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State v. Nemkovich5/1/1998
Alan W. Cook, J.
In this DUI prosecution, the district court suppressed evidentiary breath test results in both the civil-license-suspension and criminal proceedings on grounds that the police had obtained an invalid waiver of defendant's Miranda rights, thus tainting defendant's subsequent written waiver of his right to counsel under the implied consent statute. The State brings interlocutory appeal of the suppression order in the criminal case and a direct appeal of judgment for defendant in the civil proceeding, both cases consolidated here. We reverse.
Upon notification that a vehicle was disabled on the interstate, a Vermont State Trooper was dispatched to the scene and approached defendant's vehicle, observing that it was in a ditch beside an exit ramp roadway. The trooper found defendant sitting in the driver's seat with the lights on and the engine running. He detected a strong odor of intoxicants on defendant's breath. The trooper also observed that defendant's eyes were watery and bloodshot, and that his speech was a "little slow." Defendant stated that he had consumed two drinks prior to driving and one drink while driving. A road side Alco-Sensor test indicated that defendant's blood-alcohol level was above the legal limit.
The trooper then took defendant to police barracks, where he was processed for DUI. The trooper used a "DUI processing form," which consists of several pages of written instructions and questions that are read to the motorist, as well as signature lines for both the processing officer and the motorist. Reading from the second page of the processing form, the trooper advised defendant of his Miranda rights, including "the right to talk to a lawyer before questioning and to have a lawyer present with you during questioning." When asked if he understood the rights as read to him, defendant apparently responded: "Sure," and then signed the waiver portion of the second page. The trooper then heard defendant utter the following: "No idea why not to speak," followed by a pause, and then "to a lawyer." The trooper noted these utterances on the processing form, but testified to the district court that his clear impression was that defendant did not wish to speak with an attorney and was in fact willing to speak with the trooper. The trooper continued with the DUI processing by informing defendant of his implied consent rights, which the trooper read from page three of the processing form. Among the specific information communicated was that " ou have the right to talk with a lawyer before deciding whether or not to submit to a[n evidentiary breath] test." Defendant indicated his understanding of the rights and that he did not wish to speak to an attorney before deciding whether to submit to the test. Defendant signed the section on page three indicating that he did not wish to speak with counsel before taking the test, then agreed to provide a breath sample. The test result indicated defendant's blood-alcohol content was over the legal limit.
Defendant moved the district court to suppress the breath test results in both the criminal and civil-license-suspension proceedings. In making its initial determination that the State had failed to establish a valid waiver of defendant's Miranda rights, the court reasoned that defendant's utterance of "no idea why not to speak . . . to a lawyer" was inconsistent with a knowledgeable, voluntary waiver of those rights. According to the court, the invalid waiver "could not be eradicated simply by reading the same rights over again, or similar rights over again, on page three." Ordinarily, the court observed, the State's introduction of defendant's written waiver of his implied consent rights would establish a
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