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State v. May4/14/2005
ENTRY ORDER
1. The State appeals from the district court's order suppressing an evidentiary breath test and certain statements made by defendant to a University of Vermont (UVM) police officer during a roadside stop for speeding that resulted in an arrest and processing for DUI. The trial court suppressed the evidence because defendant had not been allowed to use his cell phone to call either his father or his attorney in Connecticut before deciding whether to take a preliminary breath test at roadside. The trial court held that failure to allow defendant to make the cell phone call was a flaw in the procedure that rendered defendant's later statements and breath test at the police station inadmissible. We reverse and remand.
2. Defendant was picked up for speeding on Main Street in Burlington by a UVM police officer. While the officer was running a plate check, defendant telephoned his father in Connecticut on his cell phone to tell him that he had been stopped for speeding. When the officer returned to the car, he noticed that defendant's eyes were bloodshot and watery, that he had a moderate odor of alcohol on his breath, and his speech was slurred. The officer asked defendant to step out of the car and perform some field dexterity tests. Defendant did so, but left his cell phone in the car. Defendant failed all of the tests. The officer asked defendant to give a breath sample on the nonevidentiary field screening device, known as the alco-sensor, but defendant was unsure what to do. He asked to call his father and also his attorney in Connecticut. The officer refused to allow defendant to return to the car to retrieve the cell phone, although the officer conceded that he has allowed suspects to make roadside calls if the cell phone is on their person, and that he has sometimes retrieved cell phones for suspects. After declining the alco-sensor test, defendant was arrested and taken to the UVM police department for DUI processing.
3. At the station, defendant asked to speak to a lawyer after hearing the implied consent advice. See 23 V.S.A. § 1202(d) (requiring that persons from whom evidentiary tests are requested first be informed of, among other things, their right to consult an attorney prior to taking the test; penalties for refusing to take the test; and potential penalties for test results showing that the person was under the influence of alcohol or other drugs). He wanted to call a lawyer he knew in Connecticut, but the officer told defendant he had to speak to a Vermont lawyer. The on-call public defender was called, and defendant spoke to him for ten minutes, at which point defendant claims the public defender hung up, despite the fact that defendant claimed to have additional questions. After this consultation, defendant took the breath test that showed defendant's BAC of .173%.
4. Defendant raised three issues in his motion to suppress: 1) that under State v. Carmody, 140 Vt. 631, 442 A.2d 1292 (1982), the police officer was required to permit defendant to make roadside calls on his cell phone; 2) that defendant's exercise of his right to counsel before taking the evidentiary breath test at the station was unilaterally terminated by the on-call public defender and therefore was not a meaningful consultation; and 3) that the UVM police department is not permitted to act as law enforcement officers with authority to arrest defendant in these circumstances. The district court reached only the first issue. It found that the UVM police officer's refusal to permit the roadside calls prior to defendant's decision on the alco-sensor test was a flaw in the procedure that rendered the evidence obtained after that point inadmissible. Despite this limited
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