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State v. Gilman11/9/2001
arris v. Sherman, 167 Vt. 613, 614, 708 A.2d 1348, 1349 (1998) (mem.).
The evidentiary test required to be administered by § 1202 must be administered within a short period of time to provide an accurate reading of the motorist's blood alcohol concentration. See Madonna, 169 Vt. at 99, 726 A.2d at 499. Defendant's construction of § 1202(g) would predicate the timeliness of the test on the availability of attorneys. The Legislature chose not to do so. Nevertheless, under § 1202, the police bear the burden of "actually attempting to contact counsel within the thirty-minute time period." Madonna, 169 Vt. at 100, 726 A.2d at 500. There can be no dispute that Trooper Letourneau carried the State's burden here; he made a diligent, good-faith attempt to contact counsel as defendant requested.
While the majority asserts that, in this case, exclusion of the evidence is not aimed at deterring illegal conduct by police officers, it applies the remedy to penalize "the State's refusal to comply with the law." As a matter of public policy one may agree that the State ought to fully fund the programs it mandates. But the State's failure to do so -absent constitutional command - has not, until now, triggered the exclusionary rule. If it is the State's lack of adequate funding for a program established by statute that "breeds contempt for the law," better to repeal the statute than be censured by this Court for "breaking the law." I am authorized to state that Justice Skoglund joins in this dissent.
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