State v. Velez

State v. Velez (2002-082); 175 Vt. 23; 819 A.2d 712

2003 VT 1

[Filed 03-Jan-2003]

       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.

                                  2003 VT 1

                                No. 2002-082

  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 1, Windham Circuit

  Jorge Velez	                                 September Term, 2002


  John P. Wesley, J.

  Stuart G. Schurr, Department of State's Attorneys, Montpelier, for
    Plaintiff-Appellant.

  John C. Mabie of Gale, Corum & Mabie, Brattleboro, for Defendant-Appellee.


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


       ¶ 1.  JOHNSON, J.   The State takes this interlocutory appeal,
  pursuant to V.R.A.P. 5(b)(1), from a Windham District Court decision
  granting defendant Jorge Velez's motion to suppress his evidentiary breath
  test results.  Defendant argued that he was deprived of the right to
  counsel that 23 V.S.A. § 1202(c) establishes for DUI detainees because the
  on-call public defender contacted by the arresting officer refused to speak
  with him.  In light of this Court's decision in State v. Gilman, __ Vt. __,
  787 A.2d 1238 (2001), the District Court granted defendant's motion to
  suppress on the grounds that even if the police act reasonably, the State
  denies the detainee's right to counsel if the public defender's office does
  not comply with its statutory mandate to provide twenty-four hour legal
  assistance to DUI suspects.  We affirm.
   
       ¶ 2.  On February 4, 2001, defendant was stopped for drunk driving. 
  During the course of processing defendant for Driving Under the Influence
  (DUI), Vermont State Trooper Matthew Nally read defendant the standard
  "implied consent" processing form used for DUI stops that explains the
  rights that detainees have when asked by Vermont law enforcement officials
  to submit to a breath test.  The information provided to DUI detainees
  operates as a supplement to the Miranda warnings, explaining the
  implications of Vermont's implied consent and criminal refusal laws.  See
  State v. Morale, 13 Vt. L.W. 229, 231 (2002).  Vermont's "implied consent"
  warning, as read to defendant by the processing officer, includes the
  following standard language: "You have the right to talk with a lawyer
  before deciding whether or not to submit to a test.  If you want a lawyer a
  Public Defender will be contacted for you at the state's expense,
  regardless of your income, or an attempt will be made to contact an
  attorney of your choice at your expense." 

       ¶ 3.  Defendant told the officer that he understood these rights and
  that he wished to consult with an attorney before making his decision.  The
  trooper telephoned the public defender who was on-call at the time and
  stated that a DUI suspect wished to speak with her.  The public defender
  asked the officer if he had run a motor vehicle record check, and he
  replied that he was not obligated to provide that information and that he
  would not do so.  The public defender then ended the call, refusing to
  speak with defendant. 
   
       ¶ 4.  The transcript of the processing of Velez for DUI shows that
  defendant was bewildered and panicked as a result of the inconsistency
  between the trooper's statements, first, that as a DUI detainee, Velez had
  a right to consult with an attorney, but second, that the attorney
  contacted was refusing to speak with him.  Velez repeatedly stated that
  "I'm very confused. I'm at a loss."  He insisted, "I can't do anything
  without an attorney advising me."  He asked the officer, "What's the right
  thing to do?  Can I just ask you as a human being."

       ¶ 5.  Trooper Nally could not give defendant legal advice.  He read to
  defendant again from the standard processing form, and repeated the
  question "Will you give a sample of your breath as evidence?"  At the
  expiration of the thirty-minute period after which a DUI suspect is
  required to decide whether to submit to an evidentiary test under §
  1202(c), Velez provided a breath sample. 

       ¶ 6.  The State's position is that our holding in Gilman does not
  support suppression of defendant's breath test here and that, despite
  defendant's inability to speak with counsel through no fault of his own,
  there is no remedy.  The State contends that the arresting officer did all
  that he was required to do by telephoning the public defender and telling
  her that defendant wished to speak with her.  It argues that the right to
  counsel for DUI detainees is limited in that defendants are required to
  make a decision within thirty minutes regardless of whether a consultation
  with an attorney has taken place.  See 23 V.S.A. § 1202(c).  In addition,
  the State emphasizes our holding in State v. Fredette that the statute does
  not guarantee DUI detainees a "fruitful or flawless consultation."  167 Vt.
  586, 587, 705 A.2d 548, 550 (1997) (mem.). 
   
