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State v. Velez1/3/2003
st of his right to counsel, and of "actually attempting to contact counsel within the thirty-minute time period." Madonna, 169 Vt. at 100, 726 A.2d at 500. On the other hand, however, the Legislature has recognized the State's need to efficiently and effectively enforce DUI laws. Accordingly, the above right to consult with counsel is limited in scope. See 23 V.S.A. § 1202(c) ("A person who is requested by a law enforcement officer to submit to an evidentiary test or tests has a right as herein limited to consult an attorney ....") (emphasis added). First, an individual must decide whether or not to submit to the test within a reasonable time, not more than thirty minutes following an initial attempt to contact an attorney. Id. Second, the individual "must make a decision about whether or not to submit to the test or tests at the expiration of the 30 minutes regardless of whether a consultation took place." Id. (emphasis added).
18. As in Gilman, the majority's holding frustrates this mandated balance. While this Court rightly refuses to tolerate law enforcement personnel's deliberate attempts to interfere with a detainee's right to consult with counsel, the statute does not guarantee a detainee a "fruitful or flawless consultation." State v. Fredette, 167 Vt. 586, 587, 705 A.2d 548, 550 (1997) (mem.). As such, " '[t]he statutory mandate is fulfilled when reasonable efforts are made to allow an arrestee to consult privately with counsel.' " Id. at at 587, 705 A.2d at 549 (emphasis added) (quoting State v. West, 151 Vt. 140, 144-45, 557 A.2d 873, 876 (1988)). Here, trooper Nally attempted to contact two on-call public defenders. He left two messages for attorney Spaulding, neither of which were returned within the thirty-minute period. After seven attempts, he then contacted attorney London, who refused to speak with Velez following trooper Nally's refusal to provide London with results of a motor vehicle record check. We have twice before held that lack of police disclosure is not grounds for finding that a detainee was deprived of his statutory right to counsel. See State v. Ironside, 167 Vt. 628, 629-30, 711 A.2d 663, 664-65 (1998) (mem.) (finding that police are not obligated to provide record check information to counsel); Fredette, 167 Vt. at 587-88, 705 A.2d at 550 (holding that an individual's statutory right to counsel concerns **719 his "opportunity to consult freely with an attorney, not ... the attorney's right to consult with, or obtain correct information from, police"). Consequently, by making a diligent, good-faith attempt to contact counsel as requested by Velez, Nally carried the State's statutory burden here. See Madonna, 169 Vt. at 101, 726 A.2d at 500 ("[S]o long as there is an attempt to contact counsel, *32 a decision must be made at the close of the thirty-minute time period.") (emphasis added).
19. I entirely agree with the majority's observation that the public's interest in keeping drunk drivers off the road is not served by the current conflict between the office of the public defender and the police. The gamesmanship between the two agencies--which does credit to neither--is not, however, a sufficient legal rationale for reaching an absurd result. The defendant here had the full benefit of the statutorily created--and statutorily limited--right to require the State to make a good faith effort to contact counsel within the thirty-minute time period. It is the public that is made the "scapegoat" in this case. I respectfully dissent. I am authorized to say that Justice Skoglund joins in this dissent.
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