State v. Bonvie

State v. Bonvie (2005-560 & 2006-096)

2007 VT 82

[Filed 24-Aug-2007]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2007 VT 82

Nos. 2005-560 & 2006-096

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 3, Caledonia Circuit

Christopher Bonvie February Term, 2007

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit

Adam Gilbeau December Term, 2006

Amy M. Davenport, J. (05-560)
Katherine A. Hayes, J. (06-096)

Robert Butterfield, Caledonia County State's Attorney, St. Johnsbury, for
Plaintiff-Appellant (05-560).

Stuart G. Schurr, Department of State's Attorney, Montpelier, for
Plaintiff-Appellant (06-096).

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for Defendant-Appellee
(05-560).

William E. Kraham of Weber, Perra & Munzing, P.C., Brattleboro, for
Defendant-Appellee (06-096.)

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. DOOLEY, J. Defendants, Christopher Bonvie and Adam Gilbeau,
were separately arrested for driving under the influence (DUI). Each man
received a citation for "DUI/Refusal" based on the arresting officer's
determination that he had refused the test. In each defendant's
license-suspension hearing, the district court disagreed, concluding that
defendant had not refused, or even if he had, his subsequent request to
take the test cured his initial refusal. We consolidate these
substantially identical appeals by the State and affirm. We hold that
subsequent, good-faith consent to take a breathalyzer test negates an
earlier refusal if the consent is given within the statutory thirty-minute
window to contact an attorney that 23 V.S.A. § 1202(c) provides, subject to
the factors outlined in Standish v. Department of Revenue, 683 P.2d 1276,
1280 (Kan. 1984), discussed herein.

¶ 2. The stories of the two arrests are largely the same. Defendant
Bonvie, age nineteen at the time, was stopped for failing to obey a stop
sign. Based on roadside observations, the arresting officer concluded that
he had probable cause to believe defendant was driving under the influence
of alcohol and transported him to the police station for processing. The
officer read him his rights regarding the breathalyzer test, including the
provision that his privilege to drive could be suspended for at least six
months if he refused to take the test. At defendant's request, the officer
contacted a lawyer, and when defendant's conversation with the lawyer
concluded, the officer returned to the room and asked if defendant would
submit to the test. Defendant responded that his lawyer told him not to
answer any questions.

¶ 3. The following exchange ensued - The officer: "Well, are you
going to provide a sample of your breath?" Defendant Bonvie: "I guess no."
The officer: "Is that a no?" Defendant: "No." The officer concluded that
defendant had declined to take the test and handed him his civil-
suspension paperwork. Upon looking at it, defendant asked why his license
would be suspended for six months, and the officer explained it was because
he had declined to take the test. At that point defendant asked if he
could take the test, and the officer refused. The trial court found, and
the State does not contest, that just under thirty minutes elapsed between
the initial attempt to contact an attorney and defendant's request to take
the test.

¶ 4. Defendant Gilbeau was approached by an officer who saw smoke
and tire-marks coming from his parked vehicle. The vehicle was still
running, and its two right tires were lodged on the curb in front of a pub.
The officer informed defendant of his rights regarding the breath test;
defendant chose not to speak with an attorney. When asked if he would
submit to a test, defendant said "no." When defendant saw the paperwork
citing him for "DUI/Refusal," however, he told the officer that he
misunderstood and explained that he thought he was being asked to agree
that the breath test could be used as evidence against him in court.
Although he would not agree to that, he stated that he would submit a
sample of his breath for an evidentiary test. The officer refused to give
him the test. Defendant testified at his civil suspension hearing that
"immediately" after realizing the officer believed he had declined the
test, he asked to take it, but the officer refused. (FN1)

¶ 5. In each case, the district court noted that defendant had
been "cooperative and polite throughout the processing." Each court
concluded that a defendant's subsequent request to take a breathalyzer test
may cure his initial refusal if he changes his mind within a reasonable
time and if the State is not unreasonably burdened by the request.
Specifically, the Caledonia District Court, Judge Davenport presiding, held
that defendant Bonvie had not "refused" because he subsequently requested
to take the test within the thirty minutes provided by statute. See 23
V.S.A. § 1202(c) ("The person must decide whether or not to submit to the
evidentiary test or tests within a reasonable time and no later than 30
minutes from the time of the initial attempt to contact the attorney.").
The Windham District Court, Judge Hayes presiding, did not expressly
address whether defendant Gilbeau had "refused" to take the test, but
instead adopted the five-part test of the Kansas Supreme Court that later
consent to evidentiary testing cures an initial refusal if made:

(1) within a very short and reasonable time after the prior first
refusal;
(2) when a test administered upon the subsequent consent would
still be accurate;
(3) when testing equipment is still readily available;
(4) when honoring the request will result in no substantial
inconvenience or expense to the police; and
(5) when the individual requesting the test has been in the
custody of the arresting officer and under observation for the
whole time since arrest.

