State v. Lussier

Annotate this Case
State v. Lussier  (98-394); 171 Vt. 19; 757 A.2d 1017 

[Filed 28-Apr-2000]
[Motion for Reargument in 99-017 Denied 12-Jun-2000]

       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.


                            Nos. 98-394 & 99-017


State of Vermont                               Supreme Court

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

Steven R. Lussier, Jr. 	                       April Term, 1999

State of Vermont

     v.

Robert R. Lussier


Mary Miles Teachout, J. (98-394)
Alan W. Cook, J. (99-017)

       Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer
  and Robert Butterfield, Deputy State's Attorneys, St. Johnsbury, for
  Plaintiff-Appellee.

       David C. Sleigh of Sleigh & Williams, St. Johnsbury, for
  Defendants-Appellants.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.



       JOHNSON, J.   Defendants in these two consolidated cases appeal the
  civil suspension  of their driver's licenses.  At issue is whether the
  district court in a civil suspension proceeding  may consider the
  constitutionality of the underlying stop, and, if so, whether the stops in
  these  two cases were lawful.  We hold that a defendant in a civil
  suspension proceeding may challenge  the reasonableness of the underlying
  stop pursuant to 23 V.S.A. § 1205(h)(1), which permits the  court to
  consider whether the police officer had reasonable grounds to believe that
  the defendant  was driving while intoxicated.  This interpretation of §
  1205(h)(1) is consistent with our belief that  the exclusionary rule's ban
  against the admission of unlawfully obtained evidence should extend  to
  civil suspension proceedings to protect the core value of privacy 

 

  embraced by Chapter I, Article 11 of the Vermont Constitution.  Examining
  the stops in the two  cases before us, we conclude that defendant Steven
  Lussier was lawfully stopped for operating a  motor vehicle with only one
  functioning taillight, but that defendant Robert Lussier was  unlawfully
  stopped for operating a vehicle with only one functioning rear license
  plate light.

       There is no dispute as to the facts in either case.  Defendant Steven
  Lussier was stopped  at 2:49 in the morning on June 28, 1998 by a police
  officer who observed that his passenger car's  right taillight was
  inoperable.  Upon stopping the vehicle, the officer noticed signs of
  intoxication  and ultimately processed defendant for driving while
  intoxicated (DWI) after he failed to  satisfactorily perform field
  dexterity tests.  Defendant agreed to a breath test, which revealed a 
  blood-alcohol concentration of .152.

       At his civil suspension hearing, defendant argued that because Vermont
  statutory law  requires only one functional taillight on passenger cars,
  the officer had no reasonable basis for  stopping him.  The district court
  rejected this argument, concluding that Vermont law requires  that each and
  every taillight on a motor vehicle be in good operating condition.  On
  appeal,  defendant renews his argument that there was no reasonable basis
  for the stop of his vehicle  because Vermont law requires only one
  functioning taillight.

       In the second case, defendant Robert Lussier was stopped at 1:18 in
  the morning on  November 29, 1998 by a police officer who observed that one
  of the two white lights intended to  illuminate his truck's rear license
  plate was inoperable.  Upon stopping the vehicle, the officer  noticed
  signs of intoxication and ultimately processed defendant for DWI after he
  was unable to  perform field dexterity tests.  Defendant agreed to a breath
  test, which revealed a blood-alcohol  concentration of .140.

       At the civil suspension hearing, defendant argued that because Vermont
  statutory law  requires only one light to illuminate the rear license
  plate, the officer had no reasonable and  articulable basis for stopping
  his truck.  The district court concluded that the stop was justified  by
  the inoperable plate light, and that in any event the issue concerning the
  validity of the stop 

 

  was not one of the limited issues enumerated in § 1205(h) that may be
  raised in civil suspension  proceedings.  On appeal, defendant contends
  that there was no reasonable basis for stopping his  truck because Vermont
  law does not require two functioning rear license plate lights, and his
  plate  was adequately illuminated.

       The parties in both cases requested and received permission to
  incorporate into their  appeals the briefs in two other appeals pending
  before this Court, State v. Nickerson, 98-530 and  State v. Rash, 98-531. 
  The principal issue raised in those appeals is whether the exclusionary 
  rule's ban against the admission of unlawfully obtained evidence should be
  applied in civil  suspension hearings.

                                     I.

       Before considering whether the stops in the instant cases were lawful,
  we must consider  whether a defendant in a civil suspension hearing may
  challenge the reasonableness of the  underlying stop.

                                     A.

       Under 23 V.S.A. § 1205(h)(1)-(5), the issues at a final civil
  suspension hearing are limited  to the following:

    (1) whether the law enforcement officer had reasonable
    grounds  to believe the person was operating, attempting to
    operate or in  actual physical control of a vehicle in violation
    of section 1201 of  this title;

    (2) whether at the time of the request for the evidentiary
    test the  officer informed the person of the person's rights and
    the  consequences of taking and refusing the test . . .;

    (3) whether the person refused to permit the test;

    (4) whether the test was taken and the test results indicated
    that the  person's alcohol concentration was 0.08 or more at the
    time of  operati[on] . . ., whether the testing methods used were
    valid and  reliable and whether the test results were accurate and
    accurately  evaluated. . . .;

    (5) whether the requirements of section 1202 of this title
    [consent  to taking of tests to determine blood alcohol content]
    were complied  with.



 

       According to the State, because the limited issues enumerated in §
  1205(h) do not  explicitly include whether reasonable grounds existed for
  the stop, the Legislature must not have  intended to allow defendants in
  civil suspension proceedings to challenge the constitutionality of  stops. 
  See State v. Pollander, 167 Vt. 301, 308, 706 A.2d 1359, 1363 (1997)
  (Legislature  intended to limit issues that may be presented in civil
  suspension hearings to those enumerated in  statute).  In the State's view,
  the reasonableness of the officer's belief that the defendant was  driving
  while intoxicated, see § 1205(h)(1), may be satisfied solely on evidence of
  intoxication  gathered after the stop - odor of alcohol, watery eyes,
  slurred speech, failure to perform dexterity  tests, etc. -  regardless of
  the lawfulness of the stop itself.

       We are not persuaded by the State's argument.  Our primary duty in
  construing a statute  is to discern the intent of the Legislature by
  examining the language of the entire statute, along  with its purpose,
  effects, and consequences.  See Candido v. Polymers, Inc., 166 Vt. 15, 17,
  687 A.2d 476, 478 (1996); State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996).  While the  Legislature plainly intended to expedite the
  adjudication of civil license suspensions, see State v.  Strong, 158 Vt.
  56, 61, 605 A.2d 510, 513 (1992), it was careful to ensure that all of the
  rights  related to the taking of a blood or breath sample applied equally
  in both criminal and civil DUI  proceedings.  We find it unlikely that the
  Legislature intended to retain these statutorily created  rights in civil
  suspension proceedings while stripping defendants in those proceedings of
  their  constitutionally protected right to be free from unreasonable stops. 
  Rather, we conclude that, in  permitting defendants in a civil suspension
  proceeding to dispute whether the processing officer  had reasonable
  grounds to believe that the motorist was driving while intoxicated, the
  Legislature  assumed that a constitutional stop would be a necessary
  predicate to finding "reasonable grounds"  for suspicion of DUI.  Nothing
  in the language of § 1205 or the purpose behind the statute  suggests that
  the Legislature intended otherwise.

       Section 1205(h)(1) permits defendants in civil suspension proceedings
  to challenge whether  the arresting officer had reasonable grounds to
  suspect a DWI violation.  When a motor 

 

  vehicle stop is based on an officer's suspicion that the driver was
  intoxicated, the issue of whether  the officer had reasonable grounds to
  suspect a DWI violation is logically extended to the question  of whether
  there was a reasonable basis for the stop.  It would make little sense,
  however, to allow  defendants to challenge the legality of the underlying
  stop only in situations when the officer  indicated that the stop was based
  on a suspicion that there had been a DWI violation.  In  determining the
  legality of a stop, courts do not attempt to divine the arresting officer's
  actual  subjective motivation for making the stop; rather, they consider
  from an objective standpoint  whether, given all of the circumstances, the
  officer had a reasonable and articulable suspicion of  wrongdoing.  See
  State v. Sutphin, 159 Vt. 9, 11, 614 A.2d 792, 793 (1992).  It is
  conceivable  that officers might stop individuals for minor vehicle
  violations based on a suspicion of DUI,  perhaps because the individuals
  have a prior history of DUI in the community or because of other cir-
  cumstances, such as the time of night or the location of the vehicle. (FN1)
  The point is that the  subjective motivation of the officer is not
  the basis for determining the legality of a stop, and thus  the issue of
  whether a stop was legal should not be excluded from determining whether
  the officer  had reasonable grounds to suspect a DUI violation, simply
  because the stop was 


 

  ostensibly made on grounds other that DUI.

