State v. Lynaugh

Annotate this Case
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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                          Nos. 91-030 and 91-159


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Bernard J. Lynaugh                           Unit No. 3, Caledonia Circuit

                                             November Term, 1991


Dean B. Pineles, J.

Robert M. Butterfield, Caledonia County Deputy State's Attorney, St.
  Johnsbury, for plaintiff-appellant

Deborah T. Bucknam, St. Johnsbury, for defendant-appellee


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



     Morse, J.  Defendant was charged with driving under the influence (DUI)
and obtained suppression of his breath test in the criminal case and a dis-
missal of the civil suspension proceeding.  The trial court granted this
relief because it found that the police had misled defendant about his right
to counsel.  The State took an interlocutory appeal from the suppression
order and a direct appeal of the dismissal, both consolidated here.  We
reverse.
     The facts are undisputed.  During defendant's processing for DUI, an
officer read to him a so-called "implied consent" form which contained
information on the right to talk with a lawyer before agreeing or refusing
to take a breath test.  Defendant declined to consult an attorney, and
agreed to take the test which produced a result of .21 percent blood-alcohol
content (BAC).
     The implied consent form outlined the criminal and civil consequences
for submitting to the breath test when the  result reveals a BAC above the
legal limit: "If the results of this test indicate that you are under the
influence of alcohol or other drugs, you will be subject to Criminal Charges
and your license or privilege to operate will be suspended for at least 90
days."  This language is almost identical to the statute setting forth the
information that a processing officer is obligated to convey to a person
suspected of being under the influence.  23 V.S.A. {1202(d)(3).
     The first part of the sentence relates to criminal consequences, and
the second relates to the recently enacted civil suspension law, which
imposes a ninety-day license suspension following a determination that a
defendant had a .10 BAC or higher at the time of operation.  23 V.S.A. {
1205(a). (FN1) Before enactment of the civil suspension law, a license in a case
like this could be suspended only following a criminal conviction for DUI or
a judicial determination that the processing officer had reasonably
requested a test which the defendant refused.
     The implied consent form, however, did not fully describe the
procedural consequences when the operator submits to the breath test and the
results show impairment.  Section 1205(a) provides that the operator's
license shall be summarily suspended upon affidavit of the law enforcement
officer showing that there were reasonable grounds to believe the operator
was under the influence and the test result indicated a BAC of .10 at the
time of operation, unless the operator requests a hearing.  The form did not
contain this information.  Instead, it explained that when the suspect
refuses to submit to the test, the suspect is given the opportunity for a
hearing to determine if the officer's request was reasonable.  The trial
court reasoned that the absence of this information affected defendant's
decision to waive counsel.  The court stated:
One could logically, but incorrectly, infer that there
was no . . . court procedure [similar to the one for
refusing the test] when a sample is provided.  Indeed,
the wording of the form suggested that, when a sample is
provided, any license suspension would be the result
only of a criminal proceeding: "If the results of this
test indicate that you are under the influence . . .,
you will be subject to Criminal Charges and your license
or privilege to operate will be suspended for at least
90 days".

The court concluded that the State failed to prove that defendant had made a
knowing waiver of his right to consult counsel in deciding whether to take
the test.  The court, however, never concluded as a matter of fact that
defendant did not actually make a knowing waiver of his right to counsel.
     We hold that the form, as written, adequately apprised defendant of the
civil consequences of submitting to a breath test.  The absence of infor-
mation on the opportunity for a hearing does not alter the effect of the
information that defendant did receive.  He was told that he risked a
license suspension if the test result was adverse; he declined the
assistance of counsel, and took the test.  Defendant received all the
advice required by { 1202(d), and we decline to require more.
     We also conclude that defendant did not satisfy his burden of
demonstrating prejudice arising from the reading of the implied consent
form.  See State v. Hamm, 2 Vt. L.W. 427, 428 (1991) (DUI defendant has "the
burden of production on the issue of prejudice . . . [and must] introduce
some evidence that any deficiency in the advice . . . received was
prejudicial").  Defendant presented no evidence that he was prejudiced by
the receipt of incomplete information in making his decision to waive
assistance of counsel before taking the test.  In fact, in his motion to
suppress, defendant's counsel stated that a lawyer would have "likely
advised him to take a blood test in order to protect his rights."     
     We agree that the decision whether to take a breath test should "not be
lightly decided."  State v. Carmody, 140 Vt. 631, 636, 442 A.2d 1292, 1295
(1982).  The Legislature demonstrated its concern by providing for the right
to counsel and for time for reflection.  Id.; 23 V.S.A. { 1202(c).  Nothing
about this case, however, requires the officer to provide more complete
information about the civil suspension process.  In State v. West, 151 Vt.
140, 142, 557 A.2d 873, 875 (1988), we held that a DUI defendant's receipt
of erroneous information was not a defense because the defendant's consul-
tation with an attorney corrected the error.  Our conclusion that there was
no prejudice did not turn on the presence of the attorney, but on the
absence of prejudice to the defendant.  Because the defendant made no claim
to having relied on the erroneous information, we were "unable to find that
[he] suffered prejudice as a result of the officer's mistake."  Id.  The
absence of prejudice in this case -- in fact rather than theory -- requires
the same result.
     Not only do we fail to see prejudice in fact in this case, we also fail
to see a theoretical possibility of prejudice.  In addition to the
information about consequences for taking the test, defendant was told that
if he refused to take the test, he faced potentially unpleasant
repercussions:
  If you refuse to give a sample as evidence, the court
will have a hearing to decide if my request is reason-
able if you so request.  If my request is found to be
reasonable, your license, or privilege to drive shall be
suspended for at least six months, depending on the
number of previous convictions for DWI and/or refusals
of this test.  Your refusal may be introduced as
evidence in a criminal proceeding.

