evidentiary test the officer informed the person of the
person's rights ... substantially as set out in subsection 1202(d)."  Here
defendant refused a lawyer and refused the test, but the State's affidavit
at the civil suspension hearing did not show that defendant was informed of
his right to consult a public defender before taking the test.  Defendant
moved to dismiss on the grounds that the State failed to show he was
informed of his rights.  The trial court refused to consider the issue as
beyond the scope of the hearing.  This was error and it should not be cured
by holding that the burden was on the defendant to prove that "lack of
advice about a free consultation with a lawyer was in any fashion connected
with his refusal."  Even if one were to adopt the majority's viewpoint that
defendant had the burden to prove such a connection, which I do not, the
trial court did not allow defendant any opportunity to make a showing.

     It is true that, on the present record, we are not able to determine
why defendant refused the test.  But asking the defendant to prove, after
the fact, that he would have made a different decision if the State had
informed him of all of his rights, simply invites a defendant to assert
self-serving justifications whose veracity cannot, as a practical matter, be
either confirmed or disproved.  We do know that defendant refused the test
knowing only half of his right to consult counsel.  If the right to consult
counsel at public expense before making a decision on a breath test is to be
meaningful at all, the defendant must be fully apprised of that right.
Because of the inherent difficulties of proving or disproving prejudice, the
only practical way of administering the statute and ensuring that a defend-
ant has an opportunity to exercise his rights, is to require the State to
prove, as part of its prima facie case, that defendant was substantially
informed of the rights this Court has determined to be essential.   Since
the State failed to show that defendant was so informed, his motion to
dismiss should have been granted.







                                   BY THE COURT:


Dissenting:
                                   Frederic W. Allen, Chief Justice

________________________________
Denise R. Johnson,                 Ernest W. Gibson III, Associate Justice
Associate Justice

                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice




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