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State v. Green12/21/2001
utory limit "at the time the person was operating" the vehicle. 23 V.S.A. § 1205(i).
This Court has already held under a similarly worded predecessor statute that, in cases where the defendant refused to submit to a test, the trial court is not required to find that the defendant was operating the vehicle, but rather only that "the officer had reasonable grounds to believe there was operation or control." Shaw v. Vermont District Court, 152 Vt. 1, 4, 563 A.2d 636, 638 (1989). In the State's view, there is no separate statutory element of operation contained in § 1205(h), and thus the holding in Shaw should apply equally to cases in which the defendant submitted to a test.
We find the State's argument unpersuasive. The only plausible interpretation of § 1205(h)(1) is that the officer must have a reasonable basis for requesting that a motorist take a test. If the person refuses to take the test, it is the refusal itself, not operation while intoxicated, that is the basis for any license suspension. Because license suspension may follow from a refusal to take a test, the Legislature has elected to protect motorists from capricious or unreasonable demands that they submit to a test by requiring "that it be adjudicatively determined whether or not the belief of the officer, from which the request for a test is generated, is a reasonable one." State v. District Court, 129 Vt. 212, 214, 274 A.2d 685, 686 (1971).
This does not mean, however, that, in the event the motorist does submit to a test, the State need not demonstrate that the motorist was operating a vehicle at the time alleged. When a motorist takes a test that reveals an alcohol concentration above the legal limit, the ensuing license suspension is for "operating, attempting to operate or being in actual physical control" of a vehicle while intoxicated or with an alcohol concentration exceeding the legal limit. 23 V.S.A. §§ 1205(h)(4), 1205(i). Because the basis of the suspension is not the refusal, the State cannot prevail merely by showing that there was a reasonable basis for the officer to ask the person to take the test. Indeed, accepting the State's position would raise substantial due process concerns. Cf. LaFaso v. Patrissi, 161 Vt. 46, 51, 633 A.2d 695, 698 (1993).
Affirmed.
Jeffrey L. Amestoy, Chief Justice
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice
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