State v. Westcom

State v. Westcom (2001-075); 173 Vt. 561; 795 A.2d 1146

[Filed 24-Jan-2002]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-075

                             JANUARY TERM, 2002


State of Vermont	               }	APPEALED FROM:
                                       }
     v.	                               }
                                       }	District Court of Vermont,
                                       }	Unit No. 3, Franklin Circuit
Kirt D. Westcom	                       }
                                       }	DOCKET NO. 141-11-00 Frcs

                                                Trial Judge: Dean B. Pineless

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


       Defendant Kirt Westcom appeals from the suspension of his license in a
  civil proceeding in  Franklin District Court.  Defendant argues that the
  district court erred in ruling that the State did not  need to prove he was
  operating the vehicle at the time he was arrested for driving while
  intoxicated  (DWI).  We affirm because defendant refused to submit to a
  breath test.

       On November 18, 2000, a Vermont State Police officer arrived at the
  scene of a one car  accident in Enosburg, Vermont.  He observed defendant
  walking around the car, which had gone off  the road.  When asked by the
  officer, defendant stated that he was the owner of the vehicle, but not 
  its operator, and refused to offer the name of the operator.  The officer
  noted a strong odor of  intoxicants and administered field sobriety tests. 
  Based in part on those observations, the officer  requested that defendant
  submit to a breath test.  Defendant declined and was processed for DWI.  
  The State sought to suspend defendant's license pursuant to 12 V.S.A. §
  1205 at a hearing held on  January 29, 2001.  At the hearing, the court
  concluded that the officer was reasonable in his belief  that defendant was
  the operator of the vehicle and therefore suspended defendant's license.

       On appeal, defendant contends that non-operation is a valid defense to
  a civil suspension  hearing and that the State did not offer any evidence
  that defendant was the operator of the vehicle.   Under 23 V.S.A. §
  1205(h), the issues at a final civil suspension hearing are limited to:

         (1) whether the law enforcement officer had reasonable
    grounds to  believe that 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 substantially as
    set out in subsection 1202(d) of this  title;

         (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 operating,  attempting to operate or being in actual
    physical control of a vehicle in  violation of section 1201 of
    this title, 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
    were complied  with.

  (Emphasis added.)  The district court is required to suspend a person's
  license upon finding either  that (1) the law enforcement officer had
  reasonable grounds to believe the person was operating a  vehicle while
  intoxicated, but the person refused to submit to a test, or (2) the officer
  had reasonable  grounds to believe the person was operating a vehicle while
  intoxicated, the person submitted to a  test, and the test result indicated
  that the person's alcohol concentration exceeded the statutory limit  "at
  the time the person was operating" the vehicle.  23 V.S.A. § 1205(i).

       We recently confronted the second of these grounds for suspension in
  State v. Green, 12 Vt. L.  W. 401, 402 (2001).  In that case, we held that
  the State did have to prove operation when the  defendant submitted to a
  breath test after being stopped for DWI.  We stated, however, that "[i]f
  the  person refuses to take the test, it is the refusal itself, not
  operation while intoxicated, that is the basis  for any license
  suspension."  Id.  This case presents precisely this scenario and thus the
  only issue for  the district court to determine was "whether or not the
  belief of the officer, from which the request  for a test is generated, is
  a reasonable one."  State v. District Court, 129 Vt. 212, 214, 274 A.2d 685,  686 (1971).  Because defendant refused to submit to a breath test,
  the state does not need to prove he  was the operator of the vehicle. 
  Therefore, the court's determination, based on the officer's  affidavits,
  that the officer was reasonable in his belief that defendant was the
  operator of the vehicle  was sufficient to justify the suspension.

       Affirmed.

                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice