State v. Therrien, Jr.
38 A.3d 1129
Vt.2011Background
- Stopped at 12:20 a.m. for a burned-out taillight; entire roadside encounter recorded.
- Officer observed strong odor of alcohol, watery eyes, and an empty beer container; defendant admitted drinking one beer.
- Officer administered a preliminary breath test (PBT) after returning to his cruiser; defendant was not asked to consent.
- PBT indicated above legal limit; field sobriety tests followed; defendant was arrested for DUI.
- Defendant moved to suppress both criminal and civil evidence, arguing lack of voluntary consent and unsupported PBT.
- Trial court held reasonable suspicion supported PBT, consent not required, and admitted evidence; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PBT results were admissible without voluntary consent. | Therrien argues the PBT is a search requiring voluntary consent, which was not proved. | Therrien contends the PBT was improper absent voluntary consent. | PBT may be requested with reasonable suspicion; consent not required if suspicion exists. |
| Whether the trial court erred by relying on the PBT despite statutory requirements. | State should be able to use PBT results regardless of consent. | Statute requires a request, not order; but there was no coercive order. | Statute permits a request; improper administration was harmless given probable cause from other evidence. |
| Whether the suppressions should be granted given harmless error analysis. | Suppression appropriate because PBT was improperly obtained. | Unlawful PBT does not undermine probable cause or criminal charge; suppression improper. | Harmless error; probable cause existed from odor, eyes, container, admission, and dexterity tests; evidence upheld. |
Key Cases Cited
- State v. McGuigan, 184 Vt. 441 (Vt. 2008) (PBT as a search and need for reasonable suspicion to justify)
- State v. Ford, 182 Vt. 421 (Vt. 2007) (Stop may be justified by suspicion; not all needs to inform of right to refuse)
- State v. Sprague, 175 Vt. 123 (Vt. 2003) (Consent can substitute for suspicion to justify search)
- State v. Mara, 186 Vt. 389 (Vt. 2009) (Reasonable suspicion supports PBT and related actions)
- State v. Gray, 552 A.2d 1190 (N.H. 1988) (Observations can justify field sobriety tests)
- State v. May, 178 Vt. 575 (Vt. 2005) (Improper act without negative effect on charge may be harmless)
- State v. Eldredge, 180 Vt. 278 (Vt. 2006) (Statutory interpretation and plain meaning)