State v. Fuller

STATE_V_FULLER.94-441; 163 Vt 523; 660 A.2d 302

[Filed 14-Apr-1995]


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. 


                                 No. 94-441


State of Vermont                                  Supreme Court

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

Francis H. Fuller                                 January Term, 1995


M. Kathleen Manley, Acting J.

Robert L. Sand, Staff Attorney, Department of State's Attorneys, Montpelier,
for plaintiff- appellant 

Richard A. Axelrod of Axelrod & Adler, St. Johnsbury, for defendant-appellee



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


     DOOLEY, J.   The State appeals an order of the Caledonia District Court
suppressing the results of a breath test because defendant did not execute a
written waiver of his right pursuant to 23 V.S.A.  1202(c) to consult an
attorney prior to submitting to the test.  We reverse. 

     On December 31, 1993, a police officer stopped defendant at a sobriety
checkpoint in West Danville, Vermont after observing defendant operate his
vehicle erratically.   The officer decided to process defendant for driving
while under the influence of intoxicating liquor (DUI) after detecting the
smell of alcohol on his breath, and observing his slurred speech and
inability to perform field dexterity tests.  See 23 V.S.A.  1201.  The
officer placed defendant in custody and interrogated him.  Before doing so,
the officer notified defendant of his right to be represented by a lawyer and
the right to appointment of such a lawyer if defendant was a needy person. 
Thereafter, defendant signed a written waiver of these rights; this waiver is
not 

 

challenged here.  The waiver stated in part, "Knowing my rights, I agree
to waive them." Following the waiver of rights, the officer asked defendant a
series of questions, which defendant answered. 

     Following this questioning, the officer advised defendant of his rights
under Vermont's implied consent statute, 23 V.S.A.  1202, including
defendant's right to consult with an attorney prior to deciding whether to
submit to a breath test.  See id.  1202(c).  This was done by reading
statements from a form and checking a box each time the officer covered a
subject or received a response from defendant.  Defendant orally waived his
right to consult with an attorney.  The officer noted this waiver by checking
the appropriate box on the form.  After all the boxes were checked, defendant
signed the form.(FN1)  Thereafter, defendant took the breath test. 

     Defendant asked the court to suppress the breath test results during the
civil suspension hearing held pursuant to 23 V.S.A.  1205.  On August 10,
1994, the trial court ordered that the results be suppressed.  It reasoned
that the implied consent statute, when read in pari materia with 13 V.S.A.
 5234 and 5237 (provisions of the public defender act), required a
written waiver of a defendant's right to consult counsel as provided in the
implied consent law.  The court concluded that breath test results obtained
in the absence of such a waiver must be suppressed.  The State appealed. 

     The State's two principal arguments on appeal are that (1) a written
waiver of the right to counsel is not required if the right is conferred by a
statute other than the public defender act, and (2) even if a written waiver
is required, defendant executed a written waiver in this case. In the context
of this case, we agree with the first argument and do not reach the second
one. 

 

     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.  23 V.S.A.  1202 (c). 
Subsection (d) of  1202 requires that the officer inform the person of this
right at the time the officer requests the test.  A person who is asked to
take a breath test must also be informed of the right to consult with an
attorney at public expense. State v. Gracey, 140 Vt. 199, 200-01, 436 A.2d 741, 743 (1981).  In this case, the parties do not dispute that defendant was
adequately informed of his rights; they do disagree, however, about how
defendant may waive those rights. 

     Although it grants a right to counsel,  1202 contains little detail
about that right.  When we have been called upon to define the nature of the
right, we have often looked to the public defender act, specifically  5234
of that Act, reasoning that 23 V.S.A.  1202 and 13 V.S.A.  5234 should be
read in pari materia.(FN2)  See State v. Garvey, 157 Vt. 105, 106, 595 A.2d 267, 268 (1991); Gracey, 140 Vt. at 200-01, 436 A.2d  at 743; State v. Duff,
136 Vt. 537, 539-40, 394 A.2d 1145, 1146 (1978).  The critical decision in
this line is Duff, where we held that the person being processed for DUI must
be informed "of his right to consult with counsel before deciding whether to
submit to a chemical test."  Duff, 136 Vt. at 539, 394 A.2d  at 1146. Although
the implied consent law did not explicitly contain this requirement, we drew
it from the public defender act because only with such a requirement "can the
right to consult an 

 

attorney be adequately safeguarded."  Id. at 540, 394 A.2d  at 1146.  By
similar reasoning, we required in Gracey that the person being processed for
DUI be informed of the availability of counsel at public expense.  Gracey,
140 Vt. at 200-01, 436 A.2d  at 743. 

