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State v. Benoir12/19/2002
Defendant Dennis Benoir appeals the denial of his motion to dismiss the DUI second charge against him and to suppress an evidentiary breath test. Defendant contends that the evidentiary breath test should have been suppressed because he failed to receive an independent blood test due to an inability to pay, and thus his right to an independent blood test at the state's expense, conferred upon him by 23 V.S.A. § 1203a(a), (d), the Public Defender Act, the Due Process Clause of the Fourteenth Amendment, and Chapter I, Article 10 of the Vermont Constitution was violated. We affirm.
2. The facts are not in dispute. On April 6, 2001, a state trooper stopped defendant's vehicle on Route 107, based on a report from a concerned citizen of a vehicle being driven in an erratic manner. The trooper processed defendant for DUI at the state police barracks in Bethel, during which time defendant provided an evidentiary sample of his breath. The trooper then advised defendant of his right to obtain a sample of his blood for independent testing and provided him with a test kit for that purpose. Defendant was also given a list of medical facilities that would provide independent blood-drawing services. He was then released on citation to appear in court.
3. Defendant then went to Gifford Memorial Hospital in Randolph and requested that an independent blood sample be **701 drawn using the kit the trooper had supplied. He was advised by the attending nurse that he would need to pay $50 in cash or by credit card in order to have his blood drawn by the hospital. Defendant was unable to provide the $50 or a credit card, and the hospital refused to draw his blood. Defendant eventually left the hospital without having his blood drawn. He did not attempt to have his blood drawn at any other medical facility.
4. Defendant was subsequently charged with DUI third, the State later amending the charge to DUI second. After defendant's motion to dismiss and to suppress the evidentiary breath test was denied, he pled guilty to DUI second, the plea conditioned upon the results of his appeal of the denial of his motion. Defendant was sentenced to twelve to twenty-four months, all suspended except for fifteen days on work crew, and he subsequently brought this appeal.
5. On appeal, defendant argues that his right to an independent blood test at state expense, provided him by 23 V.S.A. § 1203a(a), (d), the Public Defender Act, the Due Process Clause of the Fourteenth Amendment, and Chapter I, Article 10 of the Vermont Constitution was violated, requiring exclusion of the evidentiary blood test.
6. First, we find that Vermont's statutory scheme does not provide a DUI suspect with the right to an independent blood test at the state's expense. Vermont's DUI statute, 23 V.S.A. §§ 1200-1220a, gives a person suspected of DUI the right to obtain an independent blood sample to challenge the State's evidentiary test. See 23 V.S.A. § 1203a(a). The statute is clear and specific, however, as to who bears the ultimate financial responsibility for such a test: the test is obtained "at the person's own expense," *633 id., and the person seeking the test "is responsible for the costs of transportation, drawing the sample and subsequent analysis." Id. § 1203a(e); see also State v. Wright, 169 Vt. 573, 573, 740 A.2d 347, 348 (1999) (mem.) (plain language of statute indicates that suspect bears financial responsibility for testing). It is only when the facility where the sample is drawn is unable to obtain payment from the person seeking a test that the defender general becomes responsible for the costs. 23 V.S.A. § 1203a(e). Even then, the defender general may attempt to recoup those costs from the suspect. Id. (court may facilitate recoupment by imposing conditions o
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