*1
8,
3C(1)
dismissing this mat
October
2A
of the Code of
and
Canons
Timely filing
ter
of a notice
is denied.
with the
Conduct. We concur
Judicial
conclusions of the Board
prerequisite
appeal
of
is
except as
jurisdiction.
of
Court’s exercise
discussed below.
Stevens,
199, 200-01, 542 A.2d
violation,
As
the
itemized
second
256,
appeal
The notice of
Judge
promptly
note that
Levitt
we
days
be filed .
. within 30
“shall
the
ment.” V.R.A.P.
court
disqualified
from the matter
herself
entry
judg
date of the
the court. Be-
under submission to
superior
4. The
herself,
disqualified
we do
she
cause
upon
may grant an
motion
ex
agree
2A.
that she violated Canon
id.,
filing,
but no
tension
time for
in In re
For the reasons
stated
was made herein. If a
such motion
Kilburn,
456,
[599
1051]
HAMM
No. 91-332
No. 91-031
Appellant’s
October
1991.
entry
from the
order of
for relief
September
status,
pub-
defendant’s financial
notified,
driving
was arrested for
while under
lic defender must be
unless
intoxicating
waived or
liquor
the influence of
another
con-
(DUI)
tacted, before
in violation
defendant can be re-
of 23 V.S.A.
1201(a)(2).
quired
decision).
to make
a breath-test
He refused to submit to
*2
test,
evidentiary
an
breath
consent
missing
from defendant’s
implied
for which is
under 23 V.S.A.
hearing
claim at his
1202(a).
district court
§
Defendant received a no-
any
in his brief here is
assertion that
suspension
operator’s
tice of
li-
his
deficiency
in
any
the form had
1205(b),
§
cense under 23 V.S.A.
bearing on his
to
refusal
take the
requested
then
a district court hear-
given
test. We assume the advice
de-
suspension,
to
pur-
contest
expansive
fendant was no more
than
1205(c)(1).
§
suant to 23 V.S.A.
At the
what is contained in the form. How-
suspension hearing the district court
ever, defendant never contended that
found that
pre-
defendant had not
lack of advice about a free consulta-
any
vailed on
of the issues raised un-
lawyer
any
tion with a
was in
fashion
1205(f),
§
23 V.S.A.
connected with his refusal. For all we
findings
report
forwarded its
to
know, defendant’s refusal could have
vehicles,
the commissioner of motor
predicated upon
been
reasons in no
as
under
23 V.S.A.
way related to a lack of consultation
1205(g),
§
suspen-
who confirmed the
lawyer.
with a
The State has the bur-
sion.
refusal,
prove
den to
and that bur-
brings
den does not shift to defendant. But
1205(i).
§
der 23 V.S.A.
The sole issue
produc-
defendant had the burden of
is whether a form
used
is,
tion
prejudice,
on the issue of
essing officer to
what
record
he ad-
he had to introduce some evidence
vised defendant
and defendant’s
any deficiency
in the advice he
responses was deficient. The form
prejudicial.
received was
This he did
did not indicate that defendant was
not do.
advised at the time he was asked to
Affirmed.
take the
right
breath test of his
to
attorney
public
Allen, C.J.,
consult with an
at
ex-
concurring. I concur in
pense
making
before
only.
the decision. He
the result
concedes the form did advise him of
Johnson,
J., dissenting.
re-
right
attorney,
his
to consult an
as re-
spectfully dissent. Previous decisions
1202(e)
quired
(d)(4).
§
under 23 V.S.A.
interpreted
of this Court have
23
1202(d)
§
§
V.S.A.
and 13 V.S.A. 5234
Duff,
We held in State v.
136 Vt.
placing
duty
affirmative
on the
537, 539,
394 A.2d
notify persons
State to
right
of their
1202(b)
§
that 23 V.S.A.
must be read
public
to consult with a
defender be-
pari
materia with 13 V.S.A. 5234
deciding
fore
take
breath test
public
defender statute. And as
suspicion
when arrested on a
of DUI.
Gracey,
we said
State v.
140 Vt.
Gracey,
199, 201,
State v.
140 Vt.
199, 201,
436 A.2d
“a
(1981);
A.2d
Duff,
State
person asked to
take
breath test
537, 539,
136 Vt.
right
be informed of his
to con
(1978);
Garvey,
see State v.
attorney
with an
making
sult
before
105,
1205(f)(2)