State v. Berini, 701 A.2d 1055

State v. Berini

701 A.2d 1055

Vt.

1997

Check Treatment

STATE of Vermont v. Christopher M. BERINI

No. 96-549

Supreme Court of Vermont

July 28, 1997

[701 A.2d 1055]

is a judgment falling within the Board‘s field of expertise.

In re Liquor Control Dep‘t Non-supervisory Employees, 135 Vt. 623, 625, 383 A.2d 612, 613 (1978). Indeed, the overall standard of review we apply in examining the Board‘s unit determinations is one of substantial deference, as those determinations fall within the particular province of the Board. “We . . . presume the actions of an administrative body to be correct, valid and reasonable, with a clear and convincing showing required to overcome the presumption.” ; accord ; . Furthermore, “[i]n reviewing the Board‘s unit determination . . . we should only ask whether the findings of fact taken as a whole justify the Board‘s ultimate conclusion.” .

The University asserts that the Board misapplied the statutory criteria and that its conclusions are unsupported by the evidence. It argues that the statute establishes a “presumption” in favor of broad bargaining units that can be overcome only by a sufficient showing of both a similarity of interests within the bargaining unit, and a sufficient divergence of interests from the rest of the University employees. The University contends, moreover, that such a divergence of interests does not exist.

There is no mention, however, of such a presumption in the Act, and the Board has indicated in its decisions that there is merely a strong policy favoring broader units that can be influential in the absence of evidence indicating that certification of a smaller unit is warranted. See

Champlain Valley Union High Sch. Staff Ass‘n v. Champlain Valley Union High Sch. Bd. of Sch. Directors, 3 V.L.R.B. 426, 433-34 (1980). This is not such a case. As noted, the Board found, and the record disclosed, a substantial community of interest among the members of the Police Services Department. Furthermore, a showing of a sufficient divergence of interests is not necessary to overcome the Board‘s general policy favoring larger bargaining units.

The University also argues that even if the Board applied the statutory criteria properly, its conclusions are nevertheless unsupported by the evidence. On the contrary, the substantial evidence relating to the unique nature of the work, qualifications, and training of the unit‘s employees amply supports the Board‘s findings and its conclusion that the Police Services Department constitutes an appropriate bargaining unit.

Affirmed.

July 28, 1997. The State appeals an order of the Orange District Court suppressing defendant‘s refusal to submit to a breath test because he was not afforded an opportunity to consult with an attorney. We affirm.

Defendant was arrested for driving under the influence. The arresting officer informed defendant of his right to speak with an attorney before deciding whether to submit to a breath test. Defendant refused to provide a sample without the advice of an attorney. Despite numerous attempts, the officer was unable to contact defendant‘s lawyer or a public defender. After approximately one hour, the officer asked defendant to provide a sample, but defendant declined to submit without consulting an attorney. The officer concluded that this constituted a refusal.

Defendant moved to suppress the refusal on the ground that he was denied the opportunity to consult with counsel. Under the authority of

State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991), the trial court granted the suppression motion. The State thereupon moved for permission to take an interlocutory appeal. V.R.A.P. 5(b). The court granted the motion.

Vermont‘s implied-consent statute gives a person from whom a breath test has been requested by a law enforcement officer a right to consult an attorney prior to deciding whether to take the test.

State v. Fuller, 163 Vt. 523, 526, 660 A.2d 302, 304 (1995); 23 V.S.A. § 1202(c). In Garvey we held that a defendant‘s license may not be suspended where the “refusal is premised on the state‘s inability to provide him with a consultation with a lawyer before he was required to make up his mind whether to take the test.” . We specifically rejected the State‘s contention that the statute authorized the officer to record a refusal if, after thirty minutes, a lawyer could not be found. Id.

Garvey plainly controls in this case. Although the State invites the Court to reconsider and reverse Garvey, it offers no new evidence or persuasive rationale to demonstrate that the case was wrongly decided. While not slavish adherents to stare decisis, see

Cooperative Fire Ins. Ass‘n v. White Caps, Inc., 166 Vt. 355, 356, 694 A.2d 34, 35 (1997), we generally require more than mere disagreement to overturn a decision, particularly one of such recent vintage.

Affirmed.

Gibson, J., dissenting. I agree that this case is similar in all material respects to

State v. Garvey, 157 Vt. 105, 595 A.2d 267 (1991). Nevertheless, because I believe the majority continues to misconstrue 23 V.S.A. § 1202(c), see (Gibson, J., dissenting), I respectfully dissent.

In doing so, I note the Legislature recently acted to remove all doubt about the extent of a person‘s right to counsel prior to deciding whether to take an evidentiary DUI test. 1997, No. 56, § 2 (“The person must make a decision about whether or not to submit to the test or tests at the expiration of the 30 minutes regardless of whether a consultation took place.“).

Accordingly, I would overrule Garvey and reverse the trial court decision. I am authorized to say that Chief Justice Amestoy joins in this dissent.