       Hence, a rational interpretation of § 1205(h)(1) would permit
  defendants to challenge the  reasonableness of the officer's belief based
  on the fact that it was derived from an unlawful stop.  The State seeks a
  more narrow interpretation, however, which would permit law enforcement 
  officers to make random stops of vehicles for any or no reason at all in
  the hopes of detecting  drunk drivers.  Indeed, under the State's
  interpretation of the statute, roadblocks could be set up  without regard
  to the carefully considered strictures set forth in State v. Martin, 145
  Vt. 562, 571,  496 A.2d 442, 448 (1985) and adopted under Article 11 in
  State v. Record, 150 Vt. 84, 88, 90,  548 A.2d 422, 425, 426 (1988). 
  License suspensions could follow the unlawful police conduct as  long as at
  any point after the stop the officer formed a reasonable belief that the
  defendant was  intoxicated.  We cannot conceive that the Legislature
  intended to insert into the civil suspension  system all of the statutory
  rights concerning consent to evidentiary tests, see § 1205(h)(5), and at 
  the same time to dispense with basic constitutional protections against
  unreasonable governmental  intrusions.  Accordingly, we decline the State's
  invitation to attribute to the Legislature the intent  to sanction
  unconstitutional police conduct in the context of civil suspension
  proceedings.  See  Williams v. Ohio Bureau of Motor Vehicles, 610 N.E.2d 1229, 1231 (Ohio Mun. 1992) (in  creating civil suspension system,
  legislature did not change DWI laws so as to abrogate drivers' 
  constitutional rights; lack of constitutional stop vitiates right to
  request compliance with implied  consent law).

       We recognize, as Justice Skoglund points out, that in creating the
  civil license suspension  system ten years ago, the Legislature intended to
  fashion a speedy and summary proceeding that  would protect the public by
  quickly removing potentially dangerous drivers from Vermont  highways.  See
  Pollander, 167 Vt. at 307-08, 706 A.2d  at 1363 ; Strong, 158 Vt. at 61, 605 A.2d   at 513.  But Justice Skoglund's concern that allowing defendants in
  civil suspension proceedings  to challenge the constitutionality of stops
  will undermine the Legislature's intent in this regard  appears to be
  unfounded.  Apparently, in the ten years since the creation of the civil
  suspension 

 

  system, at least some of the trial courts in such proceedings have been
  considering the  constitutionality of stops without undermining the system. 
  See, e.g., State v. Flynn, 164 Vt. 637,  638, 674 A.2d 792, 793 (1996)
  (reversing district court's ruling in civil suspension proceeding that 
  underlying stop was unlawful).  Yet, the State is not claiming that undue
  delay has resulted in the  past from permitting defendants to challenge the
  constitutionality of stops in civil suspension  proceedings.

       Moreover, as noted, while the Legislature sought to avoid the
  significant delay that often  occurs during the criminal DWI process, it
  was also careful to ensure that all of the statutory rights  related to the
  taking of evidentiary tests applied in both proceedings, and that
  defendants could  challenge civil suspensions based on issues concerning
  their statutory rights.  Of all the issues  litigated in civil suspension
  proceedings, perhaps the easiest and least time consuming is whether  the
  stop was based on reasonable suspicion of unlawful activity.  In most
  cases, the State can meet  its burden by submitting the investigating
  officer's affidavit stating the reasons for the stop.

       We also note that the licenses of repeat DWI offenders are suspended
  upon notice before  the final hearing regardless of what issues are to be
  raised, see 23 V.S.A. § 1205(e)(2), and that  a final suspension hearing in
  any case must occur within forty-two days of the alleged offense  absent
  good cause or the consent of the defendant, see id. § 1205(h).  Thus, we
  find no basis for  the State's dire warnings of delay that will result from
  allowing trial courts in civil suspension  proceedings to consider the
  lawfulness of the underlying stop.

       Relying primarily on State v. Stearns, 159 Vt. 266, 617 A.2d 140
  (1992), Justice Skoglund  states that our interpretation of § 1205(h)(1)
  will effectively preclude the State from relying on an  officer's affidavit
  in civil suspension proceedings, which will be transformed into full-blown
  trials  requiring the presence of police officers serving as witnesses. 
  See Justice Skoglund's dissent, post,  at 5-6, 7-8.  Justice Skoglund
  questions how our holding today comports with the analysis in  Stearns. 
  See id. at 8.  Our holding is completely consistent with the analysis in
  Stearns.


 

       In Stearns, the pro se defendant prevailed at a civil license
  suspension proceeding after the  trial court accepted his testimony -
  despite the contradictory affidavit of the arresting officer - that  the
  officer had not given him a fair opportunity to take a breath test.  See
  159 Vt. at 267, 617 A.2d   at 140.  The defendant then argued that the State
  was collaterally estopped in the criminal DUI  proceeding from relitigating
  whether he had refused a breath test.  See id. at 268, 617 A.2d  at 141. 
  Reversing the trial court, this Court concluded that collateral estoppel
  did not apply because the  State did not have a full and fair opportunity
  in the summary civil suspension proceeding to litigate  the issue of
  whether the defendant had refused the test.  See id. at 272, 617 A.2d  at
  143.  We  reasoned as follows:

      It is one thing for the State to assume the risk that a defendant's 
     license will not be suspended because an officer's affidavit, in the 
     face of defendant's live testimony, does not adequately convince the 
     court.  It is quite another thing if the risk includes the substantial 
     chance that defendant also will avoid criminal responsibility.  As the 
     courts concluded in Ratliff and Moore, the effect would be that the 
     State would be forced to try the criminal case, with live witnesses, 
     in the civil suspension proceeding.  Application of issue preclusion 
     would nullify the summary suspension proceeding that the 
     Legislature enacted.

  Id. at 271-72, 617 A.2d  at 143 (emphasis added).  Our analysis relied
  heavily on the Oregon  Supreme Court's reasoning reaching the same holding
  - no collateral estoppel - in a case in which  the hearing officer had
  entered judgment for the defendant in a civil suspension proceeding after 
  concluding that the underlying police stop was not supported by reasonable
  suspicion.  See id. at  269, 617 A.2d  at 141-42 (discussing and quoting
  extensively from State v. Ratliff, 744 P.2d 247, 250 (Or. 1987)).

       Justice Skoglund suggests that our holding is inconsistent with the
  analysis in Stearns  because it precludes the State from relying on the
  arresting officer's affidavit in civil suspension  proceedings, and instead
  compels the State to try its entire criminal case, with live witnesses, in 
  what was supposed to be a summary proceeding.  See Justice Skoglund's
  dissent, post, at 5-6, 7-8.  Such concerns apply equally to any issue,
  including any of those explicitly listed in § 1205(h), that  a defendant
  might choose to raise in a civil suspension proceeding.  Indeed, the issue
  that the  defendant prevailed on in Stearns, notwithstanding the arresting
  officer's affidavit, was whether  he had refused to take a breath 

 

  test - an issue that § 1205(h)(3) explicitly allows to be raised in civil
  license suspension  proceedings.

       Yet, we did not suggest in Stearns that allowing the defendant to
  counter the State's  affidavit with live testimony regarding that issue, or
  any other issue, would undermine the  Legislature's goal of expediting
  civil suspension proceedings.  To the contrary, we stated that if  the
  State chooses to rely solely on the arresting officer's affidavit, it must
  assume the risk that the  defendant's license might not be suspended
  because of the defendant's live testimony challenging  that affidavit;
  however, we concluded that the State should not have to risk losing the
  criminal case  because of how the issue was presented in the summary civil
  suspension proceeding.  See Stearns,  159 Vt. at 271-72, 617 A.2d  at 143. 
  This reasoning is no less true when the defendant challenges  the
  underlying stop in the civil suspension proceeding, as was the situation in
  Ratliff, the case upon  which the Stearns analysis is based.  In short, our
  law is settled regarding crossover estoppel in  DUI civil and criminal
  proceedings, see Pollander, 167 Vt. at 304-07, 706 A.2d  at 1360-62, and 
  there is no evidence that the summary adjudication of civil license
  suspensions has been  undermined, even though Vermont trial courts have in
  the past allowed defendants in such  proceedings to challenge the
  constitutionality of the underlying stops.

       Our conclusion that a constitutional stop is a necessary predicate for
  a finding that an  officer had "reasonable grounds" to believe that a
  person was driving while intoxicated is supported  by a significant number
  of cases in other jurisdictions, as discussed below.  In many of those
  cases,  courts construing statutes very similar to § 1205(h) have held that
  a lawful arrest, including a  constitutional stop, is a prerequisite for an
  officer to have reasonable grounds to support a license  suspension. 
  Justice Skoglund attempts to distinguish some of the cases by pointing out
  that the  statutes interpreted therein permitted the defendants to
  challenge the suspension of their licenses  on the grounds that they were
  not "under arrest" when they were asked to submit to an evidentiary  test. 
  Justice Skoglund's dissent, post, at 6-7.  Rather than undermine the
  support that these cases  offer for our holding, the distinction only
  emphasizes the need to construe § 1205(h)(1) broadly  to protect Vermont
  motorists from unwarranted 

 

  governmental intrusions that are not based on articulable suspicion, let
  alone probable cause.  Cf.  Fishbein v. Kozlowski, 743 A.2d 1110, 1117
  (Conn. 1999) (statute's probable-cause-to-arrest  requirement, coupled with
  provision for administrative hearing, afforded driver all constitutional 
  protection to which he was entitled).

       Here are some examples of cases that support our holding.  In Watford
  v. Bureau of Motor  Vehicles, 674 N.E.2d 776, 778 (Ohio Ct. App. 1996), the
  court examined a statute that permitted  defendants in civil suspension
  proceedings to contest "'[w]hether the law enforcement officer had 
  reasonable ground to believe the arrested person was operating a vehicle .
  . . under the influence  of alcohol . . . and whether the arrested person
  was in fact placed under arrest.'" (emphasis in  opinion).  The court held
  that "a lawful arrest, including a constitutional stop," was required
  before  a refusal to take a test could trigger a license suspension.  Id.

