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State v. Stenson6/24/1999
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
Defendant appeals from his convictions for driving under the influence of alcohol (DUI) and for retail theft. He seeks to have the convictions reversed, arguing that: (1) the arresting officer violated Vermont Rule of Criminal Procedure 3(a)(5) by questioning defendant at the police barracks, (2) the police should not have questioned defendant without an attorney present when there had already been an initial consultation with an attorney, and (3) he did not knowingly and intelligently waive his constitutional right to counsel at trial. We affirm.
Defendant argues that his conviction should be reversed because the arresting officer went beyond the limited scope of a DUI arrest, as defined by Vermont Rule of Criminal Procedure 3(a)(5), by questioning defendant at the police barracks. In State v. Forcier we held that, where a defendant was interrogated upon being stopped for a breath test, the statements made by defendant during the interrogation violated Vermont Rule of Criminal Procedure 3(a)(5), which limited the purpose of the stop to obtaining a sample of breath or blood. See 162 Vt. 71, 77, 643 A.2d 1200, 1203 (1994). Our holding in that case rested entirely on the legislative intent and the plain meaning of the language of Rule 3(a)(5):
detention for DUI can serve only "the limited purpose of obtaining a sample of breath or blood." Id. at 75, 642 A.2d at 1201. Since our decision in that case, the Legislature has amended Rule 3(a)(5) to strike this precise language. See 1997, No. 117 (Adj. Sess.) § 30. Therefore defendant's argument on this basis necessarily fails.
Defendant also argues that the waiver of his Miranda rights that he executed before the interrogation is invalid because the police questioned defendant without an attorney present after he had already had an initial consultation with an attorney. This argument is similarly without merit. It is true that a defendant who has invoked a constitutional right to an attorney may not be further interrogated without the defendant's attorney being present. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (defendant who invokes the Fifth Amendment right to counsel during custodial interrogation may not be subjected to further interrogation until counsel is made available to defendant). The right to speak to an attorney provided by 23 V.S.A. § 1202(c), however, is not grounded in either the Vermont or United States Constitution, but only in the statute itself. See State v. Nemkovich, ___ Vt. ___, ___, 712 A.2d 899, 901 (1998) (constitutional protections available in criminal proceedings do not attach to statutory right to counsel under 23 V.S.A. S 1202(c); right to advice of counsel created in Miranda does not apply because decision to take breath test is not critical stage of prosecution and because evidence sought is physical rather than testimonial). Requesting an attorney under 23 V.S.A. 1202(c) is not in itself equivalent to invoking the constitutional right to an attorney, which is the right to which the Edwards rule applies.
Our holding in State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268 (1991), out of which the right provided by 23 V.S.A. § 1202(c) arose, makes clear that the right to have an attorney contacted before deciding to take a breath test stems from the unique circumstances associated with the DUI stop. The purpose of affording a right to contact counsel in this situation is distinct from the constitutional right to an attorney under the Fifth Amendment to the United States Constitution and Article Ten of the Vermont Constitution. Therefore, the fact that defendant exercised his statutory right to
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