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State v. Madonna2/19/1999
d at 268.
The statutory scheme governing the administration of evidentiary tests thus seeks to balance the rights of individual motorists against the State's need to effectively enforce the laws. Because of the unusually short amount of time available in this scenario, the State bears the burden not only of informing a motorist of the right to counsel, but also of actually attempting to contact counsel within the thirty-minute time period. See id. at 106, 595 A.2d at 268 (defendant's license may not be suspended where refusal is premised on State's inability to provide defendant with consultation with lawyer before being required to decide whether to take the test); see also Gilman v. Commissioner of Motor Vehicles, 155 Vt. 251, 255, 583 A.2d 86, 87 (1990) (Dooley, J., Dissenting) (" t would be illogical to require suppression where the officer fails to notify of a right to assigned counsel, but recognize no consequence for a failure to afford counsel.").
In Garvey, a motorist who was pulled over for a suspected DUI violation was unable to contact either a public defender or an attorney of choice and refused to take a breath test without speaking to an attorney first. The trial court concluded that the motorist had refused a reasonable request for a breath test in violation of 23 V.S.A. § 1205(a). We reversed, interpreting 23 V.S.A. § 1202(c) to require the State to notify a public defender when any motorist is asked to take a breath test, regardless of the motorist's ability to pay. See Garvey, 157 Vt. at 107, 595 A.2d at 268 (" n all DUI cases - financial considerations of the suspect notwithstanding - a public defender shall be notified unless waived by the suspect or unless the suspect contacts an attorney of choice within thirty minutes, before a decision about taking the test is required."). The Legislature subsequently created a system of 24-hour, statewide public defender coverage to respond to this need. See 23 V.S.A. § 1202(g). The Legislature has also since modified our holding in Garvey by indicating that, so long as there is an attempt to contact counsel, a decision must be made at the close of the thirty-minute time period. See 23 V.S.A. § 1202(c).
The question before us in this case is whether our decision in Garvey imposes an obligation on police officers to tell motorists not only that they have a right to speak with an attorney prior to making their decision about the breath test, but that they have a right to have a public defender contacted for them regardless of their income level.
In State v. Duff, 136 Vt. 537, 540, 394 A.2d 1145, 1146-47 (1978), we held that law enforcement officers in DUI stops must assist in the implementation of the right to contact counsel by advising motorists of this right because this is the only way the right can be adequately safeguarded under the circumstances. We later extended Duff to apply to civil proceedings. See Pfeil v. Rutland District Court, 147 Vt. 305, 309-10, 515 A.2d 1052, 1055-56 (1986) (lack of meaningful opportunity to consult with counsel prevents finding of voluntary refusal in civil proceedings).
Even in light of an officer's duty to advise a motorist of his or her rights, however, the mere failure to convey all possible information to a motorist in the DUI context does not justify suppression. See State v. Lynaugh, 158 Vt. 72, 76, 604 A.2d 785, 787 (1992). Information about a motorist's right to contact counsel, however, is treated with special sensitivity. In State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981), we held that the fact that the form read to the defendant did not state that a needy person could consult with an attorney at public expense meant that the defendant in th
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