Standish, 683 P.2d at 1280. The court found that all five factors were
met in Gilbeau's case, and there was no allegation that defendant Gilbeau's
request to take the test was made more than thirty minutes after he was
informed of his right to consult with counsel. Both judges concluded that
the State had not met its burden of showing a refusal, and thus entered
judgment for defendant at the civil suspension hearing. Judge Hayes held
that all evidence of defendant Gilbeau's "refusal" would be suppressed at
trial. The State appealed.

¶ 6. Whether, and in what circumstances, a defendant may cure an
initial refusal to take a chemical test is a question of law that we review
de novo under our implied-consent statute. See Wright v. Bradley, 2006 VT
100, ¶ 6, ___ Vt. ___, 910 A.2d 893 ("Issues of statutory interpretation
are subject to de novo review."). We begin with the relevant Vermont
authority, but because our prior decisions do not resolve the matter
conclusively, we proceed to examine the holdings of courts in other
jurisdictions that have addressed the issue.

¶ 7. We look first to the statute. Section 1202 of Title 23
concerns "consent to taking of tests to determine blood alcohol content"
generally. Subsection (a)(1), Vermont's "implied consent" law, states
that the driver or person "in actual physical control of any vehicle on a
highway in this state is deemed to have given consent to an evidentiary
test of [their] breath for the purpose of determining the person's alcohol
concentration or the presence of other drug in the blood." Refusal to
take the test when an officer has "reasonable grounds to believe" the
operator is in violation of § 1201 is sanctioned by an automatic six-month
suspension of the operator's license, 23 V.S.A. § 1205(a), and by making
the refusal admissible as evidence of guilt in a criminal proceeding, §
1202(b). Accordingly, the statute further requires that operators receive
a series of warnings upon being asked to take the test, including a warning
that refusal will result in a six-month license suspension, id. §
1202(d)(2), that evidence of the refusal is admissible in a criminal
proceeding, id. § 1202(d)(6), and that the individual has the right to
consult with an attorney before deciding whether to take the test. id. §
1202(d)(4). The operator must decide whether to take the test "within a
reasonable time and no later than 30 minutes from the time of the initial
attempt to contact the attorney . . . regardless of whether a consultation
took place." Id. § 1202(c). (FN2)

¶ 8. We agree with the State that the plain language of the above
provisions does not necessarily afford an individual the right to "change
his mind" about taking a breath test within the thirty-minute window. On
the other hand, nothing in the statute expressly precludes later consent
after an initial refusal. Here, we are mindful of our repeated conclusion
that § 1202(c) "evidences the [L]egislature's 'concern that any refusal to
be tested [shall] not be lightly decided, by providing for counsel and for
time for reflection.' " State v. Kozel, 146 Vt. 534, 538, 505 A.2d 1221,
1223 (1986) (quoting State v. Carmody, 140 Vt. 631, 636, 442 A.2d 1292,
1295 (1982)). We have also recognized the Legislature's general
encouragement of breath tests through its conditioning of motor-vehicle
licenses on an operator's implied consent to take such tests. Veilleux v.
Springer, 131 Vt. 33, 39, 300 A.2d 620, 624 (1973) (explaining legislative
encouragement of "the availability of scientific evidence" through implied
consent law). More broadly, in concluding under a previous version of the
implied-consent law that individuals must be informed of their right to
consult with an attorney before deciding whether to take the test, we
recognized the many criminal and civil ramifications of this decision, and
held that such a "complicated decision" should be made with the option of
receiving the advice of counsel, or else not be binding. See Duff, 136 Vt.
at 539-40, 394 A.2d at 1146. In doing so, we construed the statute
liberally "in accordance with the nature of the right it affords." Id. at
540, 394 A.2d at 1146.

