*1 We see no reason disturb the exercise of case. present discretion reasons,
For the we decline to disturb the trial to account for the amount court’s refusal to pendency rental income received of matter during court. The court found that need is family pres “[a] ently month renting per plus utilities on a property $150 temporary Plaintiff not contest basis.” does the defendant’s as taxes, insurance, maintenance, sertion that he bore the cost of and associated with the expenses property during this period. There was no evidence net or profit as to loss during period, this but it was trial court’s discretion to ex clude the effect income in marginal its consideration of award, overall having noted the amount involved property and the nature of the rental. property distribution is reversed remanded for fur-
ther consistent with The decision be- opinion. low otherwise affirmed. Gilman Commissioner of Motor Vehicles and
Vermont District No. Unit Caledonia Circuit
[583 86] No. 89-019 Allen, C.J., Peck, Gibson, Dooley Morse, Present: JJ.
OpinionFiled October 1990
R.
of Vincent Illuzzi
Loignon
Michael
Illuzzi and
Vincent
*2
Orleans,
Petitioner-Appellant.
Associates,
for
Attorney, St.
County State’s
Johns-
Caledonia
Gray,
Dale 0.
Gross,
Clerk,
Law
of State’s At-
Department
bury, and Jo-Ann
Respondent-Appellee.
torneys, Montpelier,
Allen,
ample support
The record contains
for the
C.J.
refused to submit to a breath
that defendant
test
§ 1202. To effect a refusal
meaning
of 23 V.S.A.
under
1202(c),
need
conduct
in a
person
only
himself
person
which would lead a reasonable
the trooper’s
manner
understood he was
person
requested
to believe that the
position
unwillingness
test and manifested an
to do
to a breath
to submit
Stockwell v. District
so.
by an express,
A
need not show refusal
affirma-
person
tive statement. thereof, infer a refusal from the totality an officer circumstances. informed defendant the outset that he trooper be- a vehicle operating
lieved defendant had been under the influ- that he liquor required ence of to ask intoxicating evidentiary of his sample defendant an breath. The of his in- rights then informed defendant under trooper at state expense. his to consult It is cluding reach the of whether the trooper afforded unnecessary because, while his a public a desire to contact he later indi- Mr. Illuzzi. Defendant explained cated a him, done business” with could “always arrange had to make services, for his and had no intention of calling any payments other than Mr. court found that after to call Mr. Illuzzi he attempted refused to make call, that “he had attorneys, stating calls to other made his wanted Illuzzi and no others.” This Attorney that he finding testimony by of the officer that defendant amply supported “said he didn’t want to make more calls. He didn’t want to attorney. He wanted Mr. Illuzzi.”
The trooper knew that the defendant had sought to consult was not available and that contact within the statu tory time would not take period place because defendant had left a message instructing to contact him at his home. Defendant’s stance that he would take the after whom he consulting knew to be unavailable was tanta mount to a refusal. The superior court’s denial of the petition for extraordinary relief does not constitute an abuse of discre tion.
Affirmed.
Dooley, J., dissenting. a world which a large percentage of cases involving motor vehicle operation and alcohol are ap- pealed, many of these lack a appeals meritorious it is easy to miss the wheat what seems like an endless sea of affirmance, chaff. In brief its the majority has categorized this *3 so, however, case as chaff. It does by characterizing the facts that I way do not believe is supported by the record and thereby omits consideration of main the by issue raised the appellant by and decided the superior court. The central issue and, balance, is difficult on points to a reversal. facts are that undisputed petitioner, Gilman,
was stopped while driving Johnsbury St. and was brought to police the state barracks processing for DWI. Before asking petitioner take a breath the arresting officer read him his rights from a processing form. When you asked “Do want a lawyer?,” answered, petitioner At “Yes.” that point, the officer went to a call list by set the up public defender’s office for night DWI calls and called each of the seven lawyers on the list. None were home. The officer then handed the telephone book to peti- tioner him and asked if he wanted to call any lawyer from the book. Illuzzi, Petitioner called Vince who also an- didn’t swer. Petitioner’s not testimony, officer, disputed by the was that he could not afford a private lawyer but had been repre- by sented Illuzzi in the past and felt he could work out a payment arrangement. Petitioner then refused to call book, the officer the asked lawyers telephone from
him Petitioner said he would not do so without to take the test. majority finds to be a refusal. It is this statement the lawyer. not have to reach the majority finds that we do of petitioner’s right ap- of whether there was a violation “while counsel because pointed defender,” he abandoned that request
desire to contact a public in favor of an on That conclu- reaching insistence record, by is not the and neither of the trial supported sion that have this case drew that conclusion. The courts considered facts are that the officer contacted all the undisputed public names, one, petitioner defender and on no handed reaching lawyers clearly book to who would have telephone private to be for their services. He did not paid on lawyers public names defender list. From the tele- book, phone pursue was able to one name because he he could work out with that thought payment arrangement tried Illuzzi lawyer. Petitioner to contact only after told that no was available. He never public stated defender he wanted Illuzzi in so, despite quotes major- the trial court did not find ity takes out of context. He said he would pick further telephone names from the book because he could not a lawyer. afford court,
Fact-finding is for the trial not this Court. The finding facts, evidence, is, course, of not supported by not proper court. I believe we must reach the by raised peti- court, by tioner and decided superior the effect of the provide counsel at public expense validity on the context, refusal to take a breath test. At least in find this to be a close question. Since this is dissent and the arise another I will day, only briefly my outline views.
While we have never I think directly, addressed our prece *4 require dents us to hold that a failure appointed to afford coun sel will result in a suppression of evidence of refusal or of a in result a criminal case. In v. Duff, State 136 Vt. 394 1145, 1146-47 (1978), A.2d held that Court the failure of the arresting officer to inform the defendant of his to right consult with counsel to prior deciding whether to take a breath test in results in suppression of the test results a criminal pro-
[255] 199, 201-02, In 436 Gracey, State v. 140 Vt. ceeding. (1981), that we extended to the officer advise Duff if a at needy, right he is he has to counsel were that the expense. Again, consequences result of In
the breath test was both the Court in- suppressed. opinions, to implementing right dicated that was counsel statute. § right See 13 V.S.A. 5234. Since the to notice of the availability' counsel, 5234(a), and the to right appointed V.S.A. coun- sel, 5233(a), coextensive, are a essentially failure to afford counsel must have the consequence as availability event, notify of counsel. it would be require suppression where the officer to illogical notify fails counsel, assigned consequence but recognize a failure to afford counsel.
The more difficult is whether a similar consequence in should occur a refusal which is civil and not crim- proceeding, inal, will in have, result suspension. license We how- ever, enforced refusal vacated a refusal a consequence. determination as Pfeil 305, 309-10, Rutland District (1986), 1055-56 we held that lack of meaningful oppor- tunity to with consult counsel means that the court can not find a voluntary refusal. precedents relies on criminal but con- Pfeil cludes that precedents equally must be applicable to refusal proceedings:
It result, however, would be anomalous to allow the Commissioner to suspend person’s license to operate motor vehicle on the highways of this state for six months where coercive or restrictive police practices affect the per- son’s decision to refuse testing. at 1055. We on reflection narrow the
holding particular of police practices, kinds but at Pfeil initial point my the failure here must consequences have the same as the failure Pfeil. I remand for a would determination of whether was, fact, needy person as he If claims. he was needy, and was not afforded counsel at public expense before deciding whether to take the breath I do not believe the refusal determination can stand. dissent. am author- ized to state that joins Justice Morse in this