     Before we examine the application of this analysis to this case, two
background points are important.  First, the rights contained in the public
defender act are not directly applicable to the right in the implied consent
law to consult counsel before deciding whether to take a blood-alcohol test. 
The public defender act implements the general right to counsel provided by
the Sixth Amendment to the United States Constitution as well as Article 10
of Chapter I of the Vermont Constitution.  The right to consult with counsel
contained in the implied consent law is purely statutory, created by 23
V.S.A.  1202(c).  It is not constitutionally mandated because the decision
whether to take the breath test is not a critical stage of the prosecution.
See State v. Lombard, 146 Vt. 411, 414, 505 A.2d 1182, 1184 (1985).  Nor does
the right to the advice of counsel created in Miranda v. Arizona, 384 U.S. 436 (1966) apply because the evidence sought is physical rather than
testimonial.  See Veilleux v. Springer, 131 Vt. 33, 42, 300 A.2d 620, 626
(1973). 

     Because of their different purposes, the right to counsel in the public
defender act and the right to counsel in the implied consent law have
different triggers.  The former applies only when the defendant is "detained"
or charged and only with respect to "conditions in which a person having his
own counsel would be entitled to be so represented."  13 V.S.A.  5234(a).
The latter applies whenever a person is asked to take a blood-alcohol test
irrespective of whether the person is detained at the time. 

     The second background point is that in pari materia is a statutory
construction technique, and not a rule of law.  Thus, it is an "aid" to
construction, to be relied upon where appropriate, see State v. Desjardins,
144 Vt. 473, 475, 479 A.2d 160, 161 (1984); State v. Baldwin, 140 Vt. 501,
511, 438 A.2d 1135, 1140 (1981), but not where it leads to a result not
consistent with legislative intent.  See Finberg v. Murnane, 159 Vt. 431,
436, 623 A.2d 979, 982 (1992).  We 

 

must also remember that it is inappropriate "to expand a statute by
implication, that is, by reading into it something which is not there, unless
it is necessary in order to make it effective." State v. Jacobs, 144 Vt. 70,
75, 472 A.2d 1247, 1250 (1984) (emphasis in original). 

     The trial court's analysis relies on in pari materia to apply to DUI
processing not only the basic requirements of the public defender act as
contained in 13 V.S.A.  5234, but also its special waiver provision
contained in  5237.  That statute provides: 

        A person who has been appropriately informed under section
     5234 of the title may waive in writing, or by other record, any
     right provided by this chapter, if the court, at the time or after
     waiver, finds of record that he has acted with full awareness of his
     rights and of the consequences of a waiver and if the waiver is
     otherwise according to law.

13 V.S.A.  5237.   We construed  5237 in State v. Caron, 155 Vt. 492, 586 A.2d 1127 (1990), where we held that a waiver of the right to counsel under
Miranda must be in a writing created by the defendant's own actions.  Id. at
511, 586 A.2d  at 1138.  While recognizing that the Federal Constitution does
not require a written waiver, we concluded that the Vermont Legislature,
through  5237, does.  Id. at 510-11, 586 A.2d  at 1138.  Any evidence
obtained in violation of  5237 must be suppressed.  State v. Pellerin, 161
Vt. 229, 232, 637 A.2d 1078, 1080 (1993). 

     We agree with the trial court that if the right to counsel provision of
the implied consent law is held to be in pari materia with the waiver
provision of the public defender act, and the defendant failed to execute a
written waiver of his right to counsel in the implied consent law, the breath
test results must be suppressed.  We disagree that we should hold these
statutory provisions to be in pari materia, and, therefore, conclude that the
written waiver requirement of 13 V.S.A.  5237 is inapplicable to the waiver
of the right to consult counsel prior to deciding whether to take a
blood-alcohol test.  Three reasons underlie our decision. 

     First, the waiver statute states specifically that it relates only to
persons informed of the right to counsel under  5234 and the waiver of
rights created in the public defender act.  Thus, 

 

by its terms, the statute does not apply to rights created by the implied
consent law and advice given under that law.  Where the statutory intent is
clear from the wording of the statute, it is inappropriate for us to use a
secondary construction technique to evade the specific limits contained in
the statute. 