¶ 9. We have dealt at least three times before with DUI defendants
who responded ambiguously to requests to take a breath test. In State v.
Benware, the question was whether the defendant had refused the test when
he offered to take it after the officer made "five attempts to administer
the test over a period of forty-one minutes." 165 Vt. 631, 632, 686 A.2d
478, 479 (1996) (mem.). During that time, the defendant "forced numerous
burps while repeatedly making obnoxious comments and gestures" to the
officer. Id. We noted that the defendant had "deliberated beyond the
thirty-minute statutory time limit imposed by 23 V.S.A. § 1202(c)," but we
declined to resolve the matter on that ground, instead affirming on the
basis that his "stated change of mind was not genuine." Id. at 632, 686
A.2d at 480. We stated that 23 V.S.A. § 1202(c) "provides a defendant with
a reasonable amount of time to decide whether to submit to the breath test,
but no longer than thirty minutes after the first attempt to contact an
attorney." Id. at 632, 686 A.2d at 479.

¶ 10. We similarly left open the question of "how processing
officers ought to respond to good faith and timely changes of mind" with
respect to a request to take a breathalyzer test in State v. Lynaugh, 148
Vt. 124, 127, 530 A.2d 555, 558 (1987). There, the defendant expressly
refused to take the test twice, was described as "difficult and arrogant"
during his processing, and ultimately asked a second officer to administer
the test more than thirty minutes after the first officer had arranged
contact with an attorney. See id. at 126, 530 A.2d at 557. In these
circumstances, we affirmed the trial court's finding that the defendant had
refused to take the test. Id. at 127, 530 A.2d at 558.

¶ 11. Finally, Stockwell v. District Court of Vermont, involved an
"offensive, insulting, . . . abusive . . . and at times," and "physically
combative" DUI arrestee, therein the plaintiff, 143 Vt. 45, 47, 460 A.2d
466, 467 (1983), who "would not give any clear verbal expression of either
consent or refusal" to the breath test. Id. at 48, 460 A.2d at 467. The
attorney contacted for the plaintiff by the officer indicated to the police
that he did not recommend that plaintiff take the test. Id. The officers
concluded nineteen minutes after the lawyer had been contacted that the
plaintiff's actions indicated a refusal. Id. In response to his argument
that he was wrongly deprived of his thirty minutes to decide, we stated the
following:

Plaintiff had a reasonable time to decide whether to submit to
testing. It is true that the time does not terminate conclusively
against a suspect's interests as a matter of law until the thirty
minutes have elapsed following the initial attempt to contact the
attorney unless he refuses before the period has run. However,
this is a remote cousin indeed from the proposition urged by
plaintiff that a reasonable time can never terminate prior to the
running of the period. . . . The statutory reasonable time is
tolled either by the expiration of the thirty minutes or by a
reasonably clear refusal to submit to the test, whichever occurs
first in time. Accordingly, we hold that the statutory thirty
minutes is the maximum reasonable time, not the minimum.

Id. at 49-50, 460 A.2d at 468.

¶ 12. While informative, the above case law does not dispose of the
issue before us. Benware and Lynaugh, cases in which the defendants'
changes of mind were not in good faith and were outside of the
thirty-minute period, are consistent with a rule that good-faith changes of
mind to consent to the test, if made within the thirty minutes afforded by
23 V.S.A. § 1202(c), are permissible. As for Stockwell, although
particular language in the decision could suggest otherwise, we do not
conclude that the decision as a whole points in the opposite direction.

¶ 13. Stockwell was an interpretation of what is "reasonable" as
that term is used in the timing provision of the implied-consent statute,
23 V.S.A. § 1202(c). 143 Vt. at 49, 460 A.2d at 468. It was not a case
involving a good-faith change of heart; indeed, Mr. Stockwell "showed not
the slightest indication that he was giving any serious consideration to
the request made of him several times." Id. at 51, 460 A.2d at 469. He
was abusive to the point of being "physically combative" and was
"uncooperative from the outset and never changed." Id. at 47, 51, 460 A.2d
at 467, 469. Moreover, he argued that he was entitled to at least thirty
minutes to make a decision on whether to take the test; defendants make a
very different argument here. We need not disturb our conclusion in
Stockwell that it was reasonable in those circumstances for the officers to
conclude that Mr. Stockwell had impliedly but unequivocally refused the
test before the statutory period had run. Id. at 51, 460 A.2d at 469. In
contrast, defendants in the cases at bar exhibited precisely the sort of
cooperation and good faith consideration of the breath test we seek to
encourage. See Kozel, 146 Vt. at 538, 505 A.2d at 1223 (describing "time
for reflection" in implied-consent law as indicative of legislative concern
that refusal not be decided "lightly"). Cf. Schroeder v. Dep't of Motor
Vehicles & Pub. Safety, 772 P.2d 1278, 1280 (Nev. 1989) (per curiam) ("One
who is lawfully under arrest for drunk driving should not be able to defeat
the purpose of the implied consent statutes by being uncooperative with the
arresting officers.").

