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State v. Powers5/7/2004
Defendant Edmund J. Powers appeals from a Windham District Court judgment for the State in a civil suspension hearing. Defendant believed that his conversation with an attorney during a DUI processing was being recorded, and this belief prevented him from asking whether his prior arrests would affect his current charges. He claims that because of this belief, he was denied his statutory right to a meaningful consultation with an attorney before submitting to an evidentiary breath test. The district court ruled that even if defendant was inhibited, this inhibition did not prejudice his case. We conclude that defendant reasonably believed his conversation with an attorney was being unjustifiably monitored, and that this belief inhibited his conversation. We therefore hold that defendant demonstrated the necessary causal nexus between the illegal police action and the evidence he sought to suppress. As a result, we reverse.
2. The trial court made the following findings. On August 18, 2002, at approximately 12:30 a.m., defendant was arrested and processed in Windham County for suspected driving under the influence. When defendant arrived in the processing room at the police station, he asked the officer conducting the processing if the interview was being recorded on audio or video tape. The officer responded yes to both questions. Neither defendant nor the officer mentioned the recordings again. After receiving his Miranda warning, defendant waived his right to have an attorney present. The officer then read defendant his statutory rights as required by 23 V.S.A. § 1202(d). [FN1] Defendant asked to consult *608 with an attorney before submitting to an evidentiary breath test. The officer dialed the public defender, handed the telephone to defendant, and left the room. The officer left the processing room immediately, went to the room containing the recording device, and turned off the audio tape, but not the video tape. Because the officer could not turn off the sound until he reached the recording device in the other room, the first twenty-seven seconds of defendant's conversation were captured on tape. These twenty-seven seconds were twice admitted into evidence by the trial court, and the court incorporated the contents of the conversation into its ruling. [FN2] The officer never told defendant that he had turned off the recording. After approximately seven minutes, the telephone conversation ended. Defendant refused to provide an evidentiary breath sample.
FN1. (d) At the time a[n evidentiary breath] test is requested, the person shall be informed of the following statutory information:
(1) Vermont law authorizes a law enforcement officer to request a test to determine whether the person is under the influence of alcohol or other drug.
(2) If the officer's request is reasonable and testing is refused, the person's license or privilege to operate will be suspended for at least six months.
(3) If a test is taken and the results indicate that the person is under the influence of alcohol or other drug, the person will be subject to criminal charges and the person's license or privilege to operate will be suspended for at least 90 days.
(4) A person who is requested by a law enforcement officer to submit to an evidentiary test or tests has the limited right to consult an attorney before deciding whether or not to submit to such a test or tests. The person must decide whether or not to submit to the evidentiary test or tests within a reasonable time and no later than 30 minutes from the time
of the initial attempt to contact the attorney regardless of whether a consultation took place....
....
(6) If the person refuses to take an evidentiary test, the refusal may be offered into evidence a
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