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State v. Madonna2/19/1999
at case was not adequately advised of her rights. We concluded that the general statement that the defendant had a right to speak with an attorney was insufficient to describe her particular entitlement to counsel, i.e., that of a needy person. See id.
Similarly, defendant in this case did not receive information pertinent to his particular entitlement to counsel: the right to contact a public defender regardless of financial position. The form read to defendant implied by omission that this option did not exist. There is no reason to conclude that defendant deduced this right on his own.
As we explained in Garvey, the reasoning behind contacting a public defender regardless of a motorist's financial need is that many DUI arrests occur at times when private attorneys are not as readily available. See Garvey, 157 Vt. at 107, 595 A.2d at 268. Stated another way, the thrust of our holding in Garvey was that unavailability of a private attorney should not determine the outcome of a motorist's decision whether to take the breath test. If a motorist is not advised of the means of procuring an attorney, as defendant was not here, this goal is undermined.
The form as presently worded sets out a truncated list of options: either contacting a private attorney or, if a motorist is needy, contacting a public defender. A motorist, who has no other realistic opportunity to learn of the right articulated in Garvey, could not reasonably be expected to infer that he or she has a right to contact a public defender regardless of financial position. See Gracey, 140 Vt. at 201-02, 436 A.2d at 743 (form failed to advise defendant of her rights because there was no reason to believe that defendant inferred her right to a public defender before the breath test from reading the public defender form). Therefore, the trial court correctly concluded that the form failed to adequately advise defendant of his rights.
Affirmed.
FOR THE COURT: Associate Justice
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