Every year, we publish a DUI Newsletter that is distributed to and relied upon by fellow attorneys practicing DUI defense throughout Vermont. The newsletter not only provides other attorneys with a handy reference to locate significant published and unpublished Supreme Court and District Court opinions, but also informs them with a brief analysis of the Courts’ decisions and any impacts on current law. Production of the newsletter allows us to be aware of the latest changes in the law and ensures that we have at our disposal any decisions, even from the furthest reaches of the State, that may prove helpful to the defense of our clients. Here is Frank Twarog's most recent newsletter . . .
2009.5 DUI Newsletter - Defender General Summer Camp 2010
As a preamble to this year’s DUI Newsletter, savvy readers will note that there are a few drug cases sprinkled in. The inclusion of these cases was intentional. Not only are we seeing more and more “under the influence of drug” cases, the language, facts and legal precedent that came out of Cunningham appears in many DUI prosecutions. Given the direction that the Supreme Court is headed, wherein exit orders are increasingly justified when any indicia of possible impairment is present (see, e.g. Mara), these kinds of decisions will promote extended detention, obfuscation or other generalized “fishing expeditions” by law enforcement. Unvictorious cases come first, with Mara leading the pack. The rationale being that this case has set the tone for DUI prosecutions over the course of the last year. I’ve also tried to make this an easy-to-reference document by including headers that boil each case down to a one-to-five word descriptive title. The Defender General website now provides a brief description and links to Vermont Supreme Court decisions, so those cases are not being included (with the exception of Mara). While some district court opinions appear on that website with one-paragraph explanations, until everyone from the private bar sends their cases to Mary Deaett, I’ll continue to churn out my own description of the cases in this format, now in its 9th year.
In addition, I have included at the end of the newsletter something that many of us have hoped for and asked about for years...a hardship license for our clients. S.103 provides for a dangling carrot: a person convicted of DUI will be able to seek a hardship license that is tied to an interlock device. Although it may prove to be a financial hardship to many clients, take note at 1207(a) that there is a provision intended to assist indigent motorists. While the legislature is not acting on this until a full report comes out in January, the pieces are in place to have the conversation. I am actively involved in communicating with our legislative representative and will provide updates during the year through VTACDL. This legislation truly has the potential to positively affect not only the economic health of families who are dependant upon a motorist with a suspended license, but actually make our roads safer.
Odor + admission = PBT:
State v. Mara, 2009 VT 96A. Have to start out the newsletter with this case, as it’s impact has been enormous. District Court judges are now wary of suppressing an exit order where more than one “observation” is made. In this case, Judge Rainville found the PBT to have been given unlawfully where the motorist had passed FSTs, even where an odor of alcohol was noted, eyes were bloodshot/watery and there was an admission of drinking earlier. The Supremes reverse after determining that the district court’s conclusion would “create a very uncertain landscape for officers in the field.” In essence, they rationalize that the PBT is “minimally intrusive,” especially where the motorist is out of his/her vehicle and has already performed FSTs. A PBT is “quick” and where multiple observations are made, its administration does not violate the Vermont or U.S. Constitution. This case also lends support to the argument that the DUI Affidavit-Infrared form is not a “script” that must be followed in order.
Indeed, certain jurisdictions, such as Winooski, routinely begin the roadside inquiry by administering a PBT before issuing an exit order. The only remaining issue to be litigated to the Supremes is whether the PBT can be ordered (see 23 V.S.A. § 1203(f), “when a law enforcement officer has reason to believe that a person may be violating or has violated section 1201 of this title, the officer may request the person to provide a sample of breath for a preliminary screening test using a device approved by the commissioner of health for this purpose.” emphasis added.
10%+ disparity between tests OK:
State v. Brown, 13-2-10Bncs. Defendant blew .162 on the first Datamaster test and .186 on the second, seven minutes later, a difference of .024 or ~ 13%. Brad challenged the accuracy and reliability of the Datamaster machine, citing the disparity. The State, through its chemist, opined that the proper analysis would be how the two results differ from the mean. Here, she stated the difference was less than 10% from the mean. In essence, the two experts differ on the comparison method, which the court notes, “has no bearing on any rules or performance standards in effect in Vermont.” By relying on the preponderance of evidence standard applicable to civil suspension proceedings, the court determined the tests in evidence to be accurate, accurately evaluated and reliable. Comforting. Judgment in civil for STATE.
