212 A.3d 1226
Vt.2019Background
- Late-night stop after officer observed defendant drive from the direction of a bar and exceed the speed limit; officer noted watery eyes, faint odor of alcohol, slightly slurred speech, and several field-sobriety clues. Defendant twice refused breath testing: a roadside preliminary breath test (PBT) and, after arrest, an evidentiary breath test.
- Charges were bifurcated: first phase on DUI (defendant acquitted), second phase on criminal refusal to submit to an evidentiary breath test (defendant convicted). Only additional evidence in phase two was a prior DUI conviction required by statute.
- Trial court admitted evidence of refusal to take the PBT during the DUI phase as consciousness of guilt and later admitted the PBT refusal in the refusal phase to show whether the officer had reasonable grounds to request an evidentiary test.
- Defendant sought to explain subjective reasons for refusing; the trial court allowed such testimony in the DUI phase but excluded reasons from consideration in the refusal phase, instructing jurors to consider only whether she refused.
- On appeal defendant argued (1) admission of PBT-refusal evidence was improper under statute and constitutional principles, (2) the State failed to prove the officer had “reasonable grounds” (probable cause) to request an evidentiary test, and (3) the State failed to prove she actually refused because she later asked if it was ‘‘too late’’ to take the test.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of PBT refusal at refusal-phase trial | PBT refusal is admissible to show the officer had reasonable grounds to request an evidentiary test; §1203(f) permits use of PBT results to determine whether to request an evidentiary test | PBT statutory language bars use of a PBT “result” (including refusal) in court; admission violated due process/evidence rules | Affirmed: admission proper because PBT refusal was used to show whether officer had reasonable grounds to request the evidentiary test; §1203(f) permits that use; constitutional arguments not preserved and lack merit on presented record |
| Whether §1203(f) prohibits use of PBT refusal to prove officer’s reasonable grounds | §1203(f) allows PBT results to inform whether to arrest/request evidentiary test; thus relevant to refusal prosecution | Refusal equates to a ‘‘result’’ and statute excludes PBT results from court use except on those preliminary issues | Held admissible: use in refusal phase was precisely the statutory purpose — to show whether officer had reasonable grounds to request evidentiary test |
| Burden to prove officer had reasonable grounds (probable cause) | Officer’s observations (bar direction, speeding, odor, watery eyes, slurred speech, sobriety-test clues, PBT refusal) together satisfied reasonable grounds/probable cause | Defendant disputed sufficiency; argued some prosecutor language misstated standard and evidence was insufficient | Held: jury could find reasonable grounds based on totality of circumstances; instruction matched precedent and any stray prosecutor phrasing was harmless or unpreserved |
| Whether defendant’s later question about being ‘‘too late’’ to take the test nullified refusal | State: §1202(c) timing is not an extra element the State must prove; the question was equivocal and outside 30-minute window | Defendant: she offered to take the test and State failed to disprove the offer occurred within statutory 30-minute window | Unpreserved on appeal (defense conceded at trial it was outside 30 minutes); court declined to reach unpreserved/plain-error arguments |
Key Cases Cited
- State v. McGuigan, 184 Vt. 441 (Vt. 2008) (PBT is a search but reasonable when officer has specific, articulable facts of DUI)
- State v. Therrien, 191 Vt. 24 (Vt. 2011) (officer may request but not compel breath sample when only reasonable suspicion exists)
- State v. Perley, 200 Vt. 84 (Vt. 2015) (reasonable grounds in DUI/refusal context equates to probable cause; totality-of-circumstances analysis)
- Birchfield v. North Dakota, 136 S. Ct. 2160 (U.S. 2016) (distinguishes warrantless breath tests incident to arrest and evidentiary-consent regimes)
- Brinegar v. United States, 338 U.S. 160 (U.S. 1949) (probable cause inquiry differs from evidence admissibility at trial)
- State v. Oscarson, 176 Vt. 176 (Vt. 2004) (harmless-error standard for improperly admitted evidence)