 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Blouin6/26/1998
after defendant invoked his Fifth Amendment right of silence, and without any subsequent express waiver of that right. The question was directly related to the charge confronting defendant. The question was not "innocent of any investigative purpose." United States v. Gotchis, 803 F.2d 74, 79 (2nd Cir. 1986). By answering that he had not burped in the fifteen minutes preceding the breath sample, defendant communicated an assertion of fact which contributes to the evidentiary foundation of the State's case against him. His answer discloses information that "could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. U.S., 406 U.S. 441, 445 (1972). In other words, he was asked, in violation of his constitutional right, for information to assist in developing credible evidence intended to be used against him to establish his degree of intoxication.
While it may increase the observational responsibilities of the processing officer, the State must "`shoulder the entire load'" in establishing the reliability of the evidence test to be used against a defendant. Miranda, 384 U.S. at 460 (quoting 8 J. Wigmore, Evidence Section 2251, at 317 (McNaughton rev. 1961)). The defendant should not be compelled to provide testimonial evidence that the test results were uncontaminated.
Therefore, while I agree with the majority's Conclusion that introduction of defendant's de facto refusal to perform the HGN test does not violate his constitutional rights, I would affirm the trial court's suppression of the "burp" question.
Associate Justice
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.
|
|