       In People v. Krueger, 567 N.E.2d 717, 721-22 (Ill. App. Ct. 1991), the
  court also  addressed the scope of suspension hearings under a statute
  similar to ours.  Refusing to construe  the statute in a manner that would
  authorize unconstitutional arrests or searches and allow license 
  suspensions to be based on the fruits of unconstitutional police conduct,
  the court concluded that  the statute implicitly required that arrests
  triggering license suspensions be lawful.  See id. at 722;  see also Gikas
  v. Zolin, 863 P.2d 745, 749 (Cal. 1993) (en banc) (license suspension
  requires  lawful arrest based on constitutional stop).

       Similarly, in Pooler v. MVD, 755 P.2d 701, 702-03 (Or. 1988) (en
  banc), the Oregon  Supreme Court concluded that because the legislature
  implicitly intended to require valid DWI  arrests, the scope of
  administrative suspension hearings permitted defendants to raise issues 
  concerning the validity of the underlying stops.  See id.  Like the other
  courts, the Oregon court  expressed concern that a contrary holding would
  allow police to stop drivers at random without  reasonable suspicion in the
  hopes of identifying the occasional intoxicated motorist.  See id. at 703. 
  The court declined to attribute to the legislature an intent to condone
  such unconstitutional  procedures.  See id.

 

       Additionally, in Brownsberger v. MVD, 460 N.W.2d 449, 450 (Iowa 1990),
  the Iowa  Supreme Court examined a statute permitting motorists to reopen
  license revocation proceedings  upon a finding in the later criminal
  proceeding that the arresting officer did not have reasonable  grounds to
  believe that the motorist was driving while intoxicated.  Rejecting the
  State's argument  that the district court erred by equating a finding of
  "no reasonable grounds to stop" with the more  general statutorily mandated
  finding of "no reasonable grounds to believe that the motorist had  been
  driving while intoxicated," the court concluded that the statute permitted
  the reopening of  license revocation cases when the criminal court found no
  reasonable basis for the stop.  See id.  at 450-51.

       Other courts construing statutes similar to § 1205(h)(1) have refused
  to allow defendants  in civil suspension proceedings to challenge the
  lawfulness of the investigatory stop.  See Fishbein,  743 A.2d  at 1116-17
  (5-2 decision); Powell v. Secretary of State, 614 A.2d 1303, 1305 (Me. 
  1992); Beavers v. Department of Motor Vehicles, 851 P.2d 432, 434-35 (Nev.
  1993) (per curiam);  Department of Transp. v. Wysocki, 535 A.2d 77, 79-80
  (Pa. 1987) (5-1 decision).  For the most  part, these decisions provide
  little rationale to support their construction of the statutes in question 
  - other than emphasizing that drunk driving laws are intended to remove
  intoxicated drivers from  the highways in an expedited fashion - and thus
  we do not find them persuasive.  Rather, while  we are mindful of the
  important public purpose of keeping intoxicated drivers off of our
  highways,  we do not believe that the Legislature intended § 1205(h) to
  permit license suspensions to be based  on unconstitutional stops.  Cf.
  Pollander, 167 Vt. at 308, 706 A.2d  at 1363 (because necessity  defense
  emanates from common law rather than constitutional imperative, Legislature
  is free to  determine whether defense is issue to be considered in civil
  suspension hearing).

       Relying primarily on State v. District Court, 129 Vt. 212, 274 A.2d 685 (1971), Justice  Skoglund states that it has been this Court's
  "understanding" for nearly thirty years that  "reasonable grounds" means
  "that the officer must have formed a reasonable basis to request a 

 

  blood alcohol test from the person under investigation."  See Justice
  Skoglund's dissent, post, at  3-4.  By construing § 1205(h)(1) to mean
  something other than what it explicitly states, Justice  Skoglund does
  precisely what she suggests that this Court is doing - reading into the
  statute  language that is not there.  See id. at 4.  More importantly, the
  issue before this Court is one of  first impression, as recognized by the
  parties.  This Court has never implied, let alone held, that  in allowing
  defendants to challenge whether the law enforcement officer had "reasonable
  grounds  to believe the person was operating . . . a vehicle in violation
  of section 1201," the Legislature  intended to preclude defendants from
  challenging the reasonableness of the stop that led to DUI  processing and
  prosecution.  If anything, we have suggested the contrary by recognizing
  that  "reasonableness hearings, although not criminal, seek a parallel sort
  of protection for operators  against an arbitrary exercise of . . . police
  power."  See District Court, 129 Vt. at 215, 274 A.2d   at 686.

                                     B.


       Our construction of § 1205(h)(1) is consistent with this Court's view
  of the scope of the  exclusionary rule.  Evidence obtained as the result of
  constitutional violations by law enforcement  officers may not be admitted
  at trial as a matter of state law because doing so "eviscerates our most 
  sacred rights, impinges on individual privacy, perverts our judicial
  process, distorts any notion of  fairness, and encourages official
  misconduct."  State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349
  (1982).  In determining the scope of the exclusionary rule, we have not
  rejected outright  a cost-benefit analysis that balances the deterrent
  effect to be achieved by excluding unlawfully  obtained evidence against
  the cost of excluding such evidence, but we have emphasized that the  focus
  of any such analysis should be on the individual constitutional rights at
  stake.  See State v.  Oakes, 157 Vt. 171, 174, 598 A.2d 119, 121-22 (1991). 
  Indeed, any empirical assessment  indicating that the resulting costs and
  benefits weigh in favor of admitting unlawfully obtained  evidence must be
  so persuasive as to negate the important rights at stake.  See id. at
  174-75, 598 A.2d  at 122; cf. State v. Robinson, 165 Vt. 351, 353-55, 683 A.2d 1005, 1007-08 (1996) (because  of unique nature of summary contempt,
  policies behind exclusionary 


 

  rule do not require suppression of evidence obtained when contemnor is
  searched in preparation  of incarceration following finding of criminal
  contempt).

       Hence, in Oakes, we declined to adopt a "good faith" exception to the
  introduction of  unlawfully obtained evidence in criminal trials because we
  were unpersuaded by the cost-benefit  analysis that the United States
  Supreme Court followed in United States v. Leon, 468 U.S. 897  (1984).  See
  157 Vt. at 183, 598 A.2d  at 126.  Since then, the Supreme Court has
  continued to  narrow the scope of the federal exclusionary rule based on
  questionable reasoning that has been  subject to much criticism.  See INS
  v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (exclusionary  rule is not
  applicable in deportation proceedings); Pennsylvania Bd. of Probation v.
  Scott, 524 U.S. 357, 364 (1998) (exclusionary rule is not applicable in
  parole revocation hearings); see also  1 W. LaFave, Search and Seizure §
  1.7(e), at 206-07 (3d ed. 1996) (discussing "extreme and  fundamentally
  unsound" cost-benefit analysis utilized in INS v. Lopez-Mendoza).

       While the Supreme Court continues to restrict the scope of the
  exclusionary rule, courts in  other jurisdictions are divided on whether
  the exclusionary rule is applicable in civil license  suspension
  proceedings.  See Annotation, Admissibility, in Motor Vehicle License
  Suspension  Proceedings, of Evidence Obtained by Unlawful Search and
  Seizure, 23 A.L.R.5th 108, 123-29  (1994); LaFave, supra, at 199-200. 
  Those courts declaring the exclusionary rule inapplicable in  such
  proceedings reason that (1) applying the rule to summary license suspension
  proceedings  would unnecessarily and unduly complicate those proceedings;
  (2) public interest demands that  drunk drivers be removed from the
  highways; and (3) because the unlawfully obtained evidence  has been or
  will be excluded from related criminal proceedings, there is little
  additional deterrent  effect on police conduct that would result from
  excluding the evidence in the suspension  proceedings.  See Riche v.
  Director of Revenue, 987 S.W.2d 331, 334-35 (Mo. 1999); Powell,  614 A.2d
  at 1306-07; Holte v. State Highway Comm'r, 436 N.W.2d 250, 252 (N.D. 1989).

       We are not persuaded that any of these reasons compel the introduction
  of unlawfully  obtained evidence in civil suspension proceedings.  As noted
  above, the State has not provided 


 

  us with either empirical evidence or sound argument suggesting that
  application of the exclusionary  rule would seriously undermine the
  Legislature's intent to create a speedy and summary civil  suspension
  system.

       As for the second reason, we recognize the importance of removing
  intoxicated drivers  from Vermont's highways, just as we recognize the
  importance of bringing to justice those persons  that violate our criminal
  laws.  But the public's interest in having strict police control over
  persons  driving on our highways may not be satisfied at the expense of our
  constitutional right to be free  from unbridled government interference in
  our lives, see Holland v. Parker, 354 F. Supp. 196, 199  (D. S.D. 1973),
  particularly considering that the State offers no empirical evidence
  suggesting that  applying the exclusionary rule in civil suspension
  proceedings will have a deleterious effect on  preventing the carnage
  caused by drunk drivers.  If the State were permitted to obtain license 
  suspensions based on evidence resulting from unconstitutional stops, the
  right of individuals to be  free from unreasonable governmental intrusion
  into their private affairs, as guaranteed under  Article 11, would be
  seriously compromised.