     Second, a written waiver rule is not necessary to implement or
"safeguard" the right to counsel.  We have held that oral waivers of the
right to counsel are effective under Miranda. See Caron, 155 Vt. at 508, 586 A.2d  at 1136; State v. Breznick, 134 Vt. 261, 265, 356 A.2d 540, 542 (1976). 
If a constitutional right to counsel can be waived orally, it stretches our
view of necessity to hold that a statutory right to counsel cannot be so
waived.  In the absence of necessity, we cannot look outside the implied
consent law to define its scope and requirements. 

     Third, in this case defendant executed a written waiver to fully satisfy
the requirement of the public defender act.  He was told he had a right "to
talk to a lawyer before questioning" and specifically, and in writing, waived
that right.  Requiring a written waiver a second time around to respond to a
question of whether defendant will take the breath test is overly
formalistic, even ritualistic. 

     Reversed and remanded.


                              FOR THE COURT

                              _________________________
                              Associate Justice

-----------------------------------------------------------------------------
                               Footnotes




FN1.  As the dissent acknowledges, this fact is not consequential to the
decision.  The DWI Processing Form, which is in the record, shows a signature
of defendant's name on the line marked "Driver's Signature."  The signature
appears to be the same as that made by defendant to waive Miranda rights. 
The trial court made no finding whether this second signature was that of
defendant because this fact is also not consequential to the trial court
decision.  Nor do I read the dissent as stating this fact affects its
position. 

FN2.  13 V.S.A.  5234 provides in pertinent part:

(a) If a person who is being detained by a law enforcement officer without
charge or judicial process, . . . is not represented by an attorney under
conditions in which a person having his own counsel would be entitled to be
so represented, the law enforcement officer, . . . shall: 

(1) Clearly inform him of the right of a person to be represented by an
attorney and of a needy person to be represented at public expense; and 

(2) If the person detained or charged does not have an attorney and does not
knowingly, voluntarily and intelligently waive his right to have an attorney
when detained or charged, notify the appropriate public defender that he is
not so represented.  This shall be done upon commencement of detention. 



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

 

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. 


                                 No. 94-441


State of Vermont                                  Supreme Court

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

Francis H. Fuller                                 January Term, 1995



M. Kathleen Manley, Acting J.

Robert L. Sand, Staff Attorney, Department of State's Attorneys, Montpelier,
for plaintiff- appellant 

Richard A. Axelrod of Axelrod & Adler, St. Johnsbury, for defendant-appellee


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


     GIBSON, J. dissenting.  Today, the Court reaches its preferred result by
ignoring precedent and creating false distinctions between two statutes that
speak to the right to counsel. Accordingly, I respectfully dissent. 

     I begin by pointing out a factual error and an analytical flaw in the
majority opinion. First, the majority states that defendant signed the
implied-consent form after waiving his rights under 23 V.S.A.  1202 and
before taking the breath test.  The trial court's findings do not support
this statement.  The court found that defendant did not execute a written
waiver of his implied-consent right to counsel prior to taking the test. 
That finding is unsurprising given the State's failure to offer evidence that
defendant signed the implied-consent form.  Indeed, at oral argument, defense
counsel reiterated that defendant would not concede that he had signed the
form.  The result reached herein makes this fact inconsequential. 
Nevertheless, the majority's misstatement serves as a tacit make-weight for
its insupportable result. 

 

     Secondly, in its analysis, the majority asserts that the right to
counsel in the public defender act has a different purpose from the right to
counsel in the implied-consent law.  As justification, the opinion points out
that the public defender act implements the Sixth Amendment and Article 10
rights to counsel,(FN1) whereas the right to counsel under  1202 is
legislatively conferred and has no constitutional counterpart.  Thus, rather
than citing purpose, as it purports to do, the majority refers instead to the
underlying origin of each right to counsel.  This analytical flaw of
referring to the source of the right as its "purpose" permits the majority to
ignore the essential purpose of the right to counsel, whether it be
constitutionally or statutorily conferred.  That purpose, of course, is to
ensure that a person is adequately informed of the legal ramifications of a
decision he or she is about to make.  See State v. Hunt, 150 Vt. 483, 498,
555 A.2d 369, 378 (1988) (lawyer trained to provide legal assistance
necessary to protect person's Fifth Amendment rights); State v. Lombard, 146
Vt. 411, 415, 505 A.2d 1182, 1184 (1985) (Legislature concerned that any
decision to take breath test not be lightly decided, and therefore, provided
for consultation with counsel prior to making of decision).  Nowhere does the
majority come to grips with this reality. 