¶ 14. We conclude that the issue before us is determined neither by
the specific wording of the refusal statute nor by our precedents.
Therefore, we are again in the situation we found ourselves in Duff and
must construe the statute in light of the right it affords, as we did in
Duff. See Duff, 136 Vt. at 540, 394 A.2d at 1146. In doing so, we turn to
the approaches taken in other jurisdictions for guidance.

¶ 15. A cross-country review reveals a surprising volume of
litigation on the topic, with two primary lines of cases. One provides
that an operator may effectively agree to take the test after an initial
refusal - the so-called "flexible" approach. See Lund v. Hjelle, 224
N.W.2d 552, 557 (N.D. 1974) (subsequent consent valid if made within
reasonable time, test would still be accurate, equipment still readily
available, no substantial inconvenience or expense to police, and
individual in police custody continuously since arrest); Pruitt v. Dep't of
Pub. Safety, 825 P.2d 887, 894 (Alaska 1992) (adopts Lund factors); Gaunt
v. Motor Vehicle Div, 666 P.2d 524, 528 (Ariz. Ct. App. 1983) (subsequent
consent honored if defendant still in custody, no substantial inconvenience
for police, testing equipment still available, and test results still
accurate); Zahtila v. Motor Vehicle Div., 560 P.2d 847, 849 (Colo. Ct. App.
1977) (subsequent consent valid if officer still available and delay does
not materially affect test results); Larmer v. Dep't of Highway Safety &
Motor Vehicles, 522 So. 2d 941, 944 (Fla. Dist. Ct. App. 1988) (retraction
of initial refusal valid if given moments later, while still in continuous
presence of officer, and if no inconvenience would result); Dep't of Pub.
Safety v. Seay, 424 S.E.2d 301, 302 (Ga. Ct. App. 1992) (adopts Standish
factors, supra); State v. Moore, 614 P.2d 931, 935 (Haw. 1980) (adopts Lund
factors); Pangburn v. State, 857 P.2d 618, 620 (Idaho 1993) (subsequent
consent valid if individual still in police custody, testing equipment and
personnel "reasonably" available, and delay will not materially affect test
result); Standish, 683 P.2d at 1280 (factors supra); Pickard v. Dep't of
Pub. Safety, 572 So. 2d 1098, 1101 (La. Ct. App. 1990), (adopts Moore,
supra); In re Suazo, 877 P.2d 1088, 1096 (N.M. 1994) (adopts Lund factors,
supra, with stricter temporal standard); Baldwin v. State ex rel. Dep't of
Pub. Safety, 849 P.2d 400, 406 (Okla. 1993) (adopts Standish factors).