PBT OK where four clues are present:
State v. Smith, 4227-10-09 Cncr. Humorous as usual, Judge Katz determines that when an officer is presented with an odor of alcohol emanating from a vehicle where there is not only a driver, but also a passenger, “does not alter the fact that [the presence of an] odor is a clue.” To require the officer to distinguish the odor from one or the other would necessitate an exit order, but to deny him/her the exit order without more “would create a Catch-22, certainly not the hallmark of a reasonable legal conclusion.” As there were also watery eyes, fumbling of papers and no headlights on at 2:00am, “all the constitution requires is that Officer Cherkalis have had reasonable, articulable suspicion of driving under the influence, before he requested a PBT of defendant. With four clues, he did.” Motion to suppress DENIED. Judgment in civil for STATE.
Exit order OK when accident form must be completed:
State v. Hue, 4032-10-09. Police come upon what appears to be an accident scene and observe backed-up traffic and an SUV across the lane of travel. Officer approaches and notices operator’s eyes are watery and an odor is emanating from him or the passenger. She returned to her cruiser to fill out an accident report with his documents and, when it was completed, asked another officer to “ask Defendant to meet with her so that she could verify the information on the form was correct.” Now the officer was able to detect the odor coming from the operator and he was processed for DUI. Defendant challenged the exit order. Apparently disregarding the testimony of the officer, Judge Kupersmith’s final sentence is in conflict with the stated purpose for the exit order (to corroborate information on a form), when he concluded, “the basis for the suspicion was strong enough to justify an order for Defendant to exit his vehicle in order to ascertain the source of the odor.” Motion to suppress DENIED. Judgment in civil for STATE.
Unlawful exit order:
State v. Steadman, 58-2-10 Ancr. Devin McLaughlin, Esq. Essentially, a Sprague analysis case, wherein Judge C. Corsones finds a lack of indicia of impairment sufficient to justify the exit order. After stopping the defendant for speeding, the officer noted bloodshot, water eyes and a non-descript “odor” that he could not identify as alcohol, marijuana or a “masking” odor. The trooper performs an HGN test while the defendant is seated in the car and testified that the defendant exhibited “slight” clues. Defendant denied smoking marijuana that day. After learning from dispatch that the defendant had a prior marijuana conviction, he orders the defendant from the car to perform FSTs. The Court concludes that the only indication of a crime came from the bloodshot and watery eyes and without more - i.e. slurred speech, difficulty finding paperwork, etc. - the exit order was not justified. Motion to suppress and dismiss GRANTED.
Noteworthy pre-Mara PBT decision:
State v. Murdock, 1147-9-08 Wncr. Paul Volk, Esq. Another accident form case, but with a twist. In this case, the police were summoned to an accident where the defendant explained she had been distracted by a paper cut. The officer filled out the form and engaged with both operators. No indicia of impairment was noted on defendant. After completing the form, the officer went to return paperwork and noted only an odor of alcohol on her. She denied drinking, but submitted to a PBT, which registered a .15. The affidavit noted normal speech and eyes, no difficulty getting out of the vehicle and that she was steady on her feet. Following McGuigan, the court stated that a PBT is a search for Fourth Amendment and Article 11 purposes, necessitating “specific and articulable facts” indicating an individual has been driving under the influence of alcohol. Because the officer could not point to those facts, the PBT request was deemed unlawful. Using language sometimes referenced in J. Toor decisions, “drinking alcohol is not illegal; driving under the influence is.” It is interesting to consider whether the court would have reached a similar conclusion in the post-Mara climate, as the motorist in this case was out of the vehicle by her own choosing and was present at an accident scene that took a lengthy period of time to document, therein, perhaps (at least according to the language and emphasis in Mara at ¶ 11), justifying a slightly longer delay for the “minimally intrusive” intrusion on her liberty to submit to the PBT. Motion to suppress and dismiss GRANTED. Judgment in civil for DEFENDANT.