       Third, in our view, the exclusionary rule is just as necessary to
  deter unlawful police  conduct in the context of civil suspension
  proceedings as it is in related criminal DWI proceedings.  Generally, in
  both the criminal and civil components of DWI cases the State presents the
  same  evidence from the same stop made by the same police officer. 
  Further, in both the civil and  criminal cases, license revocation is often
  the most long-lasting and significant sanction imposed  on the defendants. 
  See 23 V.S.A. §§ 1205(a), (m), 1206, 1208, 1210; Whisenhunt v. Department 
  of Public Safety, 746 P.2d 1298, 1299 (Alaska 1987).  The nationwide
  campaign against drunk  driving has taught us, if nothing else, that the
  threat of criminal prosecution has little impact on  keeping problem
  drinkers off of our highways.  As a result, the focus of state legislatures
  and law  enforcement agencies has been on removing intoxicated motorists
  from highways by suspending  their licenses or otherwise preventing them
  from driving.  Because the primary objective of DUI  laws and law
  enforcement is to remove 

 

  intoxicated drivers from our highways, the deterrent effect of the
  exclusionary rule would be  weakened significantly if it were not applied
  in civil suspension proceedings.  See Whisenhunt, 746 P.2d  at 1299.

       As noted, if the exclusionary rule were not applied in civil
  suspension proceedings, law  enforcement officers could make investigatory
  stops based on hunches or stereotypical beliefs, or  for any or no reason
  whatsoever, knowing that even if any evidence obtained from the stop were 
  to be suppressed in criminal proceedings, license suspensions could still
  follow.  Given the  significance of obtaining license suspensions, allowing
  unlawfully obtained evidence to be admitted  in civil suspension
  proceedings could encourage disregard for the constitutional limits of a
  legal  stop.  See LaFave, supra, at 202-03 (highly relevant factors in
  determining whether to apply  exclusionary rule in quasi-criminal
  proceedings are magnitude of consequences for individual  involved and
  extent to which non-exclusion would encourage unlawful searches and
  seizures); cf.  Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700-02 (1965)
  (exclusionary rule is applicable in  forfeiture proceedings because they
  are quasi-criminal in character and can result in punishment  even greater
  than in underlying criminal case).

       In sum, notwithstanding that the license suspension system is civil in
  nature and does not  demand all of the procedural safeguards required in
  criminal proceedings, see State v. O'Brien,  158 Vt. 275, 277, 609 A.2d 981, 982 (1992), we conclude that it is appropriate to apply the 
  exclusionary rule in civil license suspension proceedings to protect the
  core value of privacy  embraced in Article 11, to promote the public's
  trust in the judicial system, and to assure that  unlawful police conduct
  is not encouraged.  See Lopez-Mendoza, 468 U.S.  at 1060-61 (Marshall,  J.,
  dissenting) (exclusionary rule enables "judiciary to avoid taint of
  partnership in official  lawlessness" and assures public that "government
  will not profit from lawless behavior").

       The essence of the Chief Justice's remarks in his dissent is that the
  danger of drunk driving  supercedes the right of Vermonters to be free from
  governmental intrusion into their private affairs.  The Chief Justice
  accuses this Court of having done a "great disservice" to law 

 

  enforcement officials by concluding that the potential risk of unlawful
  police conduct exceeds the  actual risk of drunk driving.  See post, at 7. 
  Nowhere in our decision do we make such a  conclusion.  Our holding has
  nothing to do with the likelihood of whether police officers will act  in
  good faith or how often they will make illegal stops.  Rather, we seek to
  provide an enforcement  mechanism for constitutional rights that protect
  citizens against unlawful government intrusions.  This Court's enforcement
  of those rights does no more disservice to law enforcement officers than 
  the existence of the rights themselves.  Indeed, assuming the Chief
  Justice's faith in law  enforcement officials is well-founded, our holding
  will have no impact whatsoever on the  prosecution of DUI civil
  suspensions.

       It is the duty of this Court to see that constitutional rights are
  upheld.  By precluding the  introduction of evidence obtained as the result
  of constitutional violations, the exclusionary rule  protects those "most
  sacred rights."  See Badger, 141 Vt. at 452-53, 450 A.2d  at 349.  We 
  emphasized in Oakes that the focus of any cost-benefit analysis concerning
  application of the  exclusionary rule should be on the individual
  constitutional rights at stake.  See 157 Vt. at 174, 598 A.2d  at 122. 
  Yet, even though there is not the slightest indication that allowing
  defendants in DUI  civil proceedings to challenge the constitutionality of
  police stops would have any impact on the  proliferation of drunk drivers
  on our highways, the Chief Justice would hold that the risk of  returning
  intoxicated drivers to the road outweighs any marginal benefits that result
  from the  suppression of relevant and reliable evidence of intoxication in
  a civil suspension proceeding.  We  believe that there is more than
  marginal benefit in upholding the important constitutional right at  stake
  here - the right of citizens to be free from unwarranted governmental
  intrusion into their  private affairs.  (FN2)


 

                                    III.

       Having determined that defendants in civil license suspension
  proceedings may challenge  the constitutionality of the underlying stops,
  we now examine the bases for the investigatory stops  that occurred in the
  two cases before us.  As noted, the law is well-settled that police may
  stop a  vehicle and briefly detain its occupants to investigate a
  reasonable and articulable suspicion that  a motor vehicle violation is
  taking place.  See Sutphin, 159 Vt. at 11-12, 614 A.2d at 793-94; State  v.
  Boardman, 148 Vt. 229, 231, 531 A.2d 599, 601 (1987).  Here, both stops
  resulted from what  the officers believed to be motor vehicle violations
  pertaining to the proper operation of taillights.

       There are four relevant statutes.  The first, 23 V.S.A. § 1221,
  provides that a motor  vehicle operated on a highway "shall be in good
  mechanical condition and shall be properly  equipped."  The second, 23
  V.S.A. § 4(37), refers to "tail lamps" in defining the terms "standard 
  equipment" and "properly equipped."  The third, 23 V.S.A. § 1243(a),
  provides that a motor  vehicle

    shall also be equipped with at least two lighted head lamps of 
    substantially the same intensity and with reflectors and lenses of
    a  design approved by the commissioner of motor vehicles, and with
    a  lighted tail or rear lamp of a design so approved.  A
    motorcycle . .  . [shall be] equipped with at least one lighted
    head lamp and at least  one lighted tail or rear lamp . . . .  A
    side car attached to such  motorcycle . . . shall be equipped with
    a light on the right side of  such side car visible from the front
    thereof.


  The fourth, 23 V.S.A. § 1248, provides that

    A person shall not use on any motor vehicle a rear lamp, unless 
    such lamp has been approved by the commissioner of motor 
    vehicles, nor unless it shows a clear red light visible from the
    rear,  and throws a clear white light over all parts of the rear
    number plate  on such vehicle in such a manner that all numerals,
    letters and marks  on such plate are clearly visible and legible
    for at least fifty feet from  the rear of such vehicle.

                                   A.

 


       In the case of defendant Steven Lussier, the officer stopped him
  because one of his  passenger car's two taillights was not functioning. 
  Focusing on the fact that §§ 1243 and 1248  refer to "a" taillight or rear
  lamp, defendant argues that the stop was unlawful because Vermont  law
  requires only one functioning taillight.

       We find no merit to this argument.  Taillights are standard equipment
  designed and  intended to illuminate the rear corners of motor vehicles
  automatically upon the simultaneous  illumination of the vehicle's
  headlights and upon application of the brake pedal.  Taillights are part 
  of the standard safety lighting equipment regularly installed by the
  manufacturer on all passenger  vehicles to ensure that the corners of the
  vehicles are safely illuminated at night.  Nothing in the  above-quoted
  statutes negates these obvious facts, notwithstanding the Legislature's use
  of the word  "a" in §§ 1243 and 1248.  See § 4(37) (employing plural "tail
  lamps" in defining terms "standard  equipment" and "properly equipped").

       Section 1243 requires "at least two head lamps of substantially the
  same intensity" for  motor vehicles, but requires only "at least one
  lighted head lamp and at least one lighted tail lamp"  for motorcycles or
  mopeds.  Rather than using the phrase "at least ___" to designate the
  number  of taillights required on motor vehicles, the section refers to "a"
  lighted tail or rear lamp of a  design approved by the commissioner.  Thus,
  when referring to taillights on motor vehicles, §  1243 focuses exclusively
  on design guidelines, not the required number of such lights.

       Section 1243 requires that light designs, including taillight designs,
  be of a type approved  by the commissioner of motor vehicles.  Department
  of Motor Vehicle regulations state that "all  lamps or lighting devices
  mounted on the exterior of a motor vehicle must be of a type approved  by
  the commissioner of motor vehicles, or must meet the standards prescribed
  in 49 CFR  571.108."  8 Code of Vermont Rules 14 050 022-78.  There are no
  specific designs approved by  the commissioner under the rules, but, not
  surprisingly, the cited federal regulations require two  red taillamps on
  the rear of passenger cars, one on each side of the vertical centerline at
  the same  height and as far apart as practicable.  See 49 C.F.R. § 571.108,
  Tables I-IV, at 300-03 (1998). 
 