¶ 16. The other concludes that an operator may not subsequently
consent after a previous refusal - the so-called "absolute" approach. See,
e.g., Zidell v. Bright, 71 Cal. Rptr. 111, 113 (Ct. App. 1968) (police
need not arrange for belated test once defendant had "refused to submit
after fair warning of the consequences"); People v. Shorkey, 321 N.E.2d 46,
48 (Ill. Ct. App. 1974) (adopts bright-line rule that, where all statutory
requirements met, refusal to take breath test is binding and cannot be
nullified by subsequent consent); Hoffman v. Dep't of Transp., 257 N.W.2d
22, 26 (Iowa 1977) ("One refusal is determinative."); Humphries v.
Commonwealth, 807 S.W.2d 669, 670 (Ky. Ct. App. 1991) (subsequent testing
cannot cure initial refusal, which is a violation of statute); State v.
Landry, 428 A.2d 1204, 1206 (Me. 1981) ("Once an arrestee voluntarily
refuses a reasonable opportunity to elect a chemical test, the police need
not go out of their way to coddle a later change of mind."); Blanchard v.
Dep't of Revenue, 844 S.W.2d 589, 590-91 (Mo. Ct. App. 1993) ("Subsequent
conduct indicating an agreement to submit is irrelevant even in a case such
as this, where petitioner asserts he had an 'immediate change of heart.'
"); Hunter v. State, 869 P.2d 787, 790 (Mont. 1994) ("We restate the rule
that, in Montana, subsequent consent does not cure a prior refusal to
submit to a blood alcohol test."); Wisch v. Jensen, 379 N.W.2d 755, 758
(Neb. 1986) (summarizing previous holding that subsequent offer to take
test does not cure initial refusal and noting that in instant case,
technician was already leaving when defendant changed his mind); Schroeder,
772 P.2d at 1280 ("[W]e reject [defendant's] contention that his eventual
request to take a chemical sobriety test vitiated his prior refusals.");
Harlan v. State, 308 A.2d 856, 859 (N.H. 1973) (rejecting subsequent
consent one hour after initial refusal, but leaving open question when
defendant "almost immediately" retracts refusal); State v. Bernhardt, 584
A.2d 854, 858 (N.J. Super. Ct. App. Div.) (adopting "bright line rule . . .
which precludes a defendant from curing a refusal"); Leviner v. Dep't of
Hwys. & Pub. Transp., 438 S.E.2d 246, 248 (S.C. 1993) (adopts bright line
rule); Baker v. Schwendiman, 714 P.2d 675, 677 (Utah 1986) (per curium)
(where officer "spent approximately thirty minutes attempting to persuade
plaintiff to submit to a test," and where consent came fifteen to twenty
minutes later "after the intoxilyzer machine had been shut down," consent
did not cure refusals); Dep't of Licensing v. Lax, 888 P.2d 1190, 1193
(Wash. 1995) (adopts bright-line rule).

¶ 17. As the above summary demonstrates, the two lines of cases are
not nearly straight; some in the "absolute" jurisdictions are consistent
with those in the "flexible" camp, and vice versa. Compare, e.g.,
Standish, 683 P.2d at 1280 ("flexible" case requiring continuous custody by
"arresting officer" and ready availability of testing equipment for later
consent to be valid), with Schroeder, 772 P.2d at 1280 ("absolute" case
prohibiting later consent after arresting officer had left), and Baker, 714
P.2d at 677 ("absolute" case prohibiting later consent after testing
equipment was shut down); see also Baldwin, 849 P.2d at 405 (recognizing
difficulty in "artificially categorizing jurisdictions as two separate
camps"). The statute in place in North Carolina most resembles our own in
that it provides operators a thirty-minute period to contact an attorney to
decide whether to take the test. North Carolina is commonly called an
"absolute" jurisdiction, but its holdings that refusal cannot be
reconsidered involve consent given outside the thirty-minute period. See
Etheridge v. Peters, 269 S.E.2d 133, 136 (N.C. 1980) (finding willful
refusal to submit to test after statutory thirty-minute period had
expired); Seders v. Powell, 259 S.E.2d 544, 548-50 (N.C. 1979) (same).
These cases do not make clear whether an operator may reconsider a refusal
within the thirty-minute period.

¶ 18. The many courts that allow operators to reconsider a refusal
coalesce around two rationales: (1) fairness to the operator, and (2)
furthering the purpose of implied-consent statutes by encouraging the
administration of chemical tests in as many cases as possible. See, e.g.,
Gaunt, 666 P.2d at 527 (recognizing clarity afforded by absolute rule, but
concluding that "it could lead to unnecessarily harsh and self-defeating
results"); Moore, 614 P.2d at 935 ("We . . . decline to hold with a rule of
law which would rigidly and unreasonably bind an arrested person to his
first words spoken, no matter how quickly and under what circumstances
those words are withdrawn."); In re Smith, 770 P.2d 817, 821 (Idaho Ct.
App. 1989) (concluding that flexible rule "better serves the public
interest in obtaining scientific information about the blood-alcohol levels
of motorists accused of driving under the influence"); Standish, 683 P.2d
at 1280 ("We believe that the administration of the test should be
encouraged and the person arrested should be given every reasonable
opportunity to submit to it."); Lund, 224 N.W.2d at 557 (recognizing that
because "accuracy of a chemical test under [the implied consent law] does
not depend upon its being administered immediately after an arrest . . . a
delay for a reasonable period of time while an arrested person considers or
reconsiders a decision" to take a test "will not frustrate" objective of
law); Baldwin, 849 P.2d at 405-06 ("Arresting officers apparently recognize
that the circumstances of the arrest along with the altered mental state of
a drunk driver could result in an initially rash decision, which a few
minutes of reflection by a ride to a jail in a patrol car could correct.").
As the U.S. Supreme Court has acknowledged, evidence from a chemical test
is preferable because "the inference of intoxication arising from a
positive blood-alcohol test is far stronger than that arising from a
refusal to take the test." South Dakota v. Neville, 459 U.S. 553, 564
(1983).