       ¶ 7.  Where there has been a complete denial of counsel, however,
  our holding in Gilman applies.  Gilman arose as a result of a failure by
  the office of the public defender to comply with 23 V.S.A. §1202(g).  In
  Gilman, the failure lay in not providing the twenty-four hour coverage for
  DUI detainees required by the statute.  We held that it was irrelevant to
  our result whether a detainee was unable to consult with a lawyer because
  of illegal behavior on the part of the police officer or a failure of the
  defender general to provide coverage. __ Vt. at __, 787 A.2d  at 1244. 
  Where a consultation did not take place because no public defender was
  available to answer the telephone, we held that the same remedy was
  available as in cases where the police obstructed the consultation, that
  is, suppression of the result of the breath test, or of the fact that the
  detainee refused to provide a breath sample:  "The State broke the law, and
  as a result, defendant did not receive the advice he should have to
  determine how to respond to a police request for a blood alcohol test. The
  only fair remedy is to suppress the result of defendant's uninformed
  choice.  We cannot . . . ignore the State's refusal to comply with the
  law." __ Vt. at __, 787 A.2d  at 1246.  

       ¶ 8.  There is no practical difference between the situation in Gilman
  and the public defender's refusal to consult with the detainee in the case
  before us today.  23 V.S.A. §1202(g) requires that the defender general
  "provide statewide 24-hour coverage . . . to assure that adequate legal
  services are available to persons entitled to consult an attorney under
  this section."  The public defender's decision to end the call from the
  processing officer deprived defendant of any opportunity whatsoever for a
  private consultation with an attorney.  However imperfect such a
  consultation may have been, it would have provided defendant with an
  opportunity to ask questions about the way Vermont's statutory scheme
  worked and what decision would make sense given his driving record.  Even
  if the attorney had ultimately refused to give defendant a recommendation
  on whether or not to submit to the test, counsel could have provided him
  with accurate information about the legal consequences of different
  decisions depending upon his driving record.
   
       ¶ 9.  As we observed in Gilman, "[i]f there is any lesson in our
  [D]UI decisions, it is that the failure of the State to comply with
  counsel-related rights of a[] [D]UI detainee has consequences for the State
  in [D]UI prosecutions."  Gilman, 787 A.2d  at 1241.  These counsel-related
  rights are integral to the rules governing apprehension of drunk drivers in
  this State.  Vermont's statutory scheme governing police officers'
  prerogative to request suspects to submit to evidentiary tests in the DUI
  context balances the State's interests in effectively enforcing its laws
  against the rights of individual motorists.  State v. Madonna, 169 Vt. 98,
  100, 726 A.2d 498, 500 (1999).  Recognizing that the consequences of
  agreeing or refusing to submit to a breath test are legally complex, the
  Legislature established a mechanism for providing DUI detainees an
  opportunity to obtain professional advice from counsel.  This mechanism
  places clear responsibilities on two agencies of state government: the
  police, who must comply with their statutory obligation to contact the
  public defender at the appropriate time during DUI processing, and the
  public defenders, who equally must comply with their statutory obligation
  to counsel detainees. 

       ¶ 10.  The refusal of a public defender to speak with a DUI detainee
  frustrates this statutory scheme, resulting in no less serious a violation
  of the detainee's rights than ensues when a police officer fails to assist
  a detainee in obtaining a meaningful consultation in accordance with the
  statute.  From the perspective of the detainee, the result is the same no
  matter which agency of state government fails to comply with its statutory
  mandate: behavior by a state official prevents the detainee from consulting
  a lawyer.  As we stated in State v. Fredette, "[t]his Court will not
  tolerate deliberate efforts by law enforcement personnel to thwart an
  arrestee's meaningful opportunity to consult with counsel."  167 Vt. 586,
  587, 705 A.2d 548, 549-50 (1997) (mem.).  Nor will we tolerate deliberate
  refusals by public defenders to provide detainees with an opportunity for
  consultation. 
   