 

  Section § 1243 may not have been artfully drafted, but its use of the
  indefinite article, in and of  itself, does not demonstrate that the
  Legislature intended to require motor vehicles to display only  one
  taillight.  See Craw v. District Court, 150 Vt. 114, 119, 549 A.2d 1065, 1069 (1988)  (presumption obtains against statutory construction that would
  lead to absurd results); In re A.C.,  144 Vt. 37, 42, 470 A.2d 1191, 1194
  (1984) (statutes are entitled to reasonable construction, but  it is
  essential that interpretation not be such that will render statute
  ineffective or lead to irrational  consequences).

       As with § 1243, § 1248 is not intended to designate the number of
  taillights required on a  motor vehicle, but rather to indicate how such
  lights should function.  Nothing in that section,  appropriately named
  "taillights," suggests that a passenger vehicle need only have one
  functioning  taillight.  Because defendant's passenger vehicle had only one
  functioning taillight and thus was  not properly equipped, the arresting
  officer had a reasonable and articulable basis for stopping the  vehicle to
  issue a citation or merely inform the operator of the problem.

                                     B.

       Our analysis in the second case is the same, but we reach the opposite
  conclusion.   According to the police affidavit in that case, defendant
  Robert Lussier was stopped because one  of the two white lights that was
  supposed to illuminate his truck's rear license plate was not  functioning. 
  Under § 1248, a rear lamp must throw a clear white light over all parts of
  the rear  license plate so that all of the plate's numbers and letters are
  clearly visible from at least fifty feet.  Here, the State presented no
  evidence that the numerals or letters on defendant's rear plate were  not
  illuminated to the degree required by § 1248.  Nor does the State dispute
  defendant's  contentions that he had one functioning rear license plate
  light that illuminated the plate to the  degree required by the statute.

       Examining the federal regulations under our earlier analysis, we find
  that they require  passenger vehicles to display only one rear white
  license plate lamp to illuminate the plate from  the top or sides.  See 49
  C.F.R. § 571.108, Tables I-IV, at 300-03.  Because the undisputed 

 

  evidence was that the rear license plate on defendant's vehicle was
  properly illuminated, the State  has failed to demonstrate a reasonable and
  articulable basis for the stop.

       The judgment in the case of Steven Lussier is affirmed; the judgment
  in the case of Robert  Lussier is reversed.

                                   FOR THE COURT:


                                   ________________________________________
                                   Associate Justice
 
------------------------------------------------------------------------------
                                  Footnotes

FN1.  The cases before us involve two brothers who both had prior DWI
  violations in the  small community in which they lived, and who were both
  stopped in the wee hours of the morning  for relatively minor motor vehicle
  violations.  Of course, we cannot know the actual motivation  of the
  arresting officers, and we do not mean to suggest that their motivation in
  these cases was  other than that stated in their affidavits.  We merely
  point out that the underlying motivation of  the officer cannot be known,
  and therefore is not the focus of the court's inquiry into whether the 
  stop was legal.

       The Chief Justice states that since the defendants in the instant
  cases each had a BAC  exceeding .08 at the time that they were stopped,
  "one would have to suspend the laws of  probability to believe - as the
  majority does - that Vermont law enforcement is making  investigatory stops
  of drivers `for any or no reason whatsoever.'" Chief Justice Amestoy's
  dissent,  post, at 7.  We fail to grasp the logic of this statement.  The
  fact that the defendants turned out  to have a BAC exceeding .08 tells us
  absolutely nothing about the basis of the stops involved or  whether law
  enforcement officers in Vermont make unlawful stops on occasion.  More 
  importantly, we make no judgment as to the extent Vermont law enforcement
  officers make  unlawful stops; rather, we decline to construe Vermont law
  in a manner that would strip  Vermonters of their constitutional right to
  be free from unwarranted governmental intrusion into  their private
  affairs.  See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780 (1991)
  (Article 11  protects everyone, particularly law-abiding citizens).


FN2.  Apparently, in the Chief Justice's view, allowing police to
  briefly detain and question  motorists for any or no reason at all would
  not be an affront to the constitutional privacy rights  of Vermonters
  because investigatory stops are not as intrusive as searches or seizures. 
  See Chief  Justice Amestoy's dissent, post, at 5-6.  This view ignores the
  reality that searches and seizures  often begin with an investigatory stop. 
  More importantly, both the Vermont Constitution and the  United States
  Constitution require that police have, at minimum, a reasonable and
  articulable  suspicion of wrongdoing before making even a brief,
  investigatory stop.  See State v. Siergiey,  155 Vt. 78, 80-81, 582 A.2d  at
  121 (1990).

------------------------------------------------------------------------------
                                 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.


                            Nos.  98-394 & 99-017

State of Vermont                               Supreme Court

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

Steven R. Lussier, Jr. 	                       April Term, 1999

State of Vermont

     v.

Robert R. Lussier


Mary Miles Teachout, J. (98-394)
Alan W. Cook, J. (99-017)

       Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer
  and Robert Butterfield, Deputy State's Attorneys, St. Johnsbury, for
  Plaintiff-Appellee.

       David C. Sleigh of Sleigh & Williams, St. Johnsbury, for
  Defendants-Appellants.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J., dissenting.   Contrary to the conclusion of the
  majority, I believe the  Vermont General Assembly could reasonably exclude
  from consideration in a civil license  suspension hearing a defendant's
  challenge to the underlying motor-vehicle stop, and did so in the  explicit
  language of 23 V.S.A. § 1205(h)(1).  I also believe the majority errs in
  deciding that  application of the exclusionary rule is necessary to deter
  unlawful police conduct in the context  of civil suspension proceedings.  I
  therefore respectfully dissent.


       As the majority correctly observes, the issues at a final civil
  license suspension hearing  "shall be limited" to five.  23 V.S.A. §
  1205(h) (emphasis added).  The first of these is "whether  the law
  enforcement officer had reasonable grounds to believe the person was
  operating, 

 

  attempting to operate or in actual physical control of a vehicle in
  violation of section 1201 of this  title."  Id. § 1205(h)(1).  Section 1201
  sets forth the prohibition against operating, attempting to  operate, or
  physically controlling a motor vehicle while under the influence of alcohol
  or other  drugs.  	

       As we recently explained in State v. Pollander, 167 Vt. 301, 308, 707 A.2d 1359, 1363  (1997), "[t]he plain language of 23 V.S.A. § 1205(g) (FN1) 
  indicates the Legislature's intent to limit  the issues that may be
  presented at a civil suspension hearing to those enumerated in the
  statute."  (emphasis added).   We noted in this regard that the summary
  suspension system was created for  the legitimate purpose of "protecting
  public safety by quickly removing 'potentially dangerous  drivers from the
  road.'"  Id. at 307-308, 707 A.2d  at 1363 (quoting State v. Strong, 158 Vt.
  56,  61, 605 A.2d 510, 513 (1992)).  Thus, limiting the cognizable issues
  at a civil suspension hearing  to those specifically enumerated "serves the
  goals of the statute by minimizing procedural delay."  Id. at 309, 707 A.2d 
  at 1363.  Accordingly, we held in Pollander that the defendant's attempted 
  assertion of the necessity defense was barred by the plain language of §
  1205(h), and that no  further analysis of legislative intent was necessary
  or proper.  See id.

       Defendants here, as in Pollander, raised a defense in a civil
  suspension proceeding that  was not among those enumerated in § 1205(h). 
  They claimed in each case that the arresting  officer had no reasonable and
  articulable suspicion that a motor vehicle violation was taking place,  and
  hence no valid basis for the stop.  See State v. Sutphin, 159 Vt. 9, 11,
  614 A.2d 792, 793  (1992).  Notwithstanding the absence of this issue among
  those set forth in § 1205(h), the majority  concludes that defendants were
  entitled to assert the claim because "the Legislature assumed that  a
  constitutional stop would be a necessary predicate" to finding that the
  arresting officer had  reasonable grounds to believe that the defendant was
  driving while intoxicated."  Ante, at 4  (emphasis added).

       As ably articulated in the Justice Skoglund's dissenting opinion, the
  majority's conclusion 

  

  does not withstand analysis.  Nothing on the face of the statute or
  logically implicit in the text  supports an assumption that the Legislature
  considered a legal stop to be a "necessary predicate"  to a reasonable
  belief that a person was driving under the influence.  The issue that
  defendants  attempted to raise  was whether the arresting officer had a
  reasonable and articulable basis to stop  them for motor vehicle
  violations.  This is an entirely different question from whether the
  officers  had reasonable grounds to believe that defendants were operating
  a vehicle in violation of § 1201,  i.e., while under the influence of
  alcohol.   The former is not logically subsumed within the latter. 
   	
