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State v. Roya6/12/2002
ENTRY ORDER
OCTOBER TERM, 2001
In the above-entitled cause, the Clerk will enter:
Defendant Kenneth G. Roya appeals from a conviction of driving under the influence of intoxicating liquor (DUI). He claims the standard form used by police during the DUI processing misinformed him of his right to consult an attorney before deciding to submit to a breath test, and, on this basis alone, seeks reversal of his conviction and suppression of the breath test evidence. He further argues that he should not be required to prove that he was prejudiced by the misinformation in order to obtain this result. We affirm.
Defendant was arrested on suspicion of DUI, taken to the police station for processing, and was asked to submit to a breath test. Pursuant to a form in use at the time, designed to advise motorists of their right to consult with an attorney prior to deciding whether to submit to a breath test, defendant was told: "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."
Indicating that he understood his rights, defendant chose not to consult an attorney, and declined to take the test. A year and a half later he was charged with DUI. During that period, this Court held in State v. Madonna, 169 Vt. 98, 102, 726 A.2d 498, 501 (1999), that the form used to advise Roya and other DUI defendants of their right to consult an attorney before submitting to a breath test failed to adequately advise defendants of their right to contact a public defender regardless of their financial position. In Madonna we found that, because the form implied by omission that the option to consult an attorney, regardless of one's financial position, did not exist, a motorist could not "reasonably be expected to infer that he or she has a right to contact a public defender regardless of financial position." Id.
After charges were filed against him, defendant was assigned counsel and moved to suppress evidence of his refusal to take the breath test as a product of a "Madonna violation" - that he was not told that he had "the right to speak with a public defender whether or not he could afford a lawyer." Defendant did not claim he could afford an attorney, however, nor did he claim that he would have submitted to a breath test had he spoken to the on-call attorney. Indeed he responded affirmatively when the court asked if he agreed with the statement that he was "not prejudiced by receiving the incomplete information because had just been processed for DWI some 30 days prior - had talked to a lawyer, realized that a public defender was available . . . and that based on income would have known that the public defender was available." The sole basis asserted by defendant for suppression is the misinformation included in the form.
Whether the trial court erred in concluding that defendant was required to demonstrate prejudice is a question of law which we review de novo. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997). Defendant relies on several cases where we held that giving incorrect advice, or failing to give advice at all, regarding a suspects's right to counsel warrants suppression of the subsequent breath test. In State v. Duff, 136 Vt. 537, 540, 394 A.2d 1145, 1146 (1978) we found that police have a duty to inform drivers processed for DUI and held that "failure of law enforcement officers to advise the defendant of his right to counsel . . . mandates a suppression of the results of the breath test." In State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981), we expoun
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