       ¶ 11.  Nothing in our prior decisions in Fredette and Ironside
  compels a different result.  In Fredette, we declined to suppress
  evidentiary breath test results on the grounds that the arresting officer
  had provided the defendant's attorney with incorrect information about the
  detainee's driving history.  167 Vt. at 587-88, 705 A.2d  at 550.  We held
  that "the statutory right to counsel concerns an arrestee's opportunity to
  consult freely with an attorney, not . . . the attorney's right to consult
  with, or obtain correct information from, police."  Id.  In State v.
  Ironside, 167 Vt. 628, 711 A.2d 663 (1998) (mem.), we again declined to
  suppress evidentiary breath test results.  In Ironside, as in the case
  before us today, the public defender contacted by the processing officer
  refused to advise the detainee on whether to submit to a breath test after
  the processing officer refused to disclose information about the detainee's
  driving record to the public defender.  The defendant in Ironside had the
  opportunity to speak with an attorney on the telephone before and after the
  attorney spoke with the processing officer, but argued that "counsel's
  subsequent refusal to provide legal advice was functionally equivalent to a
  total denial of the opportunity to consult with counsel."  Id. at 629, 711 A.2d  at 664.  We decided this consultation satisfied the requirement of 23
  § V.S.A. 1202(c) that DUI detainees have an opportunity to consult with
  counsel, holding that "the attorney's choice to withhold advice, in the
  belief that defendant's recollection of his prior record was not reliable,
  does not negate this fact [that defendant had a private telephone
  consultation with an attorney]." 167 Vt. at 630, 711 A.2d  at 664.  Ironside
  can be distinguished from the case before us today because for all we know,
  in Ironside the conduct of the public defender was based on that individual
  lawyer's view of what advice could be given under the circumstances.  There
  was no indication in Ironside that the defender general was violating a
  specific statutory obligation imposed on that official.  Here, the record
  shows that the on-call attorney's conduct was in response to specific
  direction from the defender general not to provide any legal services to
  the operator unless the police officer disclosed the operator's prior
  record.  The defender general's instruction breached the defender general's
  responsibility under 23 V.S.A. § 1202(g) to provide twenty-four hour
  counsel, and this breach caused this defendant not to receive needed
  representation.  
   
       ¶ 12.  We note that in neither Ironside nor Fredette did we conclude
  that the police should not share with the public defender what information
  they had available about a detainee; we held only that they should not be
  made the guarantors of that information and that in certain situations lack
  of such disclosure would not be grounds for a finding that the detainee was
  deprived of a statutory right to counsel.  An important change in the
  governing statute limits the precedential value of these two cases to the
  case before us today.  In 1997, the Legislature amended 23 V.S.A. § 1201 to
  criminalize refusal to submit to a breath test in some situations. (FN1)  The
  criminalization of refusal has made the job of public defenders called for
  DUI consultations even more challenging.  Due to enhanced penalties for
  subsequent convictions, certain DUI offenders face higher penalties for
  conviction for DUI then they do for criminal refusal.  But to counsel a
  client to refuse the test would, in some cases, be suggesting that the
  client commit a crime.  An ethics opinion by the Committee on Professional
  Responsibility of the Vermont Bar Association suggests that counsel in such
  situations may not advise the client to refuse to take the test, but can
  inform the client only of the legal consequences of taking or refusing the
  test.  VBA Comm. on Prof'l Responsibility, Advisory Ethics Opinion 97-6
  (1997).  Apparently acting on the basis of this ethics opinion and related
  concerns about the criminalization of refusal, in instructions effective
  August 1, 1997 the defender general instructed on-call attorneys that they
  should terminate DUI calls without speaking with suspects when the
  processing officer refuses to provide a motor vehicle record check.  
   