       The majority's construction of § 1205(h)(1) strains logic and reason. 
  A plain reading of  the statute would limit the cognizable issue in these
  cases to whether the officers had reasonable  grounds, at the time they
  requested the blood alcohol tests, to believe that defendants had been 
  driving or in actual physical control of a vehicle while under the
  influence of alcohol.  And the  only facts logically relevant to this issue
  occurred after the motor vehicle stops, when the officers  observed signs
  of intoxication in both drivers.  Expanding the scope of a suspension
  hearing  beyond these circumstances to include claims relating to the
  initial motor-vehicle stop adds a new  category to § 1205(h) which is
  neither logically implied nor clearly necessary to its effective 
  implementation.  See State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946
  (1996) (Court must  not "read into a statute something which is not there
  unless it is necessary to make the statute  effective").  Indeed, a number
  of other courts have so concluded, interpreting similar or identical 
  statutes to hold that the validity of the underlying motor vehicle stop
  lies outside the scope of  issues to be determined  in a civil suspension
  proceeding.  See, e.g., Powell v. Secretary of State,  614 A.2d 1303,
  1305-1306 (Me. 1992); Beavers v. Department of Motor Vehicles, 851 P.2d 432,  434-35 (Nev. 1993); Commonwealth v. Wysocki, 535 A.2d 77, 79 (Pa.
  1987).

       Nor, apart from the statutory language, is there any overriding
  constitutional imperative  to conclude that the Legislature must have
  "assumed" that a valid motor vehicle stop was a  necessary predicate to a
  finding that the officer had reasonable grounds to believe the person was 
  DUI.  Although we have reserved the question whether due process rights may
  trump the statutory 

 

  limitations of § 1205(h), see Pollander, 167 Vt. at 307 n.4, 707 A.2d  at
  1362 n.4, we have  generally held that the exclusion of unlawfully seized
  evidence is not a personal constitutional  right, but a judicially created
  remedy.  See State v. Robinson, 165 Vt. 351, 354, 683 A.2d 1005,  1007
  (1996); see also Stone v. Powell, 428 U.S. 465, 486 (1976); but cf. State
  v. Oakes, 157  Vt. 171, 174, 598 A.2d 119, 121 (1991).  Moreover, the
  United States Supreme Court has never  seen fit to apply the exclusionary
  rule in a civil proceeding, nor -- until today -- has this Court.  See
  United States v. Janis, 428 U.S. 433, 447 (1976) (noting that Supreme Court
  "never has  applied [exclusionary rule] to exclude evidence from a civil
  proceeding, federal or state" and  refusing to extend rule to civil tax
  assessment proceeding); Immigration & Naturalization Serv.  v.
  Lopez-Mendoza, 468 U.S. 1032, 1051 (1984) (declining to extend exclusionary
  rule to federal  deportation proceeding); see also United States v.
  Calandra, 414 U.S. 338, 351-52 (1974)  (holding exclusionary rule
  inapplicable in grand jury proceeding).  Recognizing that the  exclusionary
  rule is designed primarily to deter unlawful police conduct, the Supreme
  Court  has  regularly applied a cost-benefit analysis in its decisions,
  balancing the potential deterrent effect  of excluding unlawfully seized
  but reliable evidence against the resulting costs to societal interests. 
  See Lopez-Mendoza, 468 U.S.  at 1041.  This Court has applied a similar
  test, while emphasizing  the importance of individual rights and liberties
  in any cost-benefit equation.  See Oakes, 157 Vt.  at 174, 598 A.2d  at 121.

       Although this Court has not previously applied such a cost-benefits
  analysis in the civil  suspension context, other state courts have
  considered the issue.  As the majority notes, these  decisions are divided,
  with a significant number determining that the societal costs of excluding 
  reliable and relevant evidence that licensed operators have driven
  intoxicated far outweigh the  incremental deterrent effect of applying the
  exclusionary rule.  See, e.g, Fishbein v. Kozlowski,  743 A.2d 1110,
  1118-1119 (Conn. 1999); Westendorf v. Iowa Dept. of Transp., 400 N.W.2d 553, 557 (Iowa 1987); Powell, 614 A.2d at 1306-1307; Riche v. Director of
  Revenue, 987 S.W.2d 331, 334-35 (Mo. 1999); Holte v. State Highway Com'r,
  436 N.W.2d 250, 252 (N.D. 

 

  1989).  The  reasoning of the courts in these decisions is persuasive. They
  conclude that the  imposition of an exclusionary sanction in a civil
  suspension proceeding adds only marginally to  its deterrent effect in the
  related criminal proceeding, while its costs in terms of public safety are 
  substantial.  See Fishbein, 743 A.2d at 1118-1119; Westendorf, 400 N.W.2d 
  at 557; Riche, 987 S.W.2d  at 335; Powell, 614 A.2d  at 1307; Holte, 436 N.W.2d  at 252.  As the Maine Supreme  Court succinctly explained:
 		
    Because the evidence has already been excluded from the criminal 
    proceeding, there is little additional deterrent effect on police 
    conduct by preventing consideration of the evidence by the hearing 
    examiner. The costs to society resulting from excluding the 
    evidence, on the other hand, would be substantial.  The purpose of 
    administrative license suspensions is to protect the public. 
    Because  of the great danger posed by persons operating motor
    vehicles while  intoxicated, it is very much in the public
    interest that such persons  be removed from our highways.

  Powell, 614 A.2d  at 1306-1307 (citation omitted).  

       Notwithstanding these sound and well-reasoned decisions from other
  states, the majority  concludes that application of the exclusionary rule
  in the civil suspension context is  "appropriate"  for three  reasons: (1)
  "to protect the core value of privacy" under the Vermont Constitution; (2) 
  "to promote the public's trust in the judicial system;" and (3) "to assure
  that unlawful police  conduct is not encouraged."  Ante, at 15.  I do not
  believe these reasons withstand scrutiny.

       First, the majority notes that any cost-benefit analysis must focus on
  the constitutional  right at stake, suggesting that the "core value of
  privacy" and "'sacred rights'" at issue here far  outweigh any
  countervailing public interest.   Ante, at 16 (quoting State v. Badger, 141
  Vt. 430,  452-53, 450 A.2d 336, 349 (1982)). Despite the rhetoric, the
  majority fails to focus on the  specific interest at issue. We have
  repeatedly observed that privacy is a fluid concept, contingent  upon the
  specific circumstances presented. Its scope must be determined by the
  "reasonable  expectation of privacy in the affairs or possessions intruded
  upon."  State v. Morris, 165 Vt. 111,  120, 680 A.2d 90, 96 (1996).  The
  "intrusion" in this, as in most civil suspension proceedings,  consists of
  an ordinary traffic stop, "a temporary and brief detention that is exposed
  to public 

 

  view."  State v. Zumbo, 157 Vt. 589, 592, 601 A.2d 986, 988 (1991). 
  Defendants here were  briefly detained and questioned.  Containers from
  inside their  vehicles were not searched without  a warrant, cf. State v.
  Savva, 159 Vt. 75, 86-87, 616 A.2d 774, 780-81  (1991); possessions were 
  not seized, nor confessions obtained,  pursuant to  coercive  police
  questioning, cf. Badger, 141  Vt. at 440-43, 450 A.2d at 342-44; residences
  were not searched based on warrants lacking  probable cause, cf. Oakes, 157
  Vt. at 172-73, 598 A.2d  at 120.  The degree  of  police intrusion  here did
  not begin to approach the level in these and other decisions in which this
  Court has  justifiably excluded illegally obtained evidence.  Thus, while
  automobile drivers may assuredly  assert the exclusionary rule  in a
  criminal action, where substantial liberty interests are at stake, 
  withholding that defense in a civil suspension proceeding simply does  not,
  as the majority claims,  implicate "the core value of privacy" embraced by
  our Constitution.  Ante, at 15.
          
       This conclusion is in no way altered when one considers "the public's
  trust in the judicial  system," the majority's second ostensible reason for
  holding the exclusionary rule to be  "appropriate" in  this context. Ante,
  at 15. Recognizing that such considerations are purely  speculative, I
  would nevertheless dispute the conclusion that reading the exclusionary
  rule into a  statute where it does not appear  in the text, rejecting the
  considered holdings of other states that  have declined similar invitations
  to judicial legislation, excluding otherwise reliable evidence of 
  intoxicated driving, and allowing inebriated drivers to return to the
  public highways with their  licenses intact, is the way to inspire public
  trust in our judicial system.   This Court has in the past  recognized "the
  serious threat posed to public safety by the frequency with which
  individuals,  while under the influence of intoxicating liquor, continue to
  operate motor vehicles on the public  highways."  State v. Martin, 145 Vt.
  562, 568, 496 A.2d 442, 447 (1985).  I respectfully suggest  that
  Vermonters, acting through their elected  representatives, could  reach a
  similar conclusion.  Therefore, to the extent relevant, fostering public
  trust in the judiciary clearly mandates  application of the civil
  suspension statute as it was written, without the judicial gloss imposed by 
  the majority.     


 

       Turning to its final reason, the majority suggests that application of
  the exclusionary rule  is necessary to "assure that unlawful police conduct
  is not encouraged."  Ante, at 15.  Expanding  on this point, the majority
  explains that if the exclusionary rule were not available in civil 
  suspension proceedings, law enforcement officers would have an incentive to
  make investigatory  stops "based on hunches or stereotypical beliefs or for
  any or no reason whatsoever." Ante, at 15.  The police stops  in these
  cases and in the two pending appeals that raise similar issues, State  v.
  Nickerson, Docket No. 98-530 and State v. Rash, Docket No. 98-531, do not
  provide even a  remote basis for the majority's alarm.  Indeed, in none of
  the cases is there even a suggestion that  the vehicles were stopped on the
  basis of "stereotypical beliefs" or "hunches."  See Nickerson,  (defendant,
  stopped at border after Canadian customs officials observed him to be
  visibly  intoxicated, revealed  BAC of .204); Rash (defendant, stopped
  after citizen informant reported  defendant driving intoxicated and
  described vehicle, tested for BAC of .160). Nor is there an  allegation
  that the defendants were unlucky intoxicated drivers caught in a web of
  "random stops"  that also netted sober drivers.  Since in each of the four
  cases considered the defendant had a BAC  of .08 or greater at the time of
  the stop, one would have to suspend the laws of probability to  believe --
  as the majority apparently does -- that Vermont law enforcement officers
  are making  investigatory stops of drivers "for any or no reason
  whatsoever."  Ante, at 15.        

