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State v. Madonna2/19/1999
State v. Madonna (98-352)
[Filed 19-Feb-1999]
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from District Court of Vermont Unit No. 3, Caledonia Circuit
January Term, 1999
Mary Miles Teachout, J.
The State appeals the district court's judgment for defendant in a civil license suspension hearing. The issue on appeal is whether the consent form read to defendant informing him of his right to counsel prior to deciding whether to take a breath test adequately advised defendant of his right to speak to a public defender regardless of his income level. We affirm.
During DUI processing, the officer read to defendant from a standard processing form designed to advise motorists of their right under 23 V.S.A. § 1202(c) to consult with an attorney prior to deciding whether to submit to a breath test. The form reads in relevant part:
"You have the right to talk with a lawyer before deciding whether or not to submit to a test. If you cannot afford a lawyer and want one, a Public Defender will be contacted for you, at the State's expense."
At the civil hearing concerning whether defendant's right to drive in Vermont should be suspended pursuant to 23 V.S.A. § 1205(a) (providing for civil suspension of non-resident operating privilege when blood alcohol content is .08 or greater), defendant alleged, and the trial court agreed, that the consent form misinformed defendant of his right to speak with a public defender regardless of financial need. The trial court relied on our decision in State v. Garvey, 157 Vt. 105, 595 A.2d 267 (1991), in finding that the form inadequately advised motorists of their rights. On appeal, the State contends that the trial court misinterpreted the scope of the right articulated in Garvey and urges reversal of the trial court's order.
Title 23 § 1202(a)(1) provides that every person who operates a vehicle on Vermont roads is deemed to have given implicit consent to an evidentiary test to determine blood alcohol concentration. If a person either refuses to take the test or evidences a blood alcohol concentration greater than .08, the motorist's license will be suspended. See id. § 1205(a). Because the decision whether to take the test involves potentially serious consequences, the Legislature has provided motorists with a statutory right to consult an attorney prior to deciding whether to take the test. See id. § 1202(c). Nonetheless, the motorist still must decide whether to take the test within thirty minutes of the initial attempt to contact counsel, even if there has been no consultation. See id. This is because the test must be administered within a short period of time to provide an accurate reading of the motorist's blood alcohol concentration.
The Legislature has created a mechanism for facilitating this consultation in 23 V.S.A. § 1202(g), which states that " he defender general shall provide statewide 24-hour coverage seven days a week to assure that adequate legal services are available to persons entitled to consult with an attorney under this section." As we explained in Garvey, " he rationale for contacting a public defender regardless of financial need is supported by the fact that many DUI arrests occur after normal working hours when attorneys are not as readily available to consult." Garvey, 157 Vt. at 107, 595 A.2
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