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State v. Vezina7/1/2004
lained in Gilman:
We adopted [the suppression remedy] because we would not allow the State to take advantage of its own violation of the law. The critical point was made in Duff: "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." Duff, 136 Vt. at 540, 394 A.2d at 1146.
Gilman, 173 Vt. at 115, 787 A.2d at 1242. We cannot agree that the DataMaster's inability to produce a second test sequence compares with the irreparable harm caused by the State's actions in denying a defendant's right to counsel during DUI processing, particularly in light of defendant's ability to challenge the instrument's reliability, either by seeking independent testing or by introducing evidence of the "out of range" reading.
7. It is true that we have recognized that statutory violations other than denial of counsel may also compel suppression. See State v. Yudichak, 147 Vt. 418, 421, 519 A.2d 1150, 1152 (1986) (administering blood test, without offering to give a breath test as required by the statute, necessitates suppression of test results). In support of his argument that suppression is warranted here, defendant relies on State v. McCrossen, 129 Wis.2d 277, 385 N.W.2d 161 (1986), which we cited approvingly in Gilman for the proposition that a violation of a statutory right to an elective second breath test warrants suppression of the evidentiary test. Gilman, 173 Vt. at 116, 787 A.2d at 1243. This reliance on McCrossen is misplaced. The statute at issue in McCrossen provides that a DUI suspect " 'shall be permitted, upon his or *317 her request, [an] alternative test provided by the agency ... or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test.' " McCrossen, 385 N.W.2d at 165 n. 3 (quoting W.S.A. § 343.305(5)). The defendant in McCrossen asked for a second test because she could not believe the result of the breathalyzer. She informed the officers that she wanted either a blood or urine test. The officers told defendant that she would have to pay for it, to which defendant agreed. The officers, however, retained defendant in jail and never administered the requested alternative test. Defendant was never informed that she could be released in order to get an alternative test, or that there was an alternative test that the police department could administer at the department's expense. McCrossen, 385 N.W.2d at 163. In sum, this constituted a deliberate violation of defendant's statutory rights that deprived her of a meaningful opportunity to challenge the state's evidence.
8. In contrast, defendant here was adequately informed of his statutory rights during DUI processing. The processing officer attempted in good faith to comply with defendant's request of a second police-administered test, and defendant was advised of his right to secure independent testing once the DataMaster returned the error message. Therefore, there is no evidence of the deliberate deprivation of statutory rights that occurred in McCrossen. In other words, nothing suggests here that the State was trying to benefit from its own violation of the law, which is one of the concerns that we have addressed by adopting the suppression remedy. See Gilman, 173 Vt. at 115, 787 A.2d at 1242. We discern no reason to extend the remedy of suppression where, as here, there is no evidence that performance of the instrument affected the validity of the first BAC result, there is no claim of bad faith on the part of the officers, and defendant has been properly advised of his right to additional independent testing.
Affirmed.
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