State v. Dimick

State v. Dimick (2001-152); 173 Vt. 547; 790 A.2d 435

[Filed 26-Dec-2001]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-152

                             DECEMBER TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 3, Caledonia Circuit
Robert B. Dimick	               }
                                       }	DOCKET NO. 10-3-01 Cacs

                                                Trial Judge: Mark J. Keller

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


       The Caledonia District Court granted defendant's motion to exclude
  evidence in a civil  suspension hearing for operating a vehicle under the
  influence of intoxicating liquor on the  grounds that the arresting officer
  violated Vermont State Police Rules & Regulations, Operational  Policies &
  Procedures, when he failed to make a videotape of the roadside stop.  The
  State  appeals that decision arguing that defendant had no constitutional
  nor statutory right to have the  roadside stop, and ensuing sobriety tests,
  videotaped by the arresting officer.  We agree and  reverse.
    
       The uncontested facts in the case are as follows.  On February 23,
  2001, at approximately  11 p.m., a state police officer witnessed defendant
  fail to stop at a stop sign, in violation of 23  V.S.A. § 1048.  The
  officer activated his blue lights and pulled defendant to the side of the
  road.   After observing several signs that defendant had been drinking,
  including limited dexterity when  handing the officer his license and
  registration, mumbling, bloodshot, watery eyes and the smell  of
  intoxicating liquor, the officer asked defendant to complete a series of
  field sobriety tests  which defendant failed.  Defendant was arrested and
  taken to the station for DUI processing.  A  breath test revealed a blood
  alcohol concentration of .118.   The officer's cruiser was equipped  with a
  mobile video recording (MVR) unit but because the unit was broken, the
  officer did not  videotape the incident.  

       Defendant was arraigned on, and pled not guilty to, driving under the
  influence in violation  of 23 V.S.A. § 1201(a)(1).  Prior to a March 23,
  2001 civil suspension hearing, defendant filed a  motion to exclude all
  evidence derived from the stop of defendant's vehicle, asserting that the 

 

  officer's failure to videotape the roadside stop and tests violated
  defendant's due process rights  and breached a statutory duty to "preserve
  and produce" a recording that might provide  exculpatory evidence.

       At the hearing, defendant abandoned his constitutional argument. (FN1) 
  Relying instead  on Vermont State Police Rules & Regulations, Operational
  Policies & Procedures, defendant  claimed the polices and procedures create
  a legal obligation for officers to videotape roadside  stops and the
  ensuing tests.  Defendant argued that the officer's failure to keep the MVR 
  equipment in working order, and subsequent use of the cruiser despite the
  knowledge that the  MVR equipment was not working, amount to negligence. 
  The trial court granted defendant's  motion to exclude evidence, concluding
  that Vermont State Police Rules & Regulations,  Operational Policies &
  Procedures, § 5, Article 10, 3.1 and 4.1 create a duty for officers to 
  videotape stops.

       We disagree.  The error in the court's analysis is that it assumes the
  regulations at issue are  either explicitly or implicitly premised on a
  statutory duty to videotape every major motor vehicle  and criminal
  enforcement stop.  While there is no doubt that the Legislature could
  compel the  Vermont State Police to videotape all such stops, and indeed,
  provide sanctions for the failure to  do so, we cannot find any basis, in
  statute or regulation, for concluding the legislature intended  the result
  reached by the trial court in this case.  

       In interpreting a statute our primary goal is to effectuate the intent
  of the legislature.   Tarrant v. Dep't of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999).  We look first to the plain  meaning and where the intent
  of the legislature is apparent from the language we will enforce the 
  statute "according to its terms without resorting to statutory
  construction."  Id.  Title 23 § 1203 (j)  and (k)  provide in relevant
  part:

    (j) A videotape made of the alleged offense and subsequent
    processing  may be erased or destroyed by the law enforcement
    agency no earlier  than 90 days after the date the videotape was
    made. . . .   (k) A copy of a videotape made of the alleged
    offense shall be provided  to the defendant within ten days after
    the defendant requests the copy  and pays a $15.00 fee . . . .

 

  While these provisions clearly provide a procedure by which the State will
  release a videotape  made of the alleged offense to the defendant, and
  guidelines for when it is appropriate to discard  that evidence, they
  neither require that a videotape be made nor provide sanctions if it is 
  not. (FN2)   

       The Vermont State Police Rules & Regulations, Operational Policies &
  Procedures § 5,  Article 10 provide in pertinent part: 

    3.0 PROCEDURE 
        3.1 Members assigned to patrol vehicles equipped with MVR 
        equipment shall ensure that all required pre-operational checks 
        are performed in accordance with the manufacturer's 
        recommendations.  
        3.2 Members using MVR equipment shall record the following
        situations whenever possible :	
        . . . .(A) Major motor vehicle and criminal enforcement stops. . .
    4.0 OPERATION
        4.1 Responsibilities of Operators
        (A) Members will be responsible for operation, care and 
        maintenance of the assigned MVR equipment . . . 
        (B) Prior to each shift, members shall determine that MVR 
        equipment is working satisfactorily. . . 
        (C) A shift supervisor will be notified . . . if any problems  are
        discovered with operation of the MVR equipment. 

  (emphasis added).  Again, nothing in these rules suggests that taping
  roadside stops or DUI  sobriety tests are mandatory.  To the contrary, the
  Rules indicate that taping should take place  "whenever possible," and
  otherwise merely require that officers keep track of whether the MVR 
  equipment is working, so that when it is not, their supervisors will be
  made aware of it and repairs  will be made. 

       "The most appropriate means of prescribing rules to augment citizens'
  due process rights is  through legislation."  Gorton, 149 Vt. at 606, 548 A.2d  at 422.  Because the legislature has

 

  chosen not to require officers to tape all major roadside stops, this Court
  will not create such a  requirement by "judicial fiat."  See id.


       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



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                                  Footnotes


FN1.  In withdrawing his constitutional claim, defendants counsel stated "I
  think it is absolutely  right that the Constitution doesn't require
  taping." Although the issue is not before us, we note that  defendant's
  view of the law is consistent with the Court's holding in State v. Gorton,
  149 Vt. 602,  606, 548 A.2d 419, 422 (1988)("This Court has never
  previously held that the Vermont Constitution  mandates tape-recording of a
  suspect's voluntary statements as a requirement of due process, nor  does
  our reading of the Vermont Constitution find any support for defendant's
  position.").    

FN2.  Defendant makes additional arguments, not relied upon by the court
  below, that V.R.Cr.P.  16(e), and D.C.C.R. 80.5(e) create a duty of the
  arresting officer to record the roadside stop with his  MVR.  V.R.Cr.P.
  16(e), and D.C.C.R. 80.5(e) are rules relating to discovery and all provide
  that a  copy of the videotape made of the alleged offense shall be provided
  to the defendant.  These rules  explicitly refer to discovery in a criminal
  case or civil suspension.  Rather than require an officer to  create a MVR,
  they ensure that if such a tape exists, it will be provided to the
  defendant.