State v. Ironside

State v. Ironside  (96-361); 167 Vt. 628; 711 A.2d 663

[Filed 25-Mar-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-361

                             DECEMBER TERM, 1997



State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont
                                }     Unit No. 2, Chittenden Circuit
Steven Ironside                 }
                                }     DOCKET NO. 156-5-96CnCs




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


       In this civil license-suspension proceeding, the district court denied
  defendant's motion to suppress results of an evidentiary breath test and
  stayed suspension of defendant's license pending appeal.  Defendant
  appeals, arguing that he was denied the assistance of counsel required
  under 23 V.S.A. § 1202(c) when the police refused to provide his appointed
  counsel with information from a background record check of defendant's
  prior driving offenses.  We affirm.

       On May 5, 1996, while being processed for DUI, defendant indicated
  that he wished to speak with an attorney prior to submitting to an
  evidentiary breath test.  The processing officer contacted the on-call
  public defender by telephone, identified the defendant and the nature of
  the offense, then gave the telephone to defendant so that he could speak
  with counsel.  Soon thereafter defendant handed the telephone back to the
  officer.  Counsel requested the officer to check DMV records for any prior
  DUI convictions of the defendant, explaining that the information was
  necessary to advise his client effectively.  The officer advised counsel
  that police department policy did not permit disclosure of prior conviction
  records, but that he would verify the policy with a superior.  After
  confirming department policy, the officer again telephoned counsel and
  immediately handed the telephone to defendant.  Defendant spoke briefly
  with his attorney and handed the telephone back to a different officer, who
  reiterated the department's policy.  Counsel again stated that a background
  check on defendant's prior convictions was necessary to advise his client
  properly.  The officer then allowed defendant to confer privately with
  counsel, at which time defendant allegedly indicated that he had been
  convicted of DUI on two prior occasions.  Counsel was unwilling, however,
  to rely upon defendant's recollection of his prior convictions, and
  therefore declined to advise him on whether to submit to the breath test. 
  Defendant then submitted to the breath test.

       Defendant moved the district court to suppress the breath test results
  on grounds that he "was denied his right to talk with a lawyer before
  deciding whether or not to submit to a test." The district court found that
  the statute does not require disclosure of information on defendant's
  record of prior convictions: "To rule otherwise would put a requirement on
  the police which is not required in [the] statute."  Defendant appeals.

 

       Defendant argues that the police denied him the meaningful opportunity
  to consult with counsel required under the implied consent statute.  He
  notes that the legal consequences of taking, or refusing to take, the
  breath test differ greatly according to whether a person has one or more
  prior convictions for DUI.  His argument is that when the police refused to
  provide counsel with a record check, and thereby required counsel to rely
  on defendant's recollection of his prior record, they withheld information
  necessary for counsel to effectively represent his client.  According to
  defendant, the officer's refusal to provide record check information, and
  counsel's subsequent refusal to provide legal advice, was functionally
  equivalent to a total denial of the opportunity to consult with counsel. 
  See State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991) (when
  officer repeatedly attempted to contact counsel but was unable to do so,
  defendant was denied assistance counsel, and thus license suspension was
  reversed).  We disagree and hold that the mandate of § 1202(c) was
  satisfied when defendant was allowed to consult on the telephone in private
  with counsel.

       An individual requested to take an evidentiary breath test in
  connection with DUI processing has a statutory right to consult with an
  attorney before deciding whether or not to take the test.  See 23 V.S.A. §
  1202(c).  The individual must be "`afforded a meaningful opportunity to
  consult with counsel.'"  State v. George, 161 Vt. 615, 615, 640 A.2d 26, 27
  (1994) (mem.) (quoting Pfeil v. Rutland District Court, 147 Vt. 305, 310,
  515 A.2d 1052, 1056 (1986)).  When law enforcement officials unjustifiably
  interfere with the right to attorney consultation, remedial action may be
  necessary, see State v. Lombard, 146 Vt. 411, 415, 505 A.2d 1182, 1184
  (1985), but the statute "does not guarantee a fruitful or flawless
  consultation," State v. Fredette, 8 Vt. L.W. 335, 336 (1997).  Fredette
  involved a factual situation similar to the one here.  Although the police
  officer in that case provided counsel with the arrestee's record of prior
  convictions, the information was incorrect.  The arrestee consulted with an
  attorney, but the attorney's advice was based on erroneous information.  We
  held that defendant had not been denied a meaningful opportunity to consult
  with an attorney because the police were under no statutory obligation to
  provide a record of the arrestee's prior convictions to arrestee's counsel. 
  "The statutory right to counsel concerns an arrestee's opportunity to
  consult freely with an attorney, not with the attorney's right to consult
  with, or obtain correct information from, police."  Id. at 336.

       The holding in Fredette controls here.  In the instant case, the
  police officer afforded defendant a private telephone consultation with an
  attorney, and thus the statute was satisfied; the attorney's choice to
  withhold advice, in the belief that defendant's recollection of his prior
  record was not reliable, does not negate this fact.  See State v. Clark,
  164 Vt. 626, 628, 671 A.2d 1276, 1278 (1996) (mem.) (State is not guarantor
  of attorney's advice; claim of ineffective assistance inappropriate in
  context of license-suspension proceeding).

 

       Affirmed.






                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn R. Skoglund, Associate Justice