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State v. Massey4/16/1999
State v. Massey (97-541)
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from District Court of Vermont, Unit No. 1, Windham Circuit January Term, 1999 Robert Grussing, III, J.
Defendant, Edwin James Massey, appeals his conviction for violating 23 V.S.A. § 1201(a) operating a motor vehicle on a public highway while under the influence of intoxicating liquor. Defendant contends that the trial court erred by: (1) failing to suppress statements he made while in custody for processing; (2) failing to declare a mistrial or provide a limiting instruction to the jury after defendant testified about the results of a roadside breath test (alcosensor); (3) admitting the results of a DataMaster breath test; and (4) limiting the jury's consideration of the issue raised by defendant that the police prevented or denied him from obtaining an independent blood test. We affirm.
In the town of Rockingham at approximately 1:00 p.m. on the afternoon of November 13, 1996, defendant drove his truck off of the road and into a telephone pole. The weather was clear and the road conditions were good. The impact severed the pole and brought power lines down across the road. Two law enforcement officers from the Vermont State Police arrived at the scene shortly after the accident.
The first officer smelled alcohol on defendant's breath, observed defendant's slow, deliberate movements, bloodshot eyes, and noticeable confusion when walking near the downed power lines. There was no apparent reason for the accident other than driver impairment, although defendant claimed that he lost control of his truck while lighting a cigarette. The officer administered a roadside alcosensor breath test, the results of which fortified his belief that defendant was under the influence of alcohol. In accordance with V.R.Cr.P. 3(a)(5) (Cum. Supp. 1998), the first officer took defendant into custody and transported him to the police barracks for an infrared breath test (DataMaster).
On the way to the police barracks, defendant made a number of unsolicited statements to the police that were admitted into evidence at trial. The officer testified that he did not believe defendant was sincere when he stated, "You guys are great. You guys are special," and then told the officer that he couldn't do their job because he would be tougher than they were being with him.
At the barracks, defendant telephoned an attorney and agreed to take the DataMaster test. After the test was administered but before the results were obtained, defendant exclaimed "I didn't have a drink today. I told you that before." Then he said "I want a blood test. I'm not answering any questions." The test results indicated a blood alcohol content (BAC) of .195 percent. During the course of processing, the officer provided defendant with information regarding an independent test: "Since you are being released, if you wish additional tests to be paid for at your own expense, you will have to make your own arrangements. Do you intend to obtain additional tests?" In response to defendant's affirmative answer, the officer gave him a blood test kit and a list of facilities where he could go to obtain the independent test. Defendant was then permitted to make phone calls to secure a ride from the barracks. Defendant was unable to arrange a ride. At approximately 3:45 p.m., roughly an hour after the
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