State v. Roya

State v. Roya (2000-100); 174 Vt. 451; 807 A.2d 371

[Filed 12-Jun-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-100

                             OCTOBER TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Chittenden Circuit
Kenneth G. Roya	                       }
                                       }	DOCKET NO. 3360-6-99 Cncr

                                                Trial Judge:  Brian Burgess

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


       Defendant Kenneth G. Roya appeals from a conviction of driving under
  the influence of  intoxicating liquor (DUI).  He claims the standard form
  used by police during the DUI processing  misinformed him of his right to
  consult an attorney before deciding to submit to a breath test, and, on 
  this basis alone, seeks reversal of his conviction and suppression of the
  breath test evidence.  He  further argues that he should not be required to
  prove that he was prejudiced by the misinformation  in order to obtain this
  result. We affirm. 

       Defendant was arrested on suspicion of DUI, taken to the police
  station for processing, and  was asked to submit to a breath test. 
  Pursuant to a form in use at the time, designed to advise  motorists of
  their right to consult with an attorney prior to deciding whether to submit
  to a breath  test, defendant was told:  "You have the right to talk with a
  lawyer before deciding whether or not to  submit to a test.  If you cannot
  afford a lawyer and want one, a Public Defender will be contacted for  you,
  at the State's expense."  

       Indicating that he understood his rights, defendant chose not to
  consult an attorney, and  declined to take the test.   A year and a half
  later he was charged with DUI. (FN1)  During that period,  this Court held
  in State v. Madonna, 169 Vt. 98, 102, 726 A.2d 498, 501 (1999), that the
  form used  to advise Roya and other DUI defendants of their right to
  consult an attorney before submitting to a  breath test failed to
  adequately advise defendants of their right to contact a public defender 
  regardless of their financial position.  In Madonna we found that, because
  the form implied by  omission that the option to consult an attorney,
  regardless of one's financial position, did not exist, a  motorist could
  not "reasonably be expected to infer that he or she has a right to contact
  a public  defender regardless of financial position." Id. 

 

       After charges were filed against him, defendant was assigned counsel
  and moved to suppress  evidence of his refusal to take the breath test as a
  product of a "Madonna violation" - that he was not  told that he had "the
  right to speak with a public defender whether or not he could afford a
  lawyer."   Defendant did not claim he could afford an attorney, however,
  nor did he claim that he would have  submitted to a breath test had he
  spoken to the on-call attorney.  Indeed he responded affirmatively  when
  the court asked if he agreed with the statement that he was "not prejudiced
  by receiving the  incomplete information because [he] had just been
  processed for DWI some 30 days prior - [he] had  talked to a lawyer, [he]
  realized that a public defender was available . . . and that based on [his] 
  income [he] would have known that the public defender was available."  The
  sole basis asserted by  defendant for suppression is the misinformation
  included in the form.

       Whether the trial court erred in concluding that defendant was
  required to demonstrate  prejudice is a question of law which we review de
  novo.  See State v. Pollander, 167 Vt. 301, 304,  706 A.2d 1359, 1360
  (1997).  Defendant relies on several cases where we held that giving
  incorrect  advice, or failing to give advice at all, regarding a suspects's
  right to counsel warrants suppression of  the subsequent breath test.  In
  State v. Duff, 136 Vt. 537, 540, 394 A.2d 1145, 1146 (1978) we found  that
  police have a duty to inform drivers processed for DUI and held that
  "failure of law enforcement  officers to advise the defendant of his right
  to counsel . . . mandates a suppression of the results of  the breath
  test."   In State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981), we
  expounded on  our holding in Duff and found that in addition to the
  requirement that defendants be informed of  their right to consult an
  attorney, they must also be informed "that a needy person may consult with 
  an attorney at public expense" before deciding whether to submit to a
  breath test.  These cases made  no suggestion that suspects must show they
  were misled or prejudiced by the misinformation. "When  a driver makes a
  complicated decision, without the option of consulting counsel as is his
  statutory  right, he should not be bound by that decision, since he might
  with counsel have made it differently."  Duff, 136 Vt at 540, 394 A.2d  at
  1146.  We do not believe, however, that Duff and Gracey go far  enough to
  support defendant's proposition that he need not show he was prejudiced by
  the  misinformation as the issue of prejudice was not raised in either of
  these cases.

       In relying on Duff and Gracey, defendant dismisses as anomalous our
  more recent cases  requiring a DUI defendant show prejudice under these
  circumstances.    In State v. West, 151 Vt.  140, 142, 557 A.2d 873, 875
  (1988), we noted that "[a]s a general rule, error does not require 
  reversal unless it is prejudicial to the defendant."  In West, we rejected
  defendant's claim that the  results of the breath test should have been
  suppressed, finding that although the defendant was given  erroneous
  misinformation prior to taking the test, there was no prejudice to
  defendant because he  was aware of the correct information.  Id.  We
  further found that "[t]he burden of proving prejudicial  error rests with
  the defendant."  Id.  In State v. Hamm, 157 Vt. 666, 599 A.2d 1048 (1991)
  (mem.),  we took note of the fact that missing from defendant's claim
  before the lower court, or in his brief,  was any assertion that the
  deficiency in the form had any bearing on his refusal to take the test, and 
  held that  the defendant had the burden of production on the issue of
  prejudice.  Id. at 667, 599 A.2d   at 1048-49.   There, we held that
  defendant  has to "introduce some evidence that any deficiency in  the
  advice he received was prejudicial."  Id. at 667, 599 A.2d  at 1049.  In
  State v. Lynaugh, 158 Vt. 