Community caretaking defined:
State v. McNamara, 624-10-09 Ancr. Sandra Lee, Esq. The defendant was stopped in the pull-off/rest area at the intersection of Rt. 7 and 22A in Ferrisburg. Her door was open, illuminating the dome light and she was partially outside the car when a trooper pulled in. She quickly got in and attempted to drive away, when the officer pulled alongside and motioned for her to stop. No blue lights or blocking of defendant’s vehicle. Trooper admitted that he had no suspicion of criminal activity, but instead, it was his practice to check on motorists to determine if they needed assistance. Judge C. Corsones initially determines that a “stop” occurred and then went on to distinguish the facts of the case from those in State v. Edwards, 183 Vt. 584 (2008), where the Supreme Court had found and identified specific facts tending to support a need for assistance. This is a very helpful decision for language distinguishing “community caretaking” from “officer curiosity,” which in the words of the court, may be “good practice, but... an officer’s practice cannot substitute for specific and articulable facts supporting a seizure.” Quoting Jestice. Motion to suppress and dismss GRANTED.
Community caretaking denied:
State v. Cast, 1885-5-09 Cncr. Jason Sawyer, Esq. Another example of the State’s heavy reliance on “community caretaking function” to justify a stop for non-criminal operation. Here, the defendant was driving around in circles, in a vacant parking lot, at 4:30 in the morning. Five minutes later, the officer approaches the car and the driver is seen asleep, along with open beer cans. Not good facts. As usual, Judge Zimmerman does a nice job of describing prominent case law and how the facts are distinguishable. By first determining that there is nothing unlawful about driving around in circles in an empty parking lot, she then finds that there was no objective indication that caretaking was required because there was no indication that anything was wrong. Motion to suppress and dismiss GRANTED.
Motions in limine (aka “The Steve Dunham Show”):
State v. Wixon, 1082-9-09 Frcr. Steve Dunham, Esq. Once again demonstrating his tenacious approach to criminal defense, equally described as “stubbornly unyielding,” Steve shows us how to prepare for trial. Judge Rainville grants two motions in limine: (1) challenging HGN and (2) challenging hearsay. As to the HGN challenge, the court determines that V.R.E. 702 precludes any evidence of the defendant’s performance on the horizontal gaze nystagmus from being presented to the jury because the State could not sufficiently demonstrate the test’s reliability. Noting insufficient evidence regarding potential error rate and general acceptance in the relevant community, the Court finds the testimony is not admissible by either the expert standard (V.R.E. 702), nor is it within the common knowledge of lay persons (V.R.E. 701).
As to the hearsay challenge, Steve sought to exclude testimony by a trooper about an informant’s tip stating that a “white Kia was driving erratically.” Finding that 801(c) allows for introduction to explain the officer’s conduct, rather than offered as proof of poor operation, the Court initially finds the testimony to be relevant and not hearsay. However, Steve also challenged under V.R.E. 403, arguing it was unduly prejudicial. The Court agrees, noting that the cumulative nature of that testimony - coupled with other observations by the officer - would unfairly prejudice the defendant. Both motions were GRANTED.
Aural recording of on-call PD consultation:
State v. Bundza, 2010-5-09 Cncr. Frank Twarog, Esq. Always wary of filing 48(b) motions, I finally resorted to that rule for support in a motion to reconsider. A review of the processing room video showed the defendant pop a piece of nicotine gum into his mouth. Moments later, an officer walks in with a trash can and demands that he spit it out. Then, the on-call PD was reached and defendant is left alone to speak. While the officer testified that he turned off the switch controlling the audio recording, turning up the volume on the computer revealed that every word could still be heard. Finding both prongs of the Powers test to have been met (right to private consultation violated as well as being deprived of a meaningful consult with an attorney) Judge Zimmerman found that the facts warranted not only suppression of the evidence, but also dismissal with prejudice to safeguard public confidence in recording practices that comply with well established case law. Motion to suppress and dismiss GRANTED. Judgment in civil for DEFENDANT.