       Before suggesting that the exclusionary rule must be applied in this
  context "'to avoid the  taint of partnership in official lawlessness,'"
  some showing of the "lawlessness" ought to be  required.  Ante, at 15
  (quoting Lopez-Mendoza, 468 U.S.  at 1060-61  (Marshall, J., dissenting)). 
  There is no evidence of it in these cases and, in my view, it is a great
  disservice to law  enforcement officials, and the public they serve, to
  conclude -- as the majority's exclusionary  rationale must -- that the
  potential risk of unlawful police conduct in Vermont far exceeds the 
  actual risk of drunk driving.  The majority disclaims that its holding has
  anything "to do with the  likelihood of whether police officers will act in
  good faith or how often they will make illegal  stops."  Ante, at 16.  The
  majority's expressed concern over police "'lawlessness,'" supra, at 15, 

 

  and  "unlawful government intrusions" supra, at 16, suggests otherwise.
  	
       Finally, I take exception to the majority's description of my
  rationale as one which would  allow police "to briefly detain and question
  motorists for any or no reason at all."  Ante, at 16 n.  2.   I assume the
  majority does not intend to replace accuracy with hyperbole, so I
  respectfully  emphasize that I do not believe police can detain and
  question motorists for any or no reason at  all. Systematic stops without
  particularized suspicion must adhere to the requirements of State v. 
  Record, 150 Vt. 84, 89, 548 A.2d 422, 425 (1988) (upholding sobriety
  checkpoints that satisfy  minimal guidelines).  

       It is conceivable, of course, that law enforcement officers undeterred
  by the exclusion of  evidence in a criminal DUI proceeding would engage in
  a pattern of stopping motorists "for any  or no reason at all" in the hope
  of securing evidence of intoxication for use in a civil suspension 
  hearing.  But there is nothing in the record to support the majority's
  claim that affirmance of the  judgments would lead to this result, or
  "strip Vermonters of their constitutional right to be free  from
  unwarranted governmental intrusion into their private affairs." Ante, at 5
  n.1. The majority  does not cite a single instance, much less any pattern,
  of unwarranted police intrusion into  Vermonters' private affairs (unless
  the majority is suggesting that the officer's mistaken judgment  concerning
  the requisite number of rear license plate lights on defendant Robert
  Lussier's vehicle  was such an invasion).  Absent such a showing of abuse,
  application of the exclusionary rule in  this context is unsupported by
  precedent, logic, or experience.

       This Court has often stressed that the purpose of civil suspension is
  to protect "public  safety by quickly removing potentially dangerous
  drivers from the roads," Strong, 158 Vt. at 61,  605 A.2d  at 513, that it
  is intended as a "remedial," not a criminal sanction, id. at 60, 605 A.2d  
  at 513, and consequently that due process rights which traditionally apply
  in a criminal proceeding  may be superseded in the civil context in the
  interest of saving lives.  See id. at 62, 605 A.2d  at  614  (license
  suspension is not criminal punishment invoking double jeopardy protection);
  Shaw  v. District Court, 152 Vt. 1, 7, 563 A. 2sd 636, 640 (1989) (no right
  to jury trial in civil 

 

  suspension proceeding).  The protection of individual privacy rights may
  well compel the  suppression of otherwise reliable evidence in a criminal
  prosecution, even at the cost of insulating  a guilty driver from criminal
  sanctions. The protection of privacy does not, however, require  insulating 
  intoxicated drivers from civil suspension of their driving privileges where
  the State has  relevant and reliable evidence of intoxication.  Or so, at
  the very least, the Legislature could  reasonably have concluded.

       For the foregoing reasons, therefore, I would affirm the judgments.  I
  am authorized  to  state that Justice Skoglund joins in this dissent.





                   _______________________________________
                   Chief Justice

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

FN1.  Former § 1205(g) has since been redesignated as § 1205(h).


------------------------------------------------------------------------------
                                 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. 98-394 & 99-017


State of Vermont                               Supreme Court

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

Steven R. Lussier, Jr. 	                       April Term, 1999

State of Vermont

     v.

Robert R. Lussier


Mary Miles Teachout, J. (98-394)
Alan W. Cook, J. (99-017)

       Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer
  and Robert Butterfield, Deputy State's Attorneys, St. Johnsbury, for
  Plaintiff-Appellee.

       David C. Sleigh of Sleigh & Williams, St. Johnsbury, for
  Defendants-Appellants.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J., dissenting.  My disagreement with the majority begins
  with its expansion  of the civil suspension process based on an unsupported
  interpretation of legislative intent. Viewed  dispassionately, 23 V.S.A. §
  1205(h) sets forth a comparatively clear and concise set of issues to be 
  considered in a civil suspension proceeding.   None of them concerns the
  legality of the motor-

 

  vehicle stop preceding the officer's request that a driver submit to a
  blood alcohol test.  Nor does the  "reasonable grounds" language of §
  1205(h)(1) support the majority's conclusion that the Legislature  must
  have "assumed" the legality of the stop.   Ante, at 4.  I must respectfully
  dissent.

       Section § 1205(h) provides that the issues to be considered in a
  summary suspension proceeding  "shall be limited" to five.  On this, there
  is no dispute.  The majority begins its analysis, however,  by observing
  that it finds "[n]othing in the language of § 1205 or the purpose behind
  the statute" to  suggest that the Legislature intended to preclude
  motorists from challenging license suspensions  based on the
  constitutionality of the underlying stop.  Ante, at 4 (emphasis added). 
  With this  summary dismissal of the restrictive language of §1205(h) and a
  puzzling assumption of legislative  purpose at the threshold, the majority
  takes its first misstep.  

       The principal objective of statutory interpretation is to discern and
  implement the  Legislature's intent, and the primary source of that intent
  is to be found in the plain and ordinary  meaning of the words chosen.  See
  In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102 (1997).   As noted,  the
  issues at a civil suspension hearing are limited to five: (1) whether the
  officer had reasonable  grounds to believe the person was operating a
  vehicle in violation of section 1201 of this title,    (FN1) (2) whether at
  the time of the request for the evidentiary test the officer informed the
  person  of the person's rights and the consequences of taking and refusing
  the test, (3) whether the person  refused to permit the test,  (4) whether
  the test was taken and the results indicated that the person's  alcohol
  concentration was 0.08 or more at the time of operation and whether the
  testing methods  were valid and reliable and whether the test results were
  accurate and accurately evaluated, and (5)  whether the

 

  statutory requirements for consenting to an evidentiary test were met.   23
  V.S.A.  §  1205(h)(1)-(5).

       The first issue to be determined in a civil suspension proceeding is
  whether the law  enforcement officer "had reasonable grounds to believe the
  person was operating, attempting to  operate or in actual physical control
  of a vehicle in violation of section 1201 of this title."   Id. § 
  1205(h)(1).  The majority reads this section to require reasonable grounds
  to suspect a DWI violation  before an officer can effect a motor vehicle
  stop.   This is the second misstep, as I will explain  below.  And, in
  light of this interpretation of subsection (h)(1), the majority concludes
  that "the  Legislature assumed that a constitutional stop would be a
  necessary predicate to finding 'reasonable  grounds' for suspicion of DUI."  
  Ante, at 4.  Because  I don't believe the majority's reading of  subsection
  (h)(1) is correct, I also do not believe the assumptions attributed to the
  Legislature are  valid.  

       Viewed on its own terms and in context, the only plausible meaning of
  the "reasonable  grounds" requirement is that the officer must have formed
  a reasonable basis to request a blood  alcohol test from the person under
  investigation, that is,  were there indicia of intoxication that would 
  support a request that the person submit to an evidentiary test?  Indeed,
  this has been the Court's  understanding since at least State v. District
  Court, 129 Vt. 212, 274 A.2d 685 (1971).  There the  Court  construed an
  earlier version of  § 1205 which provided, in terms nearly identical to the
  current  statute, for a "summary hearing [to] take evidence relating to the
  reasonableness of the officer's  belief that the respondent was operating a
  vehicle under the influence of intoxicating liquor or  drugs."   Id. at
  214, 274 A.2d  at 686.  Justice Barney, writing for the Court, explained the
  purpose  of this requirement as follows:

    [T]he legislature has taken steps to protect operators from
    arbitrary, capricious or  otherwise unreasonable demands that a
    test be taken.  This is accomplished by its  requirement that it
    be adjudicatively determined whether or not the belief of the 


 

    officer,  from which the request to test is generated, is a
    reasonable one .  . . .  The  duty of the court is to evaluate the
    facts and circumstances presented as persuading  the officer that
    he should request the respondent to take a test.

  Id. at 214-215, 274 A.2d  at 686-87 (emphasis added).  Thus, the plain
  meaning of the  "reasonableness" requirement is, and has been, clearly
  understood  for nearly thirty years as referring  to the request for an
  evidentiary test.   

