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State v. Gilman11/9/2001
On Appeal from District Court of Vermont, Unit No. 3, Caledonia Circuit March Term, 2000 Alan W. Cook, J., and Elizabeth A. Leopold, Acting J.
Defendant Charles Gilman appeals a conviction for operating under the influence of intoxicating liquor (OUI) pursuant to 23 V.S.A. § 1201(a)(2), entered on a conditional plea. On appeal, defendant argues that the Caledonia District Court erred in failing to suppress evidence that he refused to take a breath test and allowing such evidence to be introduced pursuant to 23 V.S.A. § 1202(b). He argues that his refusal was obtained in violation of his statutory right to counsel because: (1) his refusal to provide a breath sample was not voluntary because he was not afforded a meaningful opportunity to consult with a public defender, and (2) the police's failure to provide consultation with an interested party working on defendant's behalf rendered his refusal involuntary. We reverse on the first issue and do not reach the second.
The material facts are not in dispute. At approximately 5:30 p.m., on October 9, 1998, defendant was stopped, arrested, and processed for OUI by a Vermont state trooper. At the barracks in St. Johnsbury, as part of the arrest procedure, the trooper read to defendant from a standardized "implied consent" processing form, explaining defendant's statutory implied consent rights to him. When asked if he wished to consult an attorney before deciding to submit a breath sample for analysis, defendant answered affirmatively and gave the trooper the name of a specific attorney to call. The trooper reached the named attorney, but she was unable to speak with defendant because she was a state's attorney in another county at the time. Defendant told the trooper that he did not know any other attorney to call, so the trooper gave defendant a list of public defenders. Defendant selected an attorney from the list, and the trooper twice tried to contact the attorney without success. The trooper then called the remaining nine attorneys on the list, but reached only one, who advised him that she was no longer a public defender.
In all, the trooper made twelve phone calls to eleven attorneys between 6:40 p.m. and 7:10 p.m. The trooper's efforts met with futility primarily because, at the time, the Defender General's Office did not provide state-wide, on-call service on weekdays between 4:30 p.m. and 9:00 p.m. At the end of this period, defendant was again asked to provide a breath sample, but refused.
In October 1998, an information was filed against defendant charging him with misdemeanor OUI in violation of 23 V.S.A. § 1201(a)(2). In November 1998, a hearing was held regarding defendant's civil license suspension pursuant to 23 V.S.A. § 1205(a). Defendant argued at that hearing that he was denied his statutory right to counsel. In December 1998, defendant filed a motion to suppress use of the refusal in the criminal case because, he argued, his statutory right to counsel was violated. Defendant asserted the same violation during both the civil and criminal proceedings, namely, that because the Defender General did not provide twenty-four hour public defender coverage as required by 23 V.S.A. § 1202(g), he was denied a meaningful opportunity to consult with counsel and his refusal to take the test was involuntary. On January 26, 1999, the court ruled on defendant's motion; it concluded that defendant's "refusal was not obtained in violation of his statutory right to counsel," and entered judgment for the State in the civil suspension proceeding. The court also denied defendant's motion to suppress evidence of the refusal in the criminal case. On July 23,1999, defendant entered into a conditional plea, reserving the right t
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