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Vt. Supreme Court Reverses Windham DUI Rulings

BRATTLEBORO - The intent behind Vermont's drunkendriving law seems clear: Those who violate the statute multiple times face stiffer penalties for each successive offense.

But there is room for interpretation as illustrated by a recent Vermont Supreme Court decision that involves two Windham County DUI cases.

The defendants in both cases had prior DUI offenses and then refused to submit to an alcohol test when subsequently stopped by police.

In a reversal of a decision rendered by a local judge, a majority of appeals-court justices said both men could be charged for refusing those tests and also should be subject to enhanced penalties because of their prior offenses.

The decision has implications reaching far beyond the two cases at hand.

"For those of us who prosecute DUIs on a daily basis, it is important," said Steven Brown, Windham County deputy state's attorney.

Brown and fellow Windham County Deputy State's Attorney David Gartenstein had appealed decisions in Windham Superior Court Criminal Division regarding Bryan Wainwright and Matthew Wilder.

Wainwright, convicted of driving under the influence in July 2008, had been charged with a second DUI "for refusing to submit to an evidentiary blood test" on a subsequent traffic stop, court records say.

Prosecutors believed Wainwright should be subject to the second- offense penalty, which is a maximum of two years in prison and a fine up to $1,500. In May 2012, however, Judge David Suntag found no probable cause for the second-offense DUI charge.

Wilder had a longer record, with three prior DUI convictions in 1989, 1992 and 2011. So when he allegedly refused to submit to an evidentiary test requested by police during a traffic stop, prosecutors charged him with a fourth DUI.

In December 2012, though, Suntag found no probable cause for the fourth-offense charge.

A statutory fact applies in each case: In Vermont, those with no prior DUI convictions can refuse a police request to take an alcohol test. The fact that the test was refused is admissible as evidence in court, but it is not itself a crime.

It is a crime, however, for those with any prior DUI convictions to refuse such a test. In fact, the prior conviction is a legal element of the refusal charge.

Prior convictions also trigger stepped-up penalties under the state's drunken-driving law.

And that's where the confusion came in: The question was whether a prior DUI conviction could perform a sort of legal double- duty by serving both as the basis for a refusal charge and as a basis for an enhanced, repeatoffender penalty under the drunken- driving statute.

For both Wainwright and Wilder, the local court ruling said no.

That meant Wainwright, though he had a prior DUI, could not face second-offense penalties in connection with his alleged refusal of an alcohol test. And in Wilder's case, the ruling meant that the most he could be charged with was a third DUI- even though he already had three priors.

A state Supreme Court opinion now has reversed both rulings. A majority opinion authored by Justice John Dooley says the "plain language" of state law "allows the same prior DUI conviction to be used both as an element of criminal refusal and to enhance the penalty for the refusal."

Dooley's opinion says the issue "turns solely on the legislative intent" in Vermont's drunkendriving law.

There are multiple ways to violate that law. Examples include but are not limited to driving with a blood-alcohol level of at least 0.08 percent; driving a commercial vehicle with a BAC of 0.04 percent or more; and, for those with a prior conviction, refusing "a lawenforcement officer's reasonable r equest under the circumstances for an evidentiary test" of alcohol impairment.

The state Supreme Court decision says the law is clear in criminalizing test refusal under such circumstances. Additionally, Dooley wrote, "the statute's language plainly indicates an intent to apply the increased punishments to successive violations (of the drunkendriving law) regardless of how the section was violated - either through a blood-alcohol level above the legal limit, a criminal refusal or through some other manner."

The court also points out that the local judge's ruling could result in a "curious contradiction" in DUI cases.

A person with three priors - as Wilder had - could be charged both with test refusal and with DUI for the same traffic stop. But one charge would carry a thirdoffense penalty while the other would classified as a fourth offense.

That is not what state lawmakers intended, Dooley argues.

"The Legislature's direction was to allow the state to convict for both refusal and DUI and provided no instruction that the refusal penalty should be anything less than that applied to the DUI," the majority opinion says.

The court's decision was not unanimous. Justice Marilyn Skoglund authored a dissent in which she cited, among other arguments, the "rule of lenity." That means any lack of clarity in state law should be decided in favor of defendants, not the prosecution.

"If the Legislature's intent were to define a criminal refusal ... as a second (drunken-driving) offense it could have easily said so, and it retains the prerogative to do so in the future," Skoglund wrote.

But the majority decision was lauded by Gartenstein and Brown. It means Wainwright now can be charged with a second DUI, Brown said, and Wilder could face a maximum of 10 years in prison.

"Under the trial court's decision, he would have been facing a maximum of five years," Brown said.

"The cases have been on hold, awaiting the final outcome of the Supreme Court," he added. "Beyond these two, there are many other cases that were awaiting this decision."

In general, Gartenstein said, the Supreme Court ruling "provides greater certainty for sentencing purposes for recidivist DUI purposes."

The Vermont Defender General's office represented Wainwright and Wilder. Staff Attorney Dawn Matthews said that, in the lower court's decision, "Judge Suntag took the view that the Legislature intended to penalize the crime of DUI refusal - i.e. refusing to give a sample when asked by law enforcement - differently from the crime of DUI."

"On behalf of our clients, we argued to the Vermont Supreme Court that the judge's interpretation of the language was right, and one member of the court agreed," Matthews wrote in an e-mail to the Reformer. "When the Legislature comes back in January, we'll have to see if they're interested in clarifying the law or whether they agree with the court."

sourceMike Fahar - Brattleboro Reformer
sourceCompliments of: The Bennington Banner