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Vermont Supreme Court Rules DUI Breath Test Subject to Voluntariness Challenge Despite Implied Consent Law

by Mark Wilson

The Supreme Court of Vermont held that the state’s implied consent statute does not bar a voluntariness challenge to a breath test.

Every person who operates a motor vehicle on a Vermont highway is deemed to have given consent to an evidentiary breath test to determine blood alcohol concentration (“BAC”). 23 V.S.A. § 1202(a)(l). A person must submit to an evidentiary breath test whenever a law enforcement officer has reasonable grounds to believe the person is driving under the influence of alcohol or other intoxicants. § 1202(a)(3). Refusal to comply may result in a six-month suspension of the person’s driver’s license. § 1202(d)(2). The refusal may also be introduced as evidence in a criminal trial for driving under the influence of intoxicants (DUI). § 1202(d)(6).

Acting on a tip, Vermont police stopped a vehicle driven by Walker Edelman on July 13, 2016, for suspicion of DUI. When the officer smelled alcohol and noticed that Edelman’s pupils were dilated, he ordered Edelman to step out of the vehicle to perform field-sobriety tests. Those tests revealed additional evidence of impairment.

The officer then administered a preliminary breath test, resulting in a .119 BAC. Edelman was arrested for DUI and transported to the police station.

The officer read Edelman Vermont’s implied consent law and requested that he submit to an evidentiary breath test. Edelman said he understood his rights and agreed to the test.

That test revealed a .127 BAC, and Edelman was charged with DUI. He then moved to suppress the evidentiary breath test result, arguing that the sample was obtained without a warrant or valid consent, in violation of both the Vermont and U.S. constitutions. Edelman also moved to dismiss the charges.

The trial court denied both motions, concluding, as a matter of law, that Edelman could not argue that the sample was taken without voluntary consent. Rather, Vermont’s implied consent law provided consent to an evidentiary breath sample, the court concluded.

Edelman entered a conditional guilty plea, reserving the right to appeal the trial court’s evidentiary ruling.

The Vermont Supreme Court reversed, concluding, “that the implied consent law does not bar a voluntariness challenge.” As such, “the trial court’s decision that defendant could not bring a voluntariness challenge to admission of the results of his evidentiary breath test because of the implied consent statute is unsupported.”

The Court ruled that “as in other contexts, a defendant may argue that based upon particular circumstances, consent was not given voluntarily.”

Noting that this question “depends heavily on the facts of each individual case,” the Court found that the determination depends on adequate fact finding.

Given that the trial court did not conduct an evidentiary hearing, the Court remanded for such a hearing because it could not determine on the trial court record whether Edelman “voluntarily consented to law enforcement’s request for an evidentiary breath sample.” See: State v. Edelman, 198 A.3d 556 (Vt. 2018). 

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