State v. Benware

State v. Benware  (96-016); 165 Vt 631; 686 A.2d 478

[Opinion Filed 14-Oct-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 96-016

                            SEPTEMBER TERM, 1996

State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 1, Windham Circuit
Robert E. Benware, Jr.               }
                                     }     DOCKET NO. 72-7-95 Wmcs

       In the above-entitled cause, the Clerk will enter:

       Defendant appeals from a judgment of the Windham District Court that
  he unreasonably refused to submit to a blood-alcohol test.  We affirm.

       Defendant was pulled over for a broken taillight by a Bellows Falls
  police officer.  The officer smelled alcohol on defendant's breath and
  administered a preliminary screening test.  The test indicated a
  blood-alcohol level of 0.201, an amount in excess of the statutory
  prohibition of 0.08 or more.  23 V.S.A. § 1201.  Defendant was arrested for
  driving under the influence and taken to the police station for DUI
  processing.  Defendant was advised of his rights and offered counsel.  The
  trial court found that "during the reading of his Miranda rights, defendant
  stated this will be a refusal of the test."  He then spoke to a public
  defender.  The police officer testified that he wanted to give defendant
  every opportunity to take the test, so despite defendant's statement, he
  prepared the crimper device which was used to measure defendant's
  blood-alcohol level.  For a test to be accurate, defendant cannot belch,
  burp or vomit for fifteen minutes.  During this time, the officer must
  continuously observe defendant to ensure that he does not do any of these
  things.  During continuous observation by the officer, defendant forced
  numerous burps while repeatedly making obnoxious comments and gestures to
  him.  Each of these forced burps caused the officer to begin the
  fifteen-minute observation period again.  After five attempts to administer
  the test over a period of forty-one minutes, the officer stated that he was
  considering defendant's behavior a refusal of the test.  Defendant
  thereupon told the officer that he would take the test, but the officer
  terminated the procedure.

       Based on the foregoing evidence, the trial court found that defendant
  had refused to consent to the blood test.  "This Court . . . concludes that
  a reasonable person in the officer's position could conclude that the
  [d]efendant manifested an unwillingness to take the test."

       The applicable statute provides a defendant with a reasonable amount
  of time to decide whether to submit to the breath test, but no longer than
  thirty minutes after the first attempt to contact an attorney.  23 V.S.A. §
  1202(c).  A refusal to submit to testing may be inferred from the suspect's
  behavior.  As we have explained:

    [I]t is not necessary as a matter of law that a refusal to submit to
    testing by a DUI suspect can be evidenced only by an express, affirmative
    statement of refusal.  In the absence of such a statement, a refusal may be
    implied from the totality of the surrounding facts and circumstances.

  Stockwell v. District Court, 143 Vt. 45, 50, 460 A.2d 466, 468 (1983). 
  Thus, if a reasonable person in the officer's position could believe that
  the driver understood that he had been asked to take a test and
  nevertheless behaved in a way that demonstrated he was unwilling to submit,
  a refusal may be recorded by the officer.  Id.  These principles have been
  reiterated in recent cases.  See, e.g., Gilman v. Commissioner of Motor
  Vehicles, 155 Vt. 251, 252, 583 A.2d 86,

 

  86 (1990); Fontaine v. District Court, 150 Vt. 28, 30, 547 A.2d 1362, 1363
  (1988).

       Here, defendant deliberated beyond the thirty-minute statutory time
  limit imposed by 23 V.S.A. § 1202(c).  Furthermore, defendant concedes that
  his behavior justified the officer's inference that he was refusing the
  test.  He argues, however, that the issue on appeal is whether his refusal
  was "cured" by subsequent consent.  See State v. Lynaugh, 148 Vt. 124, 127,
  530 A.2d 555, 558 (1987) ("[T]his case does not raise the issue of how
  processing officers ought to respond to good faith and timely changes of
  mind.").  We need not, however, decide this issue. The evidence supported
  the inference that defendant's stated change of mind was not genuine. As
  the trial judge stated, "Defendant's professed change of heart came too
  late and the officer reasonably concluded that he had no basis upon which
  to believe the [d]efendant was being sincere."  See State v. Thompson, 162
  Vt. 532, 535, 650 A.2d 139, 141 (1994) (we will not overturn findings of
  trial court if supported by credible evidence and not clearly erroneous).

       Affirmed.

     BY THE COURT:


     _______________________________________
     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