State v. Ratliff

State v. Ratliff (98-403); 169 Vt. 599; 738 A.2d 96

[Filed 09-Jul-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-403

                               JUNE TERM, 1999

State of Vermont	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	District Court of Vermont 
	                               }	Unit No. 3, Franklin County
Jadie E. Ratliff	               }
	                               }	DOCKET NO. 104-12-97Frcs	
 
             In the above-entitled cause, the Clerk will enter:

       Defendant Jadie Ratliff appeals the district court's finding that he
  refused to submit to a  blood alcohol concentration test.  He contends that
  his refusal to provide a blood sample did not  constitute a refusal to give
  an evidentiary sample.  We reverse.          
			
       Defendant was charged with driving while intoxicated under 23 V.S.A. §
  1201(a)(2)  and  leaving the scene of an accident under 23 V.S.A. § 1128.
  At the time defendant was cited to  appear for arraignment on the criminal
  charges he was given a notice of intent to suspend his  license under 23
  V.S.A. § 1205(a) based upon an allegation that he refused to submit to an 
  evidentiary test.  At the first civil suspension hearing, the court ruled
  in favor of defendant.  Subsequently, the state's motion to reopen the
  civil suspension case was granted.  At the second  civil suspension
  hearing, the court found that defendant had refused to submit to an
  evidentiary  test.  A stay of the suspension was granted pending appeal
  under 23 V.S.A. § 1205(k)  (suspension shall not be stayed pending appeal
  unless defendant is reasonably likely to prevail on  appeal).

       At the second hearing, defendant testified that he sustained an injury
  to his chin as a  result of a car accident that required three or four
  stitches.  Defendant had been taken to the  emergency room to have his
  injuries treated.  While there, a law enforcement officer decided to 
  process defendant for DWI because he reasonably believed that defendant had
  been driving while  under the influence of intoxicating beverages at the
  time of the accident.  The officer then spoke  with the attending physician
  whose advice is noted in the officer's affidavit as follows: "Per Dr. 
  Hosmer stitches on chin would possibl[y] open up if he tried to blow into
  the [infrared testing  equipment]."  Based on this information, the officer
  insisted, without first requesting a breath  sample, that defendant submit
  to a blood test. 

       On appeal, defendant maintains that he was willing and capable of
  giving a breath  sample.  He testified at the second hearing that the
  officer never expressed his concern to him  that the wounds might reopen if
  defendant attempted to provide a sample of breath for  evidentiary testing. 
  He further testified that the doctor did not tell him that his injuries
  rendered  him unable to provide a sufficient breath sample.  Moreover,
  defendant claims that his refusal to  submit to a blood test when he was
  willing to give a breath test is not a violation of 23 V.S.A. §  1202(a)(1)
  "([e]very person who operates . . . any vehicle on a highway in this state
  is deemed to  have given consent to an evidentiary test of that person's
  breath for the purpose of determining  the person's alcohol concentration .
  . . in the blood.").  23 V.S.A. § 1202(a)(2) states that "[i]f  breath
  testing equipment is not reasonably available or if the person is unable to
  give a sufficient  sample of breath for testing or if the law enforcement
  officer has reasonable grounds to believe  that the person is under the
  influence of a drug other than alcohol, the person is deemed to have  given
  consent to the taking of an evidentiary sample of blood."  The court 

 

  found that breath testing equipment was reasonably available.  There was no
  allegation that  defendant was under the influence of a drug other than
  alcohol.  Thus, the dispositive issue is  whether or not defendant was
  "unable to give a sufficient sample of breath" for evidentiary  purposes.

       In Miner v. District Court, 136 Vt. 426, 430, 392 A.2d 390, 393
  (1978), we held that "it  is not enough for a police officer to make a
  determination based on his experience that [a person  is] unable to give a
  sufficient sample of his breath and insist upon a blood sample being
  taken."   Whether a person is able to give a sufficient sample of his or
  her breath for testing is an  objective, factual inquiry, not a matter of
  the officer's subjective belief.  See id.  Moreover, 23  V.S.A. § 1202(2)
  permits an officer to exercise  judgment that a blood sample is necessary
  only  when the person is incapable of decision or unconscious or dead.
	
       In this case, the law enforcement officer apparently consulted with a
  medical professional  to determine defendant's ability to provide a
  sufficient breath sample.  The officer's affidavit  shows, however, that
  the doctor was concerned that the stitches on his chin might possibly open 
  up if defendant tried to blow into the infrared machine; the doctor did not
  say defendant was  unable to provide a sufficient sample.  The officer used
  the doctor's equivocal response to  determine defendant would be unable to
  successfully provide a breath sample.  Under these  circumstances, the
  officer had no authority to insist that defendant submit to a blood test. 
  The  better practice, in this instance, would have been for the officer to
  have actually permitted  defendant to attempt to provide a breath sample to
  determine whether or not he was able to give  a sufficient sample.  See id.
  136 Vt. at 428, 392 A.2d  at 392.

       In the absence of any evidence to indicate defendant was unable to
  take a breath test, the  court erred in holding that defendant had refused
  to provide an evidentiary sample.  See State v.  Yudichak, 147 Vt. 418,
  420-21, 519 A.2d 1150, 1152 (1986).

 	
       Reversed.
	
                                       BY THE COURT:

	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
 	                               John A. Dooley, Associate Justice

	                               _______________________________________
                                       James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice