SCOV Law Blog: Blame it on geography

Editor’s note: This piece from the SCOV Law Blog is by Elizabeth Kruska

State v. Giguere, 2017 VT 40

Gavel

Creative Commons photo by walknboston via Flickr

The Canaan police department — in sparsely populated Essex County — gets locked at night. To get in after hours, you have to locate the key. You don’t need to resort to extremes or anything, you just need to call the police chief.

This system works great except that sometimes the chief goes out of town. And from what I can gather from this opinion, if the chief is out of town, and he has the key, ain’t nobody getting into the Canaan Police Department. This likely isn’t a big deal except for the fact that in this sparsely populated part of Vermont, there aren’t a lot of police departments, which means there aren’t a lot of breath-testing machines in the area that can be used during a DUI processing.

Let’s be fair. I have never been to Canaan. I’d like to go there sometime. In fact, I’d like to visit all the towns in Vermont. We even have a club for people who do that. The thing about Canaan is that it is far away. You may think there are places close to Canaan. Yes. It is close to Canada. In fact, it touches Canada. Canaan, in fact, not only touches Canada, but it is somehow oddly partly north of New Hampshire. It’s the town way up in the northeast corner that curls over and sort of wraps around New Hampshire a little bit. It’s all the fun of being in New Hampshire, except you still have to pay sales tax and it’s not New Hampshire.

Why all this talk about the geography of the northeast-est town in the Northeast Kingdom? Because it’s super-relevant to why SCOV reversed the trial court here, that’s why.

Renee Giguere got into a car crash in Essex County and needed to go to the hospital. The closest hospital was in Colebrook, New Hampshire. The Vermont State Police got involved and went to visit her at the hospital to investigate the crash. When they did, they discovered she was possibly under the influence of alcohol. The trooper wanted to test her for alcohol, but found himself in a bit of a pickle. The law in Vermont very clearly sets forth a preference for breath testing over blood testing, but allows police to seek blood testing if breath testing equipment is not reasonably available.

The trooper wasn’t allowed to do a breath test in New Hampshire using New Hampshire equipment. He wasn’t certified by New Hampshire to use their machines, which, if I remember correctly, may be different than Vermont’s machines anyway. Alternative No. 2 is to take Renee back to Vermont, but breath machine options are pretty sparse in that neck of the woods. The closest one was at Canaan, but as I’ve mentioned above, Canaan wasn’t available due to that whole “the key is with the chief and the chief is gone” situation.

And it’s not like they could do the breath test the next day; alcohol is eliminated by the body fairly quickly. “Evanescent” is the word used by the Vermont Supreme Court. I think it’s a rather lovely word. If the police don’t get the alcohol test done relatively close in time proximity to the time of operation, they’re not going to know what the operator’s blood alcohol level was at the time of driving.

Oh, right. And here’s the other thing. The trooper couldn’t exactly arrest Renee since they were in, you know, New Hampshire. His powers generally stop at the Connecticut River (which belongs to New Hampshire, by the way). There are times when police can chase a driver across the river if they’re in fresh pursuit, but that doesn’t really apply here since Renee wasn’t trying to outrun the police like the Duke Boys running from Roscoe P. Coltrane to evade detection — she was on an ER gurney getting treatment when the police found her.

The trooper could’ve asked Renee if she’d go back to Vermont with him to do a breath test, but he didn’t do that. He could also have sung a line of “Walk Away Renee” but except for the fact it includes the name Renee, it isn’t really relevant here. Especially since she’d have been walking away when what he really needed was for her to go back to Vermont.

And here’s the other thing. The trooper couldn’t exactly arrest Renee since they were in, you know, New Hampshire. His powers generally stop at the Connecticut River.

 

Then there’s the whole travelling issue. To get from the hospital in Colebrook to the closest breath testing machine in Vermont — which would have been at the Canaan Police Department, would have taken an hour or so. I checked it out on Mapquest (yeah, that’s right, Mapquest), and it tells me it’s about 9 miles and about an 11 minute drive. Mapquest also helpfully tells me that traffic is light on this route, and for that piece of information I could not be more thankful.

I think in 2017 we should have a contest for “The Vermontest Thing In A Vermont Supreme Court Opinion.” The Canaan Police Department Key Situation would be a finalist. The trooper already knew he couldn’t go there. Apparently earlier in the night he had called the Canaan Police chief to get the key and found out the chief was out of town. No chief, no key.

Now I’m wondering if the trooper ever went to the police station and looked under the welcome mat to see if they had a key stashed there. Lots of people do it. I used to do it until the key froze to the underside of the mat, and now I have it stashed in a different, less freeze-y spot. When I was growing up, my friend always had a house key stashed on the front porch in “the cat thing,” which was some sort of automatic cat feeder that her family didn’t use for feeding the cat. They only used it for stashing a spare key. It was widely known that if you wanted to get into their house all you had to do was find the spare key in “the cat thing.” Also, and I am not making this up, her name is Renee.

In any case, this case illustrates a pretty good point that really only makes sense if you live in Vermont. In Vermont, if a place actually has a key, chances are good it only has one key. And if you need the key and the person who has the key is gone, you’re out of luck.

The trooper here was out of luck. He could’ve taken Renee (not my childhood friend, the defendant in this case) to the police barracks in either St. Johnsbury or Derby, but both of those locations were even farther away. Farther away means more time elapsed between the time of Renee’s driving and the time she would submit to a breath test. And as more time goes on, the more alcohol would be eliminated from Renee’s system. If they waited too long the alcohol would simply have evanesced away. Fearing he was out of options, he asked Renee to submit to a blood sample at the hospital. (Even though the blood sample was sought in New Hampshire, this is permissible by statute. Not a huge issue in this case. You’ll see why in a second.)

Renee refused to give a blood sample. She was charged with a DUI and issued a civil suspension notice, which she duly used to request a hearing. She moved to suppress the refusal, arguing that the request for blood was impermissible because the State couldn’t show that breath testing equipment wasn’t reasonably available. The trial court agreed with Renee and suppressed the refusal and found in her favor in the civil suspension.

The State appeals, and SCOV reverses.

For all the reasons I already set forth above — non-certification in New Hampshire, geography, keys — SCOV found that breath testing equipment wasn’t reasonably available. As a result, the request for a blood sample was reasonable, and Renee was properly subject to the civil suspension penalty for refusing to provide an evidentiary sample.

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  • jan van eck

    There remains a certain illogic here. The trooper is in some hospital in New Hampshire, and thus, being over the Border, is without any authority. Well, that would include the authority to demand a blood test sample from the crashed-up Renee. If the trooper is without authority to demand the sample, then not responding to the (void ab initio) demand cannot constitute a Refusal as contemplated in the Statute. Hey, who is that guy? In New Hampshire, he is a nobody.

    To expand on this reasoning a bit, let us postulate that Renee was actually inside Vermont but that the person making the blood-sample demand was a non-policeman; say, a filing clerk in the Department. The clerk makes the blood demand. Does anyone commit a breach of Regulatioins by refusing that demand? I don’t see it. “Want of authority” remains want of authority, no matter how you slice it.

    The SCOV reasoning is, to put it politely, cryptic. Another good reason not to drink and drive.

    • Jim Pelkey

      Jan, I thought the same thing when I read the article. If you have no authority in New Hampshire to arrest her, or take her back to Vermont, how can you demand a blood sample at a New Hampshire hospital. The SCOV Opinion also does not indicate if she was mirandized and given the option of speaking with an attorney. Bad decision.

      • jan van eck

        The rather cryptic commentary in the article suggests that “even though the blood sample was requested in New Hampshire, this is permissible by Statute.” That suggests that the Vermont Legislature, in its wisdom, has decided that it can extend its reach and authority to wherever it wants to. Presumably, that “Statute” allows the legislators of Vermont to extend the reach of its policemen into Quebec (you have to wonder what the fiercely independent Quebecois think of that idea). Where does it end? Halifax? Liverpool? Caracas?

        Judges were formerly lawyers, and lawyers are notorious for fuzzy thinking. Vote lawyers into the Legislature and you get these fuzzy-thinking Statutes. Seems to me that any self-respecting Vermonter takes the view, as espoused by the old grizzly-man John Wayne himself, that his authority over his lands extends “up this side of this valley, and up that other side of this valley, just a far as this Winchester can shoot – and not one inch farther.” Sounds pretty good to me. A border everyone instinctively understands.

  • Karl Riemer

    I’ve often wondered: why are breathalyzer machines not portable? Are they so delicate, so expensive, so proprietary that they can’t be brought to the scene of an accident or a bedside or wherever they’re needed instead of this constant dilemma of time elapsed? I don’t mean one at all times in the trunk of every cruiser, but why can’t a trooper radio a request to have a machine brought to the scene if bringing the human to a machine is problematic? I’m ignoring the issue of jurisdiction for the moment because the question would be the same if her bedside had been in St. Johnsbury, or if the Canaan machine had been available, or if she’d been arrested in Vermont: transporting an injured person is risky regardless of distance or borders – why not transport a machine instead? Does anyone know?

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