State v. May

Summary

The Vermont Supreme Court reversed and remanded a trial court order suppressing an evidentiary breath test and statements following a DUI stop. The court held that the defendant’s inability to use his cell phone before deciding whether to take a preliminary, nonevidentiary breath test lacked a causal nexus to the later evidentiary breath test and did not warrant suppression. The court left open on remand whether the station-house attorney consultation was adequate and whether the University of Vermont police officer had authority to arrest the defendant.

Holdings

1. No. Suppression of the evidentiary breath test was inappropriate because the preliminary test was not legally or factually connected to the later decision to take the evidentiary test.
2. No. The record did not establish a causal nexus between the refusal to permit the telephone calls and any statements made afterward.
3. No. Vermont's implied-consent statute gives a DUI suspect a right to consult an attorney before deciding whether to submit to the evidentiary test, but does not entitle the suspect to consult the attorney of his choice.
4. No. The court declined to find plain error because the issue was not preserved, had not previously been decided under the state constitution, and was not obvious from the facts.

Questions Presented

1. Whether refusal to permit roadside telephone calls before the defendant decided whether to take a preliminary, nonevidentiary alco-sensor test required suppression of the later evidentiary breath test.
2. Whether the same roadside conduct required suppression of statements made after the refusal but before the consultation with the on-call public defender.
3. Whether the defendant's unpreserved argument that the officer's restriction on cell-phone use invalidated his purportedly voluntary consent under the Vermont Constitution constituted plain error.
4. Whether refusal to allow consultation with the defendant's Connecticut attorney before the evidentiary breath test required suppression when the defendant was permitted to consult an on-call Vermont public defender.
5. Whether the University of Vermont police officer had authority under the Vermont Constitution to stop and arrest the defendant.

Disposition

reversed_and_remanded