Weighing the consequences for taking the test against those for refusing it,
we do not see how defendant's decision would have been substantially altered
such that prejudice would result.  Defendant's BAC was over .10.  A suspen-
sion of at least 90 days would follow whether defendant took the test or
not, and the civil suspension would be credited toward any suspension
imposed for a DUI conviction.  See 23 V.S.A. { 1205(c).  We therefore
conclude that any connection between the form's failure to mention the
procedural consequences and defendant's submission to the breath test is
tenuous at best.
     To require more detail in informing suspects of the details of the DUI
law would be overly burdensome not only for the law enforcement officer pro-
cessing the suspect, but for the suspect as well.  The implied consent form
contains fifteen paragraphs beginning with a short sentence identifying the
reader of the form and ending with a question about taking the test.  In
between are paragraphs explaining why the person is suspected of DUI, what
the law authorizes the officer to do, the rights of the person with regard
to an independent analysis or blood test, the consequences of taking or
refusing a breath test, the right to a refusal hearing, the right to
counsel, and a thirty-minute think-it-over period before the final test
request is made.  All of this information is required by statute.  23 V.S.A.
{ 1202(d).
     Of course, a great deal of other information could be conveyed to the
suspect, such as, the criminal penalties for DUI, the sanctions for DUI or a
refusal to take a test depending on the number of infractions, what BAC and
impairment means, and statutory presumptions and permissible inferences.  A
failure to impart all possible information, however, does not justify
suppression or dismissal.  See State v. Lucarelli, 157 Wis. 2d 724, 729, 460 N.W.2d 439, 441 (1990) (warning given to motorist, pursuant to implied
consent law, that he would be "subject to penalties," was adequate because
police were not statutorily required to warn of specific penalties flowing
from driving while intoxicated conviction). (FN2)
     Reversed and remanded.



                                        FOR THE COURT:


                                        ___________________________________
                                        Associate Justice




FN1.   The effective date of the version of 23 V.S.A. { 1205 that applies
to this case was December 1, 1989.  A 1991 amendment substituted "alcohol
concentration of 0.08" for "BAC of .10."  The applicable provision relating
to the civil suspension reads as follows:
          Upon affidavit of a law enforcement officer that the
          officer had reasonable grounds to believe that the
          person was operating, attempting to operate, or in
          actual physical control of a vehicle . . . and that the
          person submitted to a test and the test results
          indicated that there was 0.10 percent or more by weight
          of alcohol in the blood at the time of operating . . .
          the commissioner shall, unless the person requests a
          hearing , suspend the person's operating license . . .
          for a period of 90 days . . . .

FN2.  Defendant has raised a number of constitutional challenges to the
civil suspension law which are inadequately briefed and, therefore, not
considered.

-----------------------------------------------------------------------------
                                  Concurring

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                          Nos. 91-030 and 91-159


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Bernard J. Lynaugh                           Unit No. 3, Caledonia Circuit

                                            November Term, 1991


Dean B. Pineles, J.

Robert M. Butterfield, Caledonia County Deputy State's Attorney, St.
  Johnsbury, for plaintiff-appellant

Deborah T. Bucknam, St. Johnsbury, for defendant-appellee


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



     JOHNSON, J., concurring.   I concur in the result because defendant was
apprised of his rights under 23 V.S.A. { 1202(d).





                                        FOR THE COURT:


                                        ___________________________________
                                        Associate Justice