 

  72, 74, 604 A.2d 785, 786 (1992) we held that misinformation about the
  right to counsel did not  warrant suppression of a breath test result where
  "[d]efendant presented no evidence that he was  prejudiced by the receipt
  of incomplete information in making his decision to waive assistance of 
  counsel before taking the test."

       Requiring  DUI defendants to show they were prejudiced by the
  misinformation is consistent  with our prior precedent.  To sustain a
  burden of production on the issue of prejudice under these  circumstances
  defendant must show the deficiency in the form has some bearing on the
  refusal to  take the test or that his decision would have been different if
  he had been correctly advised.  See  Hamm, 157 Vt. at 667, 599 A.2d  at
  1049.  In this case, defendant made a decision to submit to a  breath test
  knowing that he was eligible for a public defender and entitled to speak
  with an attorney  before making the decision.  Defendant had been processed
  for DUI only one month before, and had  invoked his right to consult with
  an attorney.  At that time, he did, in fact, receive the advice of a 
  public defender before deciding not to submit to a breath test.  Moreover,
  the defendant had  previously been approved to receive public defender
  services in connection with another DUI charge.  The misinformation we
  found erroneous in Madonna impinged on the rights of a person who was  not
  eligible for public defender services - someone who could afford an
  attorney.  Defendant has  made no showing that there was any causal
  connection between the misinformation in the form and  his refusal to take
  the test.  Failure to claim or demonstrate some minimal level of prejudice
  prevents  suppression of the breath test in this case.  

       In the alternative, defendant argues that if we are going to engage in
  a case-by-case inquiry  into whether or not the defendant was prejudiced by
  the misinformation, the burden should be on the  State to show, by clear
  and convincing evidence, that the misinformation did not induce the waiver 
  and there was no prejudice.  This issue was not raised before the trial
  court.  We, therefore, decline to  address this issue on appeal.  See State
  v. Devine, 168 Vt. 566, 568-69, 719 A.2d 861, 864 (1998)  (declining to
  address claim which was not raised before the trial court).

       Affirmed. 


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                                 Dissenting


       JOHNSON, J., dissenting.   In State v. Madonna, 169 Vt. 98, 726 A.2d 498 (1999), we  unanimously held that failure to advise a DUI suspect that
  his right to counsel included the right to  speak to a public defender,
  regardless of his income, was a violation of the statutory right to consult 
  counsel before taking a breath test.  See 23 V.S.A. § 1202(c).  The
  defendant in Madonna was not  required to prove prejudice as a result of
  the mis-advice and we affirmed the dismissal of the civil  suspension
  because incomplete advice had been given.  Here, in a criminal prosecution,
  defendant  sought to suppress his refusal to take a breath test on the
  grounds of the Madonna violation.  The  majority holds that the Madonna
  violation is meaningless unless defendant can show he was  prejudiced by
  the violation.  Because I believe this holding undervalues the statutory
  right to counsel  in these circumstances, and gives police officers no
  incentive to give the statutorily mandated advice,  I respectfully dissent.

 

       The decision in Madonna relied on prior cases in which we have held
  that law enforcement  officers in DUI stops play a critical role in the
  implementation of the statutory right to counsel.  See  Pfeil v. Rutland
  District Court, 147 Vt. 305, 309-10, 515 A.2d 1052, 1055-56 (1986) (lack of 
  meaningful opportunity to consult with counsel prevents finding of
  voluntary refusal in civil  proceedings); State v. Gracey, 140 Vt. 199,
  201, 436 A.2d 741, 743 (1981) (form read to DUI  suspect must state that a
  needy person can consult with an attorney at public expense); State v.
  Duff,  136 Vt. 537, 540, 394 A.2d 1145, 1146-47 (1978).  As we noted in
  Duff, the only way the right is  safeguarded is if the DUI suspect learns
  the extent of the right from the police officer during  processing.  136
  Vt. at 540, 394 A.2d  at 1146.  We have not required DUI suspects to discern
  this for  themselves.

       Moreover, for the reasons I stated in my dissenting opinion in State
  v. Hamm, 157 Vt. 666,  667, 599 A.2d 1048, 1049 (1991) (mem.), requiring
  defendants to prove that they would have made a  different decision
  following consultation with counsel on refusal invites self-serving
  testimony that  is not probative on the issue of prejudice, and as
  defendant argues, is wholly inconsistent with an  intelligent, informed
  waiver of rights.  Therefore, I respectfully dissent.



                                        BY THE COURT:

Dissenting:


_________________________________	_______________________________________
Denise R. Johnson, Associate Justice	Jeffrey L. Amestoy, Chief Justice

                                        _______________________________________
                                        John A. Dooley, Associate Justice

                                        _______________________________________
                                        James L. Morse, Associate Justice

                                        _______________________________________
                                        Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  The district court dismissed an earlier charge with prejudice.  The
  state appealed, and this  Court reversed to allow for a refiling.  See
  State v. Roya, 169 Vt. 572, 572, 730 A.2d 600, 601  (1999) (mem.).