Denying a second Datamaster test:
State v. Lussier, 661-6-09 Frcr. Nick Hadden, Esq. Judge Kupersmith learns that a Datamaster test result indicated .144, but the results were not shared with the motorist. Defendant is asked if he wants a second test and says, “no.” A few minutes later, the test result is revealed and when the operator then asks for a second test, the trooper refuses to provide him with one. In finding in favor of the defendant, the court concludes that the language of 1202(d)(5) is unambiguous: “[s/he] may elect to have a second infrared test administered immediately after receiving the results of the first test.” Motion to suppress GRANTED. Judgment in civil for DEFENDANT.
“Refusal” is determined by totality of circumstances:
State v. Allen, 4-1-10Frcs. Nick Hadden, Esq. In this civil suspension decision, Judge Rainville finds that multiple burps do not necessarily constitute a “refusal.” Here, the motorist spoke with the on-call PD and initially stated he would take the test. He then burps during the observation period, prompting a warning by the trooper that a subsequent burp would indicate that he refused the test. The motorist falls asleep and almost immediately upon being awoken by the sergeant, he burps again. The trooper enters “refusal.” The Court finds it inadvertent and distinguishes the conduct from multiple cases where behaviors showed obvious unwillingness to submit to a test. The Court, “finds that a reasonable inference of refusal cannot be drawn” from the defendant’s conduct. Judgment for DEFENDANT.
Border Patrol authority to stop:
State v. Mahar, 119-12-09 Gicr. Brad Stetler, Esq. A Border Patrol officer was positioned in Alburg to detect possible illegal border crossings involving drugs or aliens. Just a week prior, the same agent arrested someone nearby for illegally crossing. An SUV drives by, the agent follows and initiates a road stop. Judge Joseph notes that the agent did not observe any operation that would tend to suggest DUI, nor any indication that the motorist was engaged in any kind of illegal activity. Stating that the federal standard for finding a “reasonable suspicion” is similar to the Emilo standard for “reasonable and articulable suspicion of criminal wrongdoing,” the Court determines that the stop was unlawful. Motion to suppress GRANTED. Judgment in civil for DEFENDANT.
Cunningham + profiling = dismissal:
State v. Smith, 939-6-09 Rdcr. Mark Furlan, Esq. In this case, an officer saw a car cross the center line and swerve within its lane, so he initiated a stop. Upon approaching the driver, he saw a white female operator and two black male passengers. No odor of intoxicants, marijuana, nor any indicia of impairment was noted. One passenger was observed to be nervous. Thirteen minutes later, after repeated questioning and returns to his cruiser, the operator’s license number was “called in” to dispatch. Forty-four minutes into the processing, the trooper still had not completed or issued any tickets for motor vehicle violations, but saw marijuana underneath the driver’s seat. Consent is requested and given and all are arrested. Judge Zonay breaks down the entire sequence in an almost minute-by-minute fashion, revealing obfuscation on the part of the officer to delay the traffic stop in the hope of finding a drug violation. After determining that the stop was justified, as well as the inquiry into registration, validity of license and proof of insurance, the Court concludes that the expansion into a drug investigation required a reasonable, articulable suspicion that did not exist. This case stands to show how initial contact with a motorist that is suspected to be DUI must be analyzed to determine the scope of authority given to law enforcement to order an exit from a car and detain a motorist. It also shows that questioning whether racial profiling by law enforcement occurred is a worthy line of inquiry, even before a judge that once wore a badge. His conclusion leaves no doubt that such profiling will not be tolerated or condoned. Motion to suppress GRANTED.
Cunningham + reliability of CIs + voluntariness challenged = dismissal:
State v. Latham, 1155-10-09 Frcr. Steve Dunham, Esq. CI #1 says defendant was trafficking drugs between N.J. and VT. CI #1 says he’s “seen the drugs.” CI #2 says defendant is driving in St. Albans at the Town Industrial Park. Detectives leave office looking for defendant and initiate a motor vehicle stop. One week prior, they had stopped him for DLS and an unregistered or inspected vehicle. Twenty minutes elapses and the motorist is never told he is free to leave. Five officers were present. Crack is eventually discovered. The Court finds the initial stop lawful, due to the recent DLS stop, even though they had not called dispatch to inquire of the status of the license on that date. But, the officers lacked any information to justify an extension of the scope of the stop. Neither CI #1, nor CI #2 had provided a tip that defendant was carrying drugs on the date of the stop. Furthermore, the voluntariness of the consent was in doubt, as the motorist had not only initially denied consent, but the inevitability of a search did not exist because law enforcement did not have probable cause to obtain a warrant, despite the officer’s expressed certainty. Motion to suppress GRANTED.
