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State v. Bean3/31/1995
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When a driver makes a complicated decision, without the option of consulting counsel as is his statutory right, he should not be bound by that decision, since he might with counsel have made it differently. Therefore, we have no hesitation in holding that the failure of law enforcement officers to advise the defendant of his right to counsel as provided in 23 V.S.A. § 1202(b) mandates a suppression of the results of the breath test.
136 Vt. at 540, 394 A.2d at 1146. The rationale applies to "any statement obtained otherwise than by statutory compliance." Nicasio, 136 Vt. at 166, 385 A.2d at 1099.
In essence, the State asks that we not fashion remedy to redress the violation of the rule, even though the consequences of the violation are exactly what the rule was intended to prevent. Although defendant's statements were spontaneous and voluntary, as the State argues, they were made without the advice of counsel. In our view, the only way we can assure that defendant has the effective assistance of counsel and a fair trial is to prevent adverse consequences from being imposed on him when proceedings go forward improperly without counsel. That remedy is fully consistent with the bright line standard Rule 5(e) creates and with the remedies we have fashioned for violation of the statutory right to counsel.
We are not persuaded by the State's argument that we are improperly using an exclusionary rule. Although in a broad sense we are suppressing evidence, it is evidence that came into existence because of a lack of compliance with the rule. The need here is not to deter; instead, it is to give defendant the benefit of counsel and to enforce procedures created to protect the right to counsel.
Affirmed.
John A. Dooley, Associate Justice
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