Editorâs note: This piece from the SCOV Law Blog is by SCOV Law editor Andrew Delaney.Â
State v. Richard, 2016 VT 75
[M]r. Richard wasnât interested in being pulled over. He ran a stop sign, so a trooper started following him. Mr. Richard was allegedly driving erratically. When the trooper turned on the blue lights, Mr. Richard kept going until he reached his driveway. He got out and started walking up the ramp to his house. The trooper stopped him.
The trooper testified that Mr. Richard smelled like booze and seemed out of it. Mr. Richard repeatedly said, âDonât do this,â and when the trooper said, âCâmon letâs go,â Mr. Richard said, âNope, nope, nope.â Now itâs been a little while since my drinking days and I donât want to sound like Iâm on the trooperâs side here, but ânope, nope, nopeâ is â in my, uh, training and experience â classic drunkanese for âno, thank you, sir.â
The trooper thought so too, and cuffed Mr. Richard and gave him a ride to the police station. To be fair, Mr. Richard was already home, so I can understand why from his perspective this was a nope-nope-nope situation. There was an exchange after the breath test at the station about a trip to the hospital for an independent blood test but Mr. Richard didnât have the supposedly required 75 bucks. So Mr. Richard said, âWell, I don’t have 75 bucks, so.â My wife hates when I talk like that. I can always expect a, âSo, what?â The trooper apparently did not have my wifeâs pet peeve so that was the end of the conversation.
A screener came by. Mr. Richard didnât want to talk to her. He wanted his wife to come get him. The screener was like, âHmm. He seems drunk. Perhaps on drugs. And his wife ainât here. Throw âim in the pokey!â Of course thatâs not the real dialogue, but as my first-grade teacher so kindly put it, I have âan active imagination.â
After getting slapped with a DUI charge, Mr. Richard moved to suppress, arguing that the arrest was without probable cause. He also moved to suppress the breath test because the trooper deterred him from getting an independent test. After two days of testimony, he added a throwing-me-in-the-pokey-prevented-me-getting-an-independent-test argument. The trial court said, âNope, nope, nope,â and denied the motions. Mr. Richard moved to reconsider for another ânope.â So he entered a conditional plea and now appeals.
Mr. Richardâs first argument is that several important factual findings by the trial court were plumb loco. Given that the SCOV reviews findings only for clear error, you can probably guess where this argument goes. Basically, the SCOV goes through the four factual and quasi-factual issues Mr. Richard raises and finds something in the record to support each finding. Weâve all seen this show before.
Mr. Richard next argues that there wasnât probable cause for his arrest. Basically, he says the trooper had never met him before, so the trooper didnât have any basis to say whether Mr. Richardâs speech was slurred or just his normal way of conversinâ. He also points out that there were no breath or field-sobriety tests before the arrest.
Basically, the SCOV says that slurred speech is an objective sign of intoxication. The SCOV also points out that between the slurred speech, the erratic driving, and the smell of booze, the preliminary-breath and field-sobriety tests mightâve been helpful in making a probable-cause determination, but werenât objectively necessary.
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The SCOV is not convinced. The trooper had made roughly 120 career DUI arrests before his chance encounter with Mr. Richard. The SCOV rejects Mr. Richardâs all-the-people-slur-some-of-the-time-and-some-of-the-people-slur-all-the-time-but-not-all-the-people-slur-all-the-time argument. Basically, the SCOV says that slurred speech is an objective sign of intoxication. The SCOV also points out that between the slurred speech, the erratic driving, and the smell of booze, the preliminary-breath and field-sobriety tests mightâve been helpful in making a probable-cause determination, but werenât objectively necessary.
Next, we turn to the deterred-from-an-independent-test argument. The SCOV spends a little time discussing this. It acknowledges the importance of independent testing. But thatâs about as far as it goes. The trooper did tell Mr. Richard that heâd need to pay for the test and heâd probably be turned away if he didnât have $75 to pay up front. Mr. Richard arguably didnât go to the hospital âcause he didnât have 75 bucks.
The defender general foots the bill if the accused canât pay. And while Mr. Richard contends that the trooperâs statements deterred him from seeking an independent test, the SCOV reasons that the trooperâs statements werenât necessarily untrue and Mr. Richard didnât bring in anything to show that the statements were untrue. Iâm not sure I agree with that formulation of how things should work, but itâs the framework the SCOV chooses.
And, as the SCOV has reasoned before, thereâs nothing that requires a police officer to inform a DUI suspect that the defender general will pick up the tab for an independent test if the suspect canât afford it. As Robert Louis Stevenson wrote: âThe cruelest lies are often told in silence.â Youâre welcome. I love that line too.
Finally, the SCOV deals with the they-threw-me-in-the-pokey-to-prevent-an-independent-test argument. Importantly, Mr. Richard focuses on an alleged constitutional violation rather than on the independent test statute. Here, Mr. Richard was detained as an incapacitated person. Even the trial court wasnât sure if that was done properly. Mr. Richardâs wife couldâve picked him up.
But here the SCOV reasons that even if there was a constitutional violation here (which it does not determine), it happened after the first breath test and so the exclusionary rule doesnât kick out the first breath test because that had already happened. There is a light in this decision for the criminal-defense bar, however. The SCOV seems to indicate that an argument under the independent test statute might just fly in this scenario.
So the SCOV affirms the trial court.
Justice Skoglund, joined by Justice Robinson, concurs. The concurrenceâs primary point is that the incapacitated-persons statute can be misused and appears to have been misused in this situation. The screener didnât really do her job. Mr. Richard was not in danger nor did he appear to pose a danger to others. In fact, he was calm and logical in many ways â and his wife was going to come get him. This wasnât an appropriate situation to toss Mr. Richard in the pokey for having had some drinks.
Fun fact: Though I canât access them at the moment for some reason, it looks as though the Legislature has been busy with the applicable statutory provisions here. Thereâs even a new section titled âIncarceration for inebriation prohibited.â I wonder what thatâs all about …