     Recognizing the similar policies underlying the public defender act and
the implied- consent right to counsel, we have stated: 

     The taking of a chemical test involves . . . the making of a
     decision which may have ramifications in possible future criminal
     and civil proceedings.  The results of the test, if taken and
     properly administered, are admissible into evidence in any
     resulting criminal prosecution.  On the other hand, a refusal to
     take the test is also admissible into evidence in a criminal trial.
     Upon conviction, the defendant may be subject to a fine,
     imprisonment, or both. . . .

     . . .[W]e find the statutory policy, as embodied in 13 V.S.A. 

 

     5234 and 23 V.S.A.  1202(b), to require law enforcement
     officers to assist in [the] implementation [of the  1202 right to
     counsel].  Only so read can the right to consult an attorney be
     adequately safeguarded.

     When a driver makes a complicated decision, without the option
     of consulting counsel as is his statutory right, he should not be
     bound by that decision, since he might with counsel have made it
     differently.

State v. Duff, 136 Vt. 537, 539-40, 394 A.2d 1145, 1146 (1978) (citations
omitted).  Indeed, we have treated the  1202 right to counsel as a valuable
right that means the right to a "meaningful consultation with counsel." 
State v. West, 151 Vt. 140, 144, 557 A.2d 873, 876 (1988) (emphasis added). 
In fact, this Court has deemed the  1202 right to be so valuable that,
unless it is waived, a person who has not had an opportunity to consult with
counsel may not have his driver's license suspended for refusal to submit to
a blood-alcohol test.  State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268
(1991). 

     The majority goes on to say that due to their "different purposes," the
public defender act and the implied-consent right to counsel "have different
triggers."  The public defender act is triggered by detention under
conditions in which a person with private counsel would be entitled to
representation.  13 V.S.A.  3254(a).  The implied-consent right, according
to the majority, "applies whenever a person is asked to take a blood-alcohol
test irrespective of whether the person is detained at the time."  (Emphasis
added.)  By identifying the trigger for the  1202 right to counsel in this
manner, the majority asks us to believe that there can be situations where a
person asked to take a breath test is not being detained.  That suggestion
has little, if any, support in actuality.  As we noted in Duff, "the taking
of a chemical test involves detention of the person by a law enforcement
officer."  136 Vt. at 539, 394 A.2d  at 1146.  Cf. State v. Hamm, 157 Vt. 666,
667, 599 A.2d 1048, 1048 (1991) (mem.) (defendant refused to submit to breath
test after being arrested and informed of his  1202 rights); Garvey, 157
Vt. at 105-06, 595 A.2d  at 267 (defendant was asked to take blood-alcohol
test while being processed for DUI at police station); West, 151 Vt. at 141,
557 A.2d  at 874 (after automobile accident, defendant 

 

was arrested, processed for DUI and asked to take breath test); State v.
Gracey, 140 Vt. 199, 200, 436 A.2d 741, 742 (1981) (defendant arrested and
taken to police station where she was asked to take breath test); Duff, 136
Vt. at 538, 394 A.2d  at 1145 (defendant stopped by police after being
observed driving car erratically, and asked to submit to breath test).  The
distinction the majority draws between the triggers of the public defender
act and the implied-consent right to counsel simply does not exist. 

     I now turn to the three rationales underlying the majority decision,
which, in inverse order, are: (1) defendant's written waiver of his Miranda
rights satisfied the public defender act, and any additional written waiver
would be "overly formalistic, even ritualistic"; (2) because constitutional
rights to counsel may be waived orally, necessity does not require any
additional protection for a statutory right to counsel; and (3) by its terms,
 5237 applies only to rights conferred under the public defender act. 

     Under the first rationale, the majority implies that a defendant may
validly waive his right to counsel without being informed of that right.(FN2)
 In this case, defendant was informed of his Miranda rights, and he executed
a written waiver of those rights.  After answering the officer's questions,
defendant was then informed that he would be asked to take a breath test and
that he had the right to speak with an attorney prior to making a decision
about taking it.  How defendant's written waiver of his right to consult an
attorney before answering questions makes "formalistic" a subsequent written
waiver of a different and previously unmentioned right is not explained.  The
fault for such "formalism" lies not with reading  1202 and  5237 in pari
materia, as I believe must be done, but, rather, with the way defendant was
informed of his rights and how and when he was asked to waive them.  The
"formalistic" result the majority wishes to avoid is easily cured by a slight
change in the DUI procedure used by law enforcement 

 

officers.  Instead, the majority reduces to second-class status the
importance of the right to counsel under  1202 and the justification for
requiring a written waiver of that right.  The majority also disregards that
we have recognized that the  1202 right to counsel is important enough to
require a warning separate from the Miranda right to counsel.  See Gracey,
140 Vt. at 201-02, 436 A.2d  at 743 (warning that defendant could consult
attorney at public expense before and during questioning held inadequate to
inform defendant of right to consult attorney at public expense before
deciding to take breath test). 

