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State v. Velez1/3/2003
ropriate time during DUI processing, and the public defenders, who equally must comply with their statutory obligation to counsel detainees.
10. The refusal of a public defender to speak with a DUI detainee frustrates this statutory scheme, resulting in no less serious a violation of the detainee's rights than ensues when a police officer fails to assist a detainee in obtaining a meaningful consultation in accordance with the statute. From the perspective of the detainee, the result is the same no matter which agency of state government fails to comply with its statutory mandate: behavior by a state official prevents the detainee from consulting a lawyer. As we stated in State v. Fredette, "[t]his Court will not tolerate deliberate efforts by law enforcement personnel to thwart an arrestee's meaningful opportunity to consult with counsel." 167 Vt. at 587, 705 A.2d at 549-50. Nor will we tolerate deliberate refusals by public defenders to provide detainees with an opportunity for consultation.
11. Nothing in our prior decisions in Fredette and Ironside compels a different result. In Fredette, we declined to suppress evidentiary breath test results on the grounds that the arresting officer had provided the defendant's attorney with incorrect information about the detainee's driving history. 167 Vt. at 587-88, 705 A.2d at 550. We held that "[t]he statutory right to counsel concerns an arrestee's opportunity to consult freely with an attorney, not ... the attorney's right to consult with, or obtain correct information from, police." Id. In State v. Ironside, 167 Vt. 628, 711 A.2d 663 (1998) (mem.), we again declined to suppress evidentiary breath test results. In Ironside, as in the case before us today, the public defender contacted by the processing officer refused to advise the detainee on whether to submit to a breath test after the processing officer refused to disclose information about the detainee's driving record to the public defender. The defendant in Ironside had the opportunity to speak with an attorney on the telephone before and after the attorney spoke with the processing officer, but argued that "counsel's subsequent refusal to provide legal advice ... was functionally equivalent to a total denial of the **716 opportunity to consult with counsel." Id. at 629, 711 A.2d at 664. We decided this consultation satisfied the requirement of 23 V.S.A.§ 1202(c) *28 that DUI detainees have an opportunity to consult with counsel, holding that "the attorney's choice to withhold advice, in the belief that defendant's recollection of his prior record was not reliable, does not negate this fact [that defendant had a private telephone consultation with an attorney]." Id. at 630, 711 A.2d at 664. Ironside can be distinguished from the case before us today because for all we know, in Ironside the conduct of the public defender was based on that individual lawyer's view of what advice could be given under the circumstances. There was no indication in Ironside that the defender general was violating a specific statutory obligation imposed on that official. Here, the record shows that the on-call attorney's conduct was in response to specific direction from the defender general not to provide any legal services to the operator unless the police officer disclosed the operator's prior record. The defender general's instruction breached the defender general's responsibility under 23 V.S.A. § 1202(g) to provide twenty-four hour counsel, and this breach caused this defendant not to receive needed representation.
12. We note that in neither Ironside nor Fredette did we conclude that the police should not share with the public defender what information they had available about a detainee; we held only that they should not be made the gua
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