       The current civil suspension statute retains the relatively simple and
  straightforward  requirement that an officer form a reasonable basis to
  believe that the driver was under the influence  of alcohol or drugs before
  requesting an evidentiary test.  See 23 V.S.A. § 1205(h)(1).  The 
  majority's construction replaces this limited prerequisite, substituting a
  more expansive inquiry into  whether the officer had reasonable grounds to
  believe the person was committing a crime, a motor  vehicle violation, or
  some other conduct that would justify the initial detention.  This new test
  is  created, despite the absence of any language in the statute  referring
  to the validity of the initial stop  or detention.  Expanding the statute
  in this manner contravenes fundamental principles of statutory 
  construction.  See State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946
  (1996) (Court must not  "read into a statute something which is not there
  unless it is necessary to make the statute effective").

       The statutory context of § 1205(h)(1) lends additional support to the
  conclusion that it serves  merely as a predicate for requesting an
  evidentiary test.  As noted, the question of whether the officer  had
  reasonable grounds to believe the driver was DUI is the first of five
  issues to be determined in  a civil suspension proceeding.  The remaining
  issues to be determined are whether the officer  informed the person of his
  or her rights and the consequences of taking and refusing the test, whether 
  the person refused to permit the test, whether the test was taken and
  indicated a BAC of .08 or 

 

  higher, whether the test results were accurate and accurately evaluated,
  and whether the requirements  of our implied consent law, see 23 V.S.A.
  §1202, were satisfied.  In short, beginning with the  officer's basis (or
  "reasonable grounds") for requesting blood alcohol testing, every
  subsequent issue  set forth in § 1205(h) relates to the administration of
  the test.

       The Legislature's intent to limit the reasonableness inquiry to the
  basis of the officer's request  for blood alcohol testing is  evident, as
  well,  from the summary and informal nature of the  proceeding.  The
  statute expressly provides that civil suspension hearings "shall be summary 
  proceedings."  23 V.S.A. § 1205(j); see also State v. Stearns, 159 Vt. 266,
  271, 617 A.2d 140, 142  (1992) ("The Vermont civil suspension system is
  intended to work in a speedy and summary  fashion.").  To this end, the
  rules for civil suspension proceedings provide for procedural informality, 
  and the rules of evidence generally do not apply.   See D.C.C.R. 80.5(f);
  Stearns, 159 Vt. at 271,  617 A.2d  at 142-43.  The Legislature has
  specifically provided that affidavits of law enforcement  officers and
  chemists are admissible to prove the State's case.  See 23 V.S.A. §
  1205(j).   The statute  further specifies that a law enforcement officer's
  affidavit "shall be in a standardized form for use  throughout the state
  and shall be sufficient if it contains the following statements."  Id. §
  1205(b)  (emphasis added).   The section then sets forth seven separate
  criteria, including the certification of  the officer,  the results of the
  test and the time and date it was taken, and a statement indicating that 
  the officer "had reasonable grounds to believe the person was operating,
  attempting to operate or in  actual physical control of a vehicle in
  violation of section 1201."  Id. § 1205(b)(3).  Again the  statutory
  requirements focus primarily upon the qualifications to administer an
  appropriate  evidentiary test.  

       As this Court explained in Stearns,  "[t]he system is structured so
  that the State can prove its 

 

  case without taking the arresting officer from law enforcement duties to
  testify."   159 Vt. at 271,  17 A.2d  at 143.  This will no longer be the
  case.  Opening the civil hearing to constitutional  challenges to the
  underlying motor vehicle stop will effectively preclude the State from
  relying on  an officer's affidavit.  What once was sufficient under
  §1205(h) will no longer suffice.  The State will  be compelled to call the
  officer as a witness, and the "summary proceedings" contemplated by the 
  statute will only exist in memory.  Indeed, absent any requirement that
  defendants disclose the issues  or testimony they intend to present at the
  hearing, the State may be compelled to keep officers on  stand-by status in
  case there is a challenge to the validity of the underlying stop.  See
  D.C.C.R.  80.5(e); Stearns, 159 Vt. at 271 n.2, 617 A.2d  at 143 n.2.  It is
  difficult to imagine a result more at  odds with the language and purpose
  of the civil suspension  statute.
 	
       In all but one of the cases from other jurisdictions relied upon by
  the majority, the decisions  were based upon operative language that does
  not appear in Vermont's civil suspension statute.   Pooler v. MVD, 755 P.2d 701 (Or. 1988) is typical.  The civil suspension hearing there was limited 
  to several issues, including whether "[t]he person, at the time the person
  was requested to submit  to a test . . .  was under arrest for driving
  while under the influence of intoxicants."  Id. at 702.   That 
  requirement,  not found in our statute, formed the basis of the Oregon
  court's decision.   As the court  explained: "[T]he arrest which is a
  prerequisite to a lawful suspension . . .  must be a valid arrest  .  .  . 
  .  If the arrest must be valid, it follows that the scope of the
  administrative hearing before the  hearing officer included the question of
  the validity of the arrest."  Id. at 702-703.  Similar statutory  language
  formed the basis of the decisions in People v. Krueger, 567 N.E.2d 717,
  722-23 (Ill. App.  Ct. 1991) (holding that "under arrest" requirement of 
  civil suspension statute required finding of  valid arrest);  (Watford v.
  Bureau of Motor Vehicles, 674 N.E.2d 776, 778 (Ohio Ct. App. 1996)

 

  (construing "under arrest" provision of civil suspension statue to meant
  that "a lawful arrest,  including a constitutional stop, must take place");
  and Gikas v. Zolin, 863 P.2d 745, 749 (Cal. 1993)  (noting that "under
  arrest" provision of civil suspension statutes means that "the underlying
  arrest  must have been lawful"). (FN2)   The one exception cited by the
  majority is Brownsberger v. MVD,  460 N.W.2d 449 (Iowa 1990).  There,
  however, the court's decision was based upon a specific statute  permitting
  a defendant to reopen a civil suspension when a court in a criminal action
  rules that the  arresting officer lacked reasonable grounds.  The court
  noted that the statute had effectively  superseded an earlier decision
  holding that the exclusionary rule did not apply in civil suspension 
  proceedings.  See id. at 451.  Thus, these cases are of little assistance
  in our quest to understand the  legislative intent of our civil suspension
  statute.

       With the majority's  ruling,  the summary civil procedure envisioned
  by the Legislature will  now be transformed into a full blown trial on
  issues not appearing in the civil suspension statute.

 

  It may be that there will cease to be value in pursuing a civil suspension. 
  In Stearns this Court  rejected the defendant's claim that the State was
  collaterally estopped from relitigating in the  criminal case the court's
  earlier ruling in the civil suspension hearing on the issue of defendant's 
  alleged refusal to take the test. See 159 Vt. at 272, 617 A.2d  at 143.  We
  suggested that, in civil  suspension hearings, it was the State's decision
  whether to risk that a defendant's license would  not be suspended because
  an officer's affidavit could not adequately convince the court in the face 
  of defendant's live testimony on an issue.  Id. at 271-72, 617 A.2d  at 143. 
  To hold otherwise,  the Court observed, would force the State "to try the
  criminal case, with live witnesses, in the  civil suspension proceeding,"
  which would "nullify the summary suspension proceeding that the 
  Legislature enacted."  Id.  How does that analysis of our civil suspension
  statute comport with  today's ruling?   

       For all of the foregoing reasons, therefore,  I am unpersuaded that
  the civil suspension statute  permitted defendants to challenge the
  validity of the underlying motor vehicle stops.   I am equally 
  unpersuaded, for the reasons discussed in the dissenting opinion of the
  Chief Justice, of any  overriding constitutional imperative to read such a
  requirement into the statute.  Accordingly, I join  in his dissent.  I
  would affirm the judgments.  I am authorized to state that the Chief
  Justice joins in  this dissent. 
                                                                

                          -------------------------

                          Associate Justice

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


FN1.  28 V.S.A. § 1201 prohibits driving under the influence of
  intoxicating liquor or other  substances that impair the ability to drive
  safely. 

FN2.  Even these decisions have not gone unchallenged.  In Fishbein v.
  Kozlowski, 743 A.2d 1110 (Conn. 1999), the Connecticut Supreme Court
  recently rejected the argument that the  "probable cause to arrest" element
  of its civil suspension statute incorporated a requirement that  the
  initial investigative stop of the driver be lawful.  As the court
  explained:

    We accordingly conclude . . .  that the legislature did not intend
    that the lack of  a reasonable and articulable suspicion to
    justify an initial investigative stop would  be a basis for
    overturning the commissioner's decision if the commissioner finds 
    that, subsequent to the stop, "the police officer  [had] probable
    cause to arrest the  person for operating a vehicle under the
    influence of intoxicating liquor" .  .  .   Any interpretation
    that prevented the commissioner from suspending the license of  a
    person who was stopped without a reasonable and articulable
    suspicion, but  whom the police subsequently had probable cause to
    arrest for driving while  intoxicated, would undermine the primary
    purpose of the statute, which is "to  protect the public by
    removing potentially dangerous drivers from the state's  roadways
    with all dispatch compatible with due process." Nothing in the
    legislative  history . . .  suggests a contrary conclusion. 

  Id. at 1116-1117 (citations omitted).