Revved engine not necessarily reasonable suspicion:
State v. Ackland, 198-5-09 Ancr. Jerry Schwarz, Esq. Two Addison County officers are monitoring traffic and both hear a loud sound from a vehicle, which “indicated [it was] operating at high RPMs.” The officers speculated it might be speeding. One tries unsuccessfully to clock it with radar while the other determines that it was not speeding. The vehicle stops properly at a stop sign, but revs again for a period of five seconds. The car is followed and an observation is made of one tire touching one of the dividing lines in the middle of the road. A stop is initiated and the motorist is processed for DUI. The Court finds no “reasonable and articulable” suspicion of wrongdoing in the revved engine, absent speeding or spinning tires. Furthermore, because the tire did not cross the solid line, but rather touched the divided line, there was no violation of law. Motion to suppress GRANTED. Judgment in civil for DEFENDANT.
Unlawful DLS stop:
State v. Miller, 3191-8-08 Cncr. Lucas Collins, Esq. Officer checked the registration on a vehicle he was following and learned that the registered owner was under suspension. The operator was not known to the officer. Dispatch advised only that the owner was a “male.” A stop was initiated and the driver was determined to be under suspension. This is a very valuable case because it provides all of the law, including district court decisions, that distinguish between two common DLS scenarios: (1) as here, an unlawful stop where the officer didn’t know the operator, but learned from dispatch that the registered owner was under suspension and on that basis, initiated a stop; versus (2) a lawful stop where an officer recognizes an operator they believe to be suspended and had a reasonable (but mistaken) belief - even if dispatch incorrectly corroborated that mistaken belief by providing misinformation about whether the motorist was valid - which provides the requisite reasonable and articulable belief to investigate further. Motion to suppress and dismiss GRANTED.
Clear distinction between “may” have been DUI vs. “was” DUI:
State v. Kurtz, 450-2-10 Cncr. Ted Kenney, Esq. A bicyclist was hit by a Dodge pickup that left the scene. Defendant later entered the police station, admitting he was the driver, had left the scene and had been drinking that day. The officer did not smell any odor of alcohol, but did notice bloodshot/watery eyes. Rather than request FSTs or a PBT, the officer arrested the defendant for suspicion of DUI on the basis that: (1) a witness observed the vehicle cross the line of travel and strike a bicyclist and (2) the defendant admitted to drinking earlier in the day and driving. Judge Zimmerman’s decision nicely articulates the distinction between whether an officer has reason to believe a motorist may have been operating under the influence versus whether an officer has reasonable grounds to believe a motorist was operating under the influence. Most importantly, she describes what options an officer has when presented with either scenario. In this case, the officer merely had a reasonable suspicion to request a PBT or FSTs, but lacked the requisite reasonable grounds (i.e. probable cause) to arrest and request an evidentiary test. Motion to suppress test result GRANTED. Judgment in civil for DEFENDANT.
Prior adjudications for minors consuming alcohol:
State v. Hadden, 1003-9-09 Bncr. Matthew Harnett, Esq. The defendant was cited criminally, under 7 V.S.A. § 657, for possessing alcohol as a minor on August 14. She had completed diversion for a civil citation for possession on August 24. The sole question for the court was whether completion of diversion constitutes a prior “adjudication.” Judge Suntag reasons that the statute for criminal possession is clear: unless there is a prior adjudication under § 656, there cannot be a criminal charge filed under § 657. As the earlier civil offense had not been presented to the Judicial Bureau for adjudication when the subsequent citation was issued on August 14, the proper course of action would have been to send the second case to diversion as well under § 656(b). Motion to dismiss GRANTED.