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State v. Velez1/3/2003
The State takes this interlocutory appeal, pursuant to V.R.A.P. 5(b)(1), from a Windham District Court decision granting defendant Jorge Velez's motion to suppress his evidentiary breath test results. Defendant argued that he was deprived of the right to counsel that 23 V.S.A. § 1202(c) establishes for DUI detainees because the on-call public defender contacted by the arresting officer refused to speak with him. In light of this Court's decision in State v. Gilman, 173 Vt. 110, 787 A.2d 1238 (2001), the district court granted defendant's motion to suppress on the grounds that even if the police act reasonably, the State denies the detainee's right to counsel if the public defender's office does not comply with its statutory mandate to provide twenty-four hour legal assistance to DUI suspects. We affirm.
2. On February 4, 2001, defendant was stopped for drunk driving. During the course of processing defendant for driving under the influence (DUI), Vermont State Trooper Matthew Nally read defendant the standard "implied consent" processing form used for DUI stops that explains the rights that detainees have when asked by Vermont law enforcement officials to submit to a breath test. The information provided to DUI detainees operates as a supplement to the Miranda warnings, explaining the implications of Vermont's implied consent and criminal refusal laws. See State v. Morale, 174 Vt. 213, ----, 811 A.2d 185, 189-90 (2002). *25 Vermont's "implied consent" warning, as read to defendant by the processing officer, includes the following standard language: "You have the right to talk with a lawyer before deciding whether or not to submit to a test. If you want a lawyer a Public Defender will be contacted for you at the state's expense, regardless of your income, or an attempt will be made to contact an attorney of your choice at your expense."
3. Defendant told the officer that he understood these rights and that he wished to consult with an attorney before making his decision. The trooper telephoned the public defender who was on-call at the time and stated that a DUI suspect wished to speak with her. The public defender asked the officer if he had run a motor vehicle record check, and he replied that he was not obligated to provide that information and that he would not do so. The public defender then ended the call, refusing to speak with defendant.
**714 4. The transcript of the processing of Velez for DUI shows that defendant was bewildered and panicked as a result of the inconsistency between the trooper's statements, first, that as a DUI detainee, Velez had a right to consult with an attorney, but second, that the attorney contacted was refusing to speak with him. Velez repeatedly stated that "I'm very confused. I'm at a loss." He insisted, "I can't do anything without an attorney advising me." He asked the officer, "What's the right thing to do? Can I just ask you as a human being."
5. Trooper Nally could not give defendant legal advice. He read to defendant again from the standard processing form, and repeated the question "Will you give a sample of your breath as evidence?" At the expiration of the thirty-minute period after which a DUI suspect is required to decide whether to submit to an evidentiary test under § 1202(c), Velez provided a breath sample.
6. The State's position is that our holding in Gilman does not support suppression of defendant's breath test here and that, despite defendant's inability to speak with counsel through no fault of his own, there is no remedy. The State contends that the arresting officer did all that he was required to do by telephoning the public defender and telling her that defendant wished to speak with her. It argues that the right to counsel for DUI detainees is limited i
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