       ¶ 13.  As we acknowledge, there is a heightened ethical dimension to
  the question now facing public defenders of how to counsel DUI detainees. 
  We do not condone, however, the decision by the defender general to
  promulgate a policy that requires public defenders to refuse to accept
  calls from detainees when police officers refuse to divulge the result of a
  motor vehicle record check. Providing legal advice of a general nature does
  not have to depend upon information about a defendant's particular
  situation.  The thirty-minute limit on the time allowed for consultation
  with an attorney indicates that the consultation will be fairly limited in
  scope, providing the detainee with general information about relevant law
  rather than a coherent legal strategy.  At this level of generality, a
  public defender can provide legal information without counseling the
  commission of a crime, as long as she does say that if the defendant
  belongs to one of the categories of individuals to whom the criminal
  refusal statute applies, refusal would be criminal.  The right to
  consultation is the right for detainees to obtain accurate information
  about their legal options.  For a detainee in what is undoubtedly a
  confusing situation, the right to consult an attorney is the right to
  obtain advice from someone who, unlike the processing officer, is in a
  position to provide unbiased professional counsel.  It is not the right to
  unassailable legal advice.  See State v. Clark, 164 Vt. 626, 628, 671 A.2d 1276, 1278 (1995) (mem.) (State not guarantor of attorney's advice; claim
  of ineffective assistance of counsel inapplicable in context of license
  suspension proceeding).   
   
       ¶ 14.  The interest of the State in keeping drunk drivers off the
  roads is not served by the current situation in which a conflict between
  two government agencies, the office of the public defender and the police,
  is resulting in the suppression of evidence that could help to resolve
  these criminal cases.  Nor is it served by presenting this Court with a
  series of different fact-bound matters to decide.  In the case before us
  today, defendant had no prior record.  The public defender could have
  provided meaningful advice in this situation without detailed knowledge of
  the defendant's driving history.  In other circumstances, the police may
  have an obligation to share information they have in order to enable the
  public defender to provide appropriate legal counsel.  The police and the
  defender general should come to an agreement that will implement the goal
  of the Legislature that drivers asked to provide a breath sample have a
  consultation with an attorney before they must make the decision whether or
  not to take the test.  The consultation should be a meaningful one under
  the circumstances.  We will not make DUI detainees the scapegoats in this
  stand-off between police and public defenders. (FN2)     

       Affirmed.

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                                 Dissenting


       ¶ 15.  AMESTOY, C.J., dissenting.   The majority finds "no practical
  difference" between its analysis in this case and its rationale in State v.
  Gilman, __ Vt. __, 787 A.2d 1238 (2001).  I agree, and therefore again
  respectfully dissent.
   
       ¶ 16.  According to 23 V.S.A. § 1202, every person who operates a
  vehicle on a Vermont highway has impliedly consented to an evidentiary
  breath test for the purposes of determining the concentration of alcohol or
  another drug in the blood.  Id. § 1202(a)(1).  An individual may refuse the
  test, but not without consequence.  See id. § 1202(b) ("refusal may be
  introduced as evidence in a criminal proceeding"); see also State v.
  Madonna, 169 Vt. 98, 99, 726 A.2d 498, 499 (1999) ("[T]he decision whether
  to take the test involves potentially serious consequences.").  As such,
  the Legislature has provided individuals a statutory right to consult with
  an attorney prior to deciding whether or not to submit to the test.  See 23
  V.S.A. § 1202(c).  
   
       ¶ 17.  The above statutory scheme is clear in its efforts to balance
  the rights of individual motorists against the State's need to enforce the
  law.  See Madonna, 169 Vt. at 100, 726 A.2d  at 500.  On one hand, the
  Legislature has provided individual motorists with not only a right to
  consult an attorney, but also a mechanism for promoting this consultation
  via "statewide 24-hour coverage seven days a week to assure that adequate
  legal services are available to persons entitled to consult an attorney
  under this section."  23 V.S.A. § 1202(g).  The State bears the burden of
  both informing a motorist of his right to counsel, and of "actually
  attempting to contact counsel within the thirty-minute time period." 
  Madonna, 169 Vt. at 100, 726 A.2d  at 500.  On the other hand, however, the
  Legislature has recognized the State's need to efficiently and effectively
  enforce DUI laws.  Accordingly, the above right to consult with counsel is
  limited in scope.  See 23 V.S.A. § 1202(c) ("A person who is requested by a
  law enforcement officer to submit to an evidentiary test or tests has a
  right as herein limited to consult an attorney . . . .") (emphasis added). 
  First, an individual must decide whether or not to submit to the test
  within a reasonable time, not more than thirty minutes following an initial
  attempt to contact an attorney.  Id.  Second, the individual "must make a
  decision about whether or not to submit to the test or tests at the
  expiration of the 30 minutes regardless of whether a consultation took
  place."  Id.  (emphasis added).  
   
