State v. Tisa Farrow
144 A.3d 1036
Vt.2016Background
- Defendant was charged with DUI (23 V.S.A. §1201(a)(2)) after a trooper stopped her, observed signs of intoxication and empty wine bottles, and arrested her based on observations.
- At the roadside defendant initially declined standard field sobriety tests citing age/balance, then attempted a Modified Rhomberg Test (MRT) but stopped after ~5–8 seconds.
- The trooper testified about the brief attempt and observed swaying; the jury watched a short video of the interrupted MRT.
- Defendant moved in limine to exclude the trooper’s testimony and the video, arguing the exercise was incomplete, unreliable, irrelevant, and unduly prejudicial; she also argued constitutional protections required a warning that refusal could be used at trial.
- Trial court admitted the evidence, instructed the jury they may consider a refusal but are not required to infer guilt, and the jury convicted defendant; defendant appealed focusing on evidentiary and constitutional challenges.
Issues
| Issue | State's Argument | Farrow's Argument | Held |
|---|---|---|---|
| Admissibility under rules of evidence (relevance/Rule 403) | Interrupted MRT and refusal are relevant to consciousness of guilt and probative; not offered as a completed "test" | Interrupted MRT was non‑standard, unreliable, other non‑guilt explanations exist; admission was unfairly prejudicial | Evidence was relevant to consciousness of guilt; trial court did not abuse discretion balancing probative value vs. prejudice under V.R.E. 403 |
| Whether officer must warn that refusal may be used as evidence (Vermont Constitution) | No warning required; prior Vermont precedent allows refusal evidence absent statutory/constitutional bar | Argues Article 10/11 and Fourth/Fifth Amendment analogs require notice that refusal can be used against defendant | Rejected; Vermont law does not require such a warning and defendant identified no authority imposing one |
| Whether field sobriety exercises/seizure required warrant or other special rule (Fourth Amendment/Art.11) | Field sobriety requests are constitutionally permissible without a warrant when supported by reasonable suspicion | Argued warrant/exigent‑circumstance rule or other limits should require notice or bar evidence | Rejected; administration of tests on reasonable suspicion is consistent with Vermont precedent (no warrant required) |
| Whether Vermont Art.10 gives broader protection against self‑incrimination (testimonial vs nontestimonial) | Performance of the exercise is nontestimonial; refusal admissible under precedent | Argues Article 10 protects against compelled non‑testimonial evidence and thus requires warning or exclusion | Court reaffirmed that Article 10 is construed consistently with Fifth Amendment in this context and refused to extend it to require a warning |
Key Cases Cited
- State v. Curavoo, 156 Vt. 72, 587 A.2d 963 (1991) (refusal to perform field exercises can be probative of consciousness of guilt)
- State v. Blouin, 168 Vt. 119, 716 A.2d 826 (1998) (refusal evidence is admissible and non‑testimonial for Fifth Amendment purposes; admission subject to Rule 403)
- Pennsylvania v. Muniz, 496 U.S. 582 (1990) (performance on certain sobriety tests is physical, not testimonial, for Fifth Amendment analysis)
- State v. Gray, 150 Vt. 184, 552 A.2d 1190 (1988) (field sobriety tests and related brief seizures are permissible on reasonable suspicion given law‑enforcement interests)
- State v. McGuigan, 184 Vt. 441, 965 A.2d 511 (2008) (administration of field sobriety tests upon reasonable suspicion is reasonable under Fourth Amendment)
- State v. Rheaume, 176 Vt. 413, 853 A.2d 1259 (2004) (Vermont has consistently treated Article 10 privilege as synonymous with the Fifth Amendment privilege)