State v. George

ENTRY_ORDER.92-659; 161 Vt. 615; 640 A.2d 26

[Filed 13-Jan-1994]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-659

                            SEPTEMBER TERM, 1993


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 1, Rutland Circuit
                                   }
 Alan Barry George                 }
                                   }          DOCKET NO. 157-7-92Rcs


              In the above entitled cause the Clerk will enter:

      Defendant seeks reversal of an order suspending his license, arguing
 that the district court erred in concluding that he had refused to submit to
 an evidentiary test.  We affirm.

      Section 1202(c) of Title 23 provides as follows:

             A person who is requested by a law enforcement officer
           to submit to an evidentiary test has the right to
           consult an attorney before deciding whether or not to
           submit to such a test.  The person must decide whether
           or not to submit to the evidentiary test within a
           reasonable time, but no later than 30 minutes from the
           time of the initial attempt to contact the attorney.

 The statutory thirty-minute time period "is the maximum reasonable time, not
 the minimum."  Stockwell v. District Court, 143 Vt. 45, 50, 460 A.2d 466,
 468 (1983).  "The statutory reasonable time is tolled either by the
 expiration of the thirty minutes or by a reasonably clear refusal to submit
 to the test, whichever occurs first in time."  Id. at 49-50, 460 A.2d  at
 468.  Absent an affirmative statement of refusal, "a refusal may be implied
 from the totality of the surrounding facts and circumstances."  Id. at 50,
 460 A.2d  at 468; see also Gilman v. Commissioner of Motor Vehicles, 155 Vt.
 251, 252, 583 A.2d 86, 86 (1990) (refusal may be implied if person's conduct
 "would lead a reasonable person in the trooper's position to believe that
 the person understood he was requested to submit to a breath test and
 manifested an unwillingness to do so").  But a refusal will not be found if
 defendant has not "been afforded a meaningful opportunity to consult with
 counsel."  Pfeil v. Rutland District Court, 147 Vt. 305, 310, 515 A.2d 1052,
 1056 (1986).  If defendant's counsel of choice is unavailable, we have held
 that a request for submission to a DUI test requires notification of a
 public defender "unless waived by the suspect . . . before a decision about

 

 taking the test is required."  State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991).

      Here, defendant, who is an attorney himself, stated that he wanted to
 speak to attorney Susan Morale before deciding whether to submit to the
 test.  The officer attempted to reach Ms. Morale four times between 11:14
 p.m. and 11:20 p.m., but each time the line was busy.  At that point, the
 officer began calling public defenders.  Although the first public defender
 on the list was not available, the officer spoke to her husband, who,
 unbeknownst to the officer, was defendant's law partner.  After the officer
 hung up, defendant indicated that he would speak to the public defender's
 husband, whom he identified as his law partner.  The officer, however,
 proceeded to call the next public defender on the list, and when the officer
 reached that public defender, the officer handed the telephone to defendant.
 Defendant testified that the public defender did not give him any advice,
 and that he merely asked the defender to call Ms. Morale.  Again, defendant
 refused to submit to a test without talking to Ms. Morale.  The officer
 attempted to reach Ms. Morale one more time at 11:35 p.m., but the line was
 still busy.  At 11:36 p.m, twenty-two minutes after the officer first
 attempted to obtain counsel for defendant, the officer made a final request
 that defendant submit to a test.  When defendant refused to do so without
 first speaking to Ms. Morale, the officer recorded a refusal.

      The trial court found that defendant had been given the opportunity to
 speak to counsel and a reasonable amount of time to decide whether to take
 the test, and that a refusal could be implied from the totality of the
 circumstances.  Defendant, however, argues that 23 V.S.A. { 1202(c) does not
 protect defendant's right to speak to any attorney within the statutory
 thirty-minute period, but rather protects defendant's right to speak to his
 attorney of choice within that period, and that even if, as here, defendant
 is given the opportunity to speak with a public defender before thirty
 minutes have elapsed, defendant must nonetheless be allowed any time
 remaining of the full thirty minutes to attempt to contact his attorney of
 choice.  We conclude that the lower court's finding of a refusal, based on
 the totality of the circumstances, is not clearly erroneous.  See Fontaine
 v. District Court, 150 Vt. 28, 30, 547 A.2d 1362, 1363 (1988) (applying
 clearly erroneous standard for reviewing trial court's finding of refusal
 based on totality of surrounding facts and circumstances).