     The second rationale given by the majority is that a written waiver is
not necessary "to implement or `safeguard' the right to counsel."  For
support, the majority points to State v. Caron, 155 Vt. 492, 508, 586 A.2d 1127, 1136 (1990) and State v. Breznick, 134 Vt. 261, 265, 356 A.2d 540, 542
(1976), wherein oral waivers of the constitutional right to counsel were
upheld.  In its attempt to reach the result desired herein, the majority
overlooks our discussion of these cases in State v. Pellerin.  There, we
noted that (1) no  5237 claim was raised in Breznick, (2) Caron cited
Breznick to show that our prior law did not require a written waiver of the
right to counsel, and (3) "[o]nce a construction of  5237 is at issue, the
requirement of a written waiver is clear."  Pellerin, 161 Vt. at 232, 637 A.2d  at 1080.  The written waiver requirement does indeed "safeguard" the
right to counsel.  As we recognized in Caron, a written waiver ensures that a
defendant's failure to request counsel is not construed as a waiver, and it
provides evidence of the waiver.  155 Vt. at 511, 586 A.2d  at 1138. 

     The final rationale used to support the result herein is the language of
 5237, which the majority believes limits the written waiver requirement to
rights arising under the public defender act.(FN3)  If we were construing 
5237 only, the majority's analysis might be persuasive. This case, however,
concerns the right to counsel under  1202 and how that right may be 

 

waived. Section 1202 does not contain a waiver requirement, but if that
statute is read in pari materia with the public defender act, including 
5237, the failure to obtain a written waiver of the  1202 right to counsel
would require suppression of the breath test.  The majority opinion
acknowledges this fact. 

     This Court has recently explained when it would read statutes together
in pari materia. In Board of Trustees of Kellogg Hubbard Library, Inc. v.
Labor Relations Bd., ___ Vt. ___, ___, 649 A.2d 784, 786 (1994), the Court
said, "Statutes are considered to be in pari materia when they deal with the
same subject matter or have the same objective or purpose."  Thus, we examine
the purposes of the statutes to determine if they are closely enough related
to be read together.  Here, the purpose of the public defender act is to
implement the right to counsel, whether arising by statute or constitution. 
That act, through  5237, requires a written waiver to safeguard that
important right.  Because  1202(c) and 5237 relate to the same subject
matter and have the same purpose, they should be "construed with reference to
each other as parts of one system."  In re Preseault, 130 Vt. 343, 346, 292 A.2d 832, 834 (1972). 

     Significantly, we have already read  5234 of the public defender act
and  1202 in pari materia to carry out the intent of the Legislature.  See,
e.g., Garvey, 157 Vt. at 107, 595 A.2d  at 268; Gracey, 140 Vt. 200-01, 436 A.2d  at 743; Duff, 136 Vt. at 539-40, 394 A.2d  at 1146. There is no reason to
depart from that standard here where  1202 is silent with respect to
waiver.  I therefore dissent. 

     I am authorized to say that Justice Johnson joins in this dissent.


                                    ____________________________
                                    Associate Justice



-----------------------------------------------------------------------------
                             Footnotes

FN1.  The majority either has overlooked the Fifth Amendment right to counsel
under Miranda or does not believe that the public defender act implements
that right as well.  We have previously recognized, however, that 13 V.S.A.
 5234 and 5237 both apply to a defendant's Fifth Amendment right to
counsel.  See State v. Pellerin, 161 Vt. 229, 232, 637 A.2d 1078, 1080
(1993). 

FN2.  The majority refers to the second waiver as a waiver regarding the
decision to take the breath test.  That is not, however, the implied-consent
right at issue in this case.  Rather, the issue is whether defendant is
required to waive in writing his  1202 right to counsel. 

FN3.  If the majority is serious that  5237 applies to rights arising under
the public defender act only, then one could read today's decision to mean
that DUI suspects must execute a written waiver of their right to consult an
attorney at state expense because that right arises under the public defender
act.  See State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991).