       ¶ 18.  As in Gilman, the majority's holding frustrates this mandated
  balance.  While this Court rightly refuses to tolerate law enforcement
  personnel's deliberate attempts to interfere with a detainee's right to
  consult with counsel, the statute does not guarantee a detainee a "fruitful
  or flawless consultation."  State v. Fredette, 167 Vt. 586, 587, 705 A.2d 548, 550 (1997) (mem.).  As such, "[t]he statutory mandate is fulfilled
  when reasonable efforts are made to allow an arrestee to consult privately
  with counsel."  Id. at 167 Vt. at 587, 705 A.2d  at 549 (emphasis added)
  (quoting State v. West, 151 Vt. 140, 144-45, 557 A.2d 873, 876 (1988)). 
  Here, Trooper Nally attempted to contact two on-call public defenders.  He
  left two messages for Attorney Spaulding, neither of which were returned
  within the thirty-minute period.  After seven attempts, he then contacted
  Attorney London, who refused to speak with Velez following Trooper Nally's
  refusal to provide London with results of a motor vehicle record check.  We
  have twice before held that lack of police disclosure is not grounds for
  finding that a detainee was deprived of his statutory right to counsel. 
  See State v. Ironside, 167 Vt. 628, 629-30, 711 A.2d 663, 664-65 (1998)
  (mem.) (finding that police are not obligated to provide record check
  information to counsel); Fredette, 167 Vt. at 587-588, 705 A.2d  at 550
  (holding that an individual's statutory right to counsel concerns his
  "opportunity to consult freely with an attorney, not . . . the attorney's
  right to consult with, or obtain correct information from, police"). 
  Consequently, by making a diligent, good-faith attempt to contact counsel
  as requested by Velez, Nally carried the State's statutory burden here. 
  See Madonna, 169 Vt. at 101, 726 A.2d  at 500 ("[S]o long as there is an
  attempt to contact counsel, a decision must be made at the close of the
  thirty-minute time period.") (emphasis added).  

       ¶ 19.  I entirely agree with the majority's observation that the
  public's interest in keeping drunk drivers off the road is not served by
  the current conflict between the office of the public defender and the
  police.  The gamesmanship between the two agencies - which does credit to
  neither - is not, however, a sufficient legal rationale for reaching an
  absurd result.  The defendant here had the full benefit of the statutorily
  created - and statutorily limited - right to require the State to make a
  good faith effort to contact counsel within the thirty-minute time period. 
  It is the public that is made the "scapegoat" in this case.  I respectfully
  dissent.  I am authorized to say that Justice Skoglund joins in this
  dissent.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



                                       Dissenting:


                                       _______________________________________
                                       Chief Justice


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                                  Footnotes


FN1.  The criminal refusal statute, 1997, No. 56, § 1, became effective on
  August 1, 1997, and did not apply to Fredette, the events of which occurred
  on February 8, 1996, 167 Vt. at 586, 705 A.2d  at 549, or to Ironside, the
  events of which took place on May 5, 1996.  167 Vt. at 628, 711 A.2d  at
  663. 

FN2.  This is primarily a conflict over access to public information, that
  is, disposition of criminal cases in this state.  Law enforcement currently
  has effective access to that information from their database, but the
  public defenders do not because they cannot use the police database and
  cannot look up paper records in every district courthouse in the state in
  order to give immediate telephone advice.

       The problem can be solved from the judiciary records, at least with
  respect to Vermont convictions.  The docket entries, including conviction
  information, on all open and closed criminal cases (since 1978) are
  available electronically and can be searched on a statewide basis by name
  of defendant.  Under this Court's Rules Governing Dissemination of
  Electronic Case Records, § 3(a), the public is entitled to those records,
  and the Court Administrator is authorized to provide electronic access from
  remote locations over the internet.  Accordingly, we direct the Court
  Administrator to provide that access to defenders as soon as possible so
  they can make the determination that will allow them to give more
  meaningful advice.  If this proves workable, this decision should not
  create any "scapegoats" whatsoever, despite the dissent's fears to the
  contrary.