      The legislature in 23 V.S.A. { 1202(c) gave a motorist in defendant's
 position "the right to consult an attorney prior to deciding whether or not
 to submit to such a test."  23 V.S.A. { 1202(c) (emphasis added).  Under
 this statute, defendant must be "afforded a meaningful opportunity to
 consult with counsel."  Pfeil, 147 Vt. at 310, 515 A.2d  at 1055-56 (1986);
 see also Gilman, 155 Vt. at 255, 583 A.2d  at 88 (1990) (Dooley, J.,
 dissenting) ("lack of a meaningful opportunity to consult with counsel means
 that the court can not find a voluntary refusal").  In the instant action,
 defendant was provided with an attorney, as required by the statute, and had
 a "meaningful opportunity" to consult with that attorney; this fact is not
 negated by defendant's refusal to take advantage of that opportunity.
 Further, the officer made a good faith effort to provide defendant with his
 attorney of choice.  After four unsuccessful attempts to reach the attorney

 

 of choice, the officer reasonably concluded that she was unavailable and
 that defendant should speak with a public defender before the statutory
 thirty-minute period had elapsed.  The officer's actions comported fully
 with our decision in State v. Garvey, in which we held that a defendant
 whose attorney is unavailable should be afforded an opportunity to speak
 with a public defender "before a decision about taking the [blood alcohol]
 test is required."  Garvey, 157 Vt. at 107, 595 A.2d  at 268.

      The officer did not have to wait until the last possible minute to
 conclude that defendant had implicitly refused to submit to a test.  Once a
 suspect has spoken with the attorney, thirty minutes is the maximum amount
 of time the suspect can take before deciding whether to take the test, not
 the amount of time that the police must spend in attempting to reach the
 desired attorney.  After twenty-two minutes and five unsuccessful calls to
 Ms. Morale, the officer was justified in concluding that defendant was
 refusing to take the test, particularly in light of the fact that defendant
 had already been afforded an opportunity to consult with counsel.

      Affirmed.


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

      GIBSON, J., dissenting.  I respectfully dissent.  The Court holds that
 the state trooper was justified in concluding defendant had refused to take
 the test when defendant continued to insist on speaking to Ms. Morale, his
 attorney of choice, after twenty-two minutes and five calls that were
 unsuccessful because her line was busy.  The majority bases its holding
 partially on the fact that the trooper had contacted a public defender and
 then handed the telephone to defendant before reaching his conclusion.

      Certainly, as we have held, a defendant is entitled to consult with a
 public defender before deciding whether or not to take the test; indeed, we
 have said that even fourteen calls were not enough if abandoning efforts
 meant no consultation at all.  State v. Garvey, 157 Vt. 105, 106, 595 A.2d 267, 268 (1991).  Here, however, the majority holds that all that is
 required is an opportunity to consult with a public defender before thirty
 minutes has elapsed, even if the defendant asks for other counsel.  I cannot
 agree.

      There was no good reason to deny defendant his attorney of choice in
 this case.  There is no evidence of uncooperativeness by defendant, only his
 insistence on speaking with his own attorney, Ms. Morale.  Cf. Stockwell v.
 District Court, 143 Vt. 45, 48, 460 A.2d 466, 467 (1983) (officers properly
 concluded there was refusal when faced with defendant's "silence, meaning-
 less insults, and incoherencies").  The officer did not know that Ms. Morale
 was unavailable.  Her line was busy, but there was no reason to suppose the
 line would not clear within the next few minutes.  This is very  different
 from Gilman v. Commissioner of Motor Vehicles, 155 Vt. 251, 253, 583 A.2d 86, 87 (1990), where we held that the defendant's insistence on speaking
 with an attorney whom the officer and the defendant both knew was unavail-
 able was tantamount to a refusal.

 

      Defendant did not request a public defender, yet the officer continued
 to call from the public defender list even after defendant told him he would
 speak to his law partner, who was the husband of a public defender and had
 answered in response to one of the officer's calls.  When a defender was
 finally contacted, defendant did not seek advice, but asked only that the
 defender call Ms. Morale.  He thus never had any meaningful consultation
 with an attorney before the officer came to the unwarranted conclusion that
 there was a refusal.  Cf. Pfeil v. Rutland District Court, 147 Vt. 305, 310,
 515 A.2d 1052, 1056 (1986) ("Had defendant been afforded a meaningful oppor-
 tunity to consult with counsel, he may well have submitted to testing.").

      Although the police are not required in every case to allow a full
 thirty minutes in which to make a decision, see Stockwell, 143 Vt. at 48,
 460 A.2d  at 467 (refusal implied nineteen minutes after licensee spoke to
 counsel where licensee responded to officer's inquiries with silence or
 insults), the facts here do not demonstrate a refusal.  Defendant was within
 his rights to insist on an opportunity to speak to his attorney of choice
 while time still remained before he had to make a decision regarding the
 test.  See Garvey, 157 Vt. at 107, 595 A.2d  at 268 ("public defender shall
 be notified unless waived by the suspect or unless the suspect contacts an
 attorney of choice within thirty minutes, before a decision about taking the
 test is required").  I must therefore dissent.

      I am authorized to say that Justice Morse joins this dissent.




                                          BY THE COURT:


 Dissenting:                              ____________________________________
                                          Frederic W. Allen, Chief Justice

 _______________________________________  ____________________________________
 Ernest W. Gibson III, Associate Justice  John A. Dooley, Associate Justice

 _______________________________________  ____________________________________
 James L. Morse, Associate Justice        Denise R. Johnson, Associate Justice



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