State v. Mark Pomerantz, 2016-322

Late-night traffic stop of Mark W. Pomerantz on January 30, 2016 for suspected traffic violations and impairment.
Officer observed signs of intoxication; defendant performed poorly on field sobriety tests and provided a preliminary breath sample of .133%.
Defendant arrested and taken to the Winhall police station for DUI processing; he consulted an attorney and consented to an evidentiary breath test, which measured .133%.
After testing, defendant was released to his wife; the arresting officer issued a notice of license suspension based on the evidentiary result.
During station processing the officer advised defendant of the right to obtain independent tests and provided a list of local facilities, but omitted a post-test form question asking whether defendant intended to obtain additional tests; defendant did not request independent testing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the evidentiary breath test must be suppressed because the processing officer interfered with defendant’s right to an independent test	State: Officer properly informed defendant of his right to independent testing and provided facility list; no interference	Pomerantz: Officer failed to read the post-test form language and did not secure an affirmative waiver, so his right to an independent test was not waived	Court: No suppression—statutory notice and list were given before testing; totality of circumstances shows waiver of independent testing

State v. Simoneau, 176 Vt. 15 (2003) (standards for mixed questions of fact and law in suppression motions)
State v. Hoffman, 148 Vt. 320 (1987) (silence after being informed of right to independent test can constitute waiver where defendant coherently responded to other questions)
State v. Normandy, 143 Vt. 383 (1983) (no waiver where defendant detained overnight and not informed police could arrange independent testing)
Stockwell v. District Court, 143 Vt. 45 (1983) (waiver of independent-test right judged under totality of circumstances)
State v. Karmen, 150 Vt. 547 (1988) (distinguishing cases where detainees were not informed of police-arranged testing and thus could not validly waive)

Affirmed.