 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Blouin6/26/1998
October Term, 1997
On Appeal from District Court of Vermont, Unit No. 2, Franklin Circuit
Michael S. Kupersmith, J.
The State brings this interlocutory appeal from a district court order excluding evidence in a prosecution for driving under the influence , third offense, in violation of 23 V.S.A. Section 1201(a)(2). The court excluded evidence of (1) defendant's refusal to perform a roadside sobriety test, and (2) defendant's response to the question of whether he had "burped, belched or vomited" during the fifteen minutes prior to administration of an evidentiary breath test. The State contends that no constitutional, statutory or other rule of law requires exclusion of the evidence. We agree and therefore reverse.
In September of 1995, after observing a vehicle being driven with a burned out headlight, a Vermont State Police trooper effected a stop of defendant's vehicle, then approached on foot. The trooper detected the odor of alcohol emanating from defendant's car, noticed that his eyes were watery and bloodshot, that his speech was slurred, and that a twelve-pack of beer and several empty containers lay on the passenger side floor. The trooper asked if he had been drinking, to which defendant responded, " es, a couple of beers." The trooper then asked e HGN test involves moving an object such as a pen across the subject's field of vision to observe the manner in which the subject's eyes follow the object. As the subject follows the object, an overabundance of eye twitching indicates possible intoxication. See 1 R. Erwin, Defense of Drunk Driving Cases, Section 10.04 , at 10-18-10-19 (1997). The Dissent attempts to distinguish Muniz from the instant case by characterizing the incriminating utterances in Muniz as "voluntary." They were voluntary only "in the sense that they were not elicited in response to custodial interrogation," but instead came in response to "the limited and focused inquiries" necessarily "`attendant to'" legitimate police procedure. Muniz, 496 U.S. at 603-05. That is precisely the status of defendant's answer to the burp question. defendant to step out of the car and perform a horizontal gaze nystagmus ("HGN") test. As the trooper later testified, defendant "wouldn't follow the pen with his eyes, he kept moving his head, so I was unable to do that test." Following this refusal to perform the HGN test, the trooper requested no further physical performance tests. The trooper then administered an Alcosensor test, results of which indicated alcohol in defendant's system. Defendant was then taken to police barracks, placed in a processing room and then advised of his rights according to the standard Vermont State Police "DUI Processing Form." As part of processing, defendant was advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966). He indicated his understanding of those rights and that he did not wish to answer any further questions.
The trooper continued processing by explaining defendant's implied consent rights under 23 V.S.A. Section 1202 et seq. Defendant waived the opportunity to consult with counsel and agreed to perform an evidentiary breath test. As part of administering the breath test, the trooper inquired whether defendant had "burped, belched or vomited within the last fifteen minutes." The purpose of the question is to ensure that trace amounts of alcohol are not in the mouth which could render an inaccurate test result. According to the trooper, defendant initially said he had just burped, but then corrected himself and stated that he had "burped in the cruiser fifteen minutes ago."
Defendant then performed an evidentiary breath test, which revealed a blood-alcohol content
Page 1 2 3 4 5 6 7 Vermont DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|