¶ 19. Two different rationales also emerge from the "absolute"
jurisdictions: a desire to obtain the best possible evidence, and a concern
that allowing conditional refusals would require officers to remain
available for unreasonable periods to accommodate a change of heart. See,
e.g., Zidell, 264 Cal. App. 2d at 870 ("It would be inconsistent with the
purpose of the statute to hold that [the officers] were required to turn
aside from their other responsibilities and arrange for administration of a
belated test . . . once appellant had refused to submit after fair warning
of the consequences."); Humphries, 807 S.W.2d at 670 ("Subsequent testing
[cannot] cure a violation of the statute, if it could, then delays in
testing would increase so bloodstream alcohol levels could deteriorate, and
accurate evidence samples could no longer be obtained."); Bernhardt, 584
A.2d at 858 (adopting bright-line rule, stating that otherwise police would
have to "wait for an indefinite period in an attempt to be able to refute a
defendant's assertion that although he or she changed his or her mind and
consented within a reasonable time, the police improperly disallowed a
cure"); Lax, 888 P.2d at 1193 ("If a refusal can be withdrawn or negated,
the drunk driver has a tool which could be used to manipulate the officer
and gain extra time. . . . This individualized consideration may take time
more profitably spent dealing with other, perhaps more urgent tasks.").

¶ 20. We generally find the rationale for the flexible rule more
compelling, in part because we can apply standards that respond to the
objections stated in the "absolute" cases. Thus, we adopt the flexible
rule subject to the Standish standards as discussed and modified below.

¶ 21. We are particularly persuaded by the desire to obtain the
best evidence, which all would agree is the test result. The Vermont
implied consent-law "encourages the availability of scientific evidence to
make . . . a determination [of impairment]." Veilleux, 131 Vt. at 39, 300
A.2d at 624. As already noted, a test result over the statutory limit is
much stronger evidence of impaired operation than is the refusal to take
the test. Neville, 459 U.S. at 564. In general, it is also more
definitive evidence than the signs of intoxication and impaired operation
that an officer might observe. For this reason, the Legislature has
adopted alternative definitions of the crime, one with the main element of
the crime measured solely by the test result. 23 V.S.A. § 1201(a)(1).
¶ 22. We recognize that obtaining the best evidence is also a goal
of the "absolute" rule because the accuracy of the test in measuring
alcohol concentration at the time of operation declines over time, such
that administration of a test as soon as possible after operation is
desirable. By definition, a test administered after an initial refusal
will occur later than if the operator had consented in the first instance.
But the issue should not turn solely on the timing of consent. Instead the
choice we face is between imposing an arbitrary sanction for refusal and
obtaining a test result that shows the extent of the operator's impairment
at the time the test is administered. Faced with this choice, we favor
obtaining the test result if it remains sufficiently accurate to show
impairment at the time of operation.

¶ 23. Consistent with this choice, we have held that breathalyzer
evidence taken "nearly two hours after the operation of the vehicle" may be
admissible when the results are appropriately related back by an expert
witness. State v. Gray, 150 Vt. 184, 187, 552 A.2d 1190, 1192 (1988). In
most instances, testing is proper only if completed within the period
clearly defined by 23 V.S.A. § 1202(c). Our decision in this case in no
way erodes the clear standard set forth by § 1202(c). Instead, in adopting
a flexible rule, we are guided by flexible language that is present both in
Gray and 23 V.S.A. § 1204(a)(3), which allows a permissive inference that a
test result of .10 or greater within two hours of operation shows operation
under the influence of alcohol.

¶ 24. We are aided in ensuring the accuracy of the test result by
the thirty-minute statutory time limit from the time the first attempt to
contact a lawyer is made. The Legislature has decided that a test within
the statutory time limit provides a sufficiently accurate indication of
impairment at the time of operation. This judgment is consistent with
experience from around the country. See Pickard, 572 So. 2d at 1100
(flexible rule recognizes "although blood-alcohol levels vary over time,
they do not change so rapidly that a short delay necessarily would
invalidate a test result").

¶ 25. Further, a flexible rule is consistent with the protections we
have previously afforded defendants in this context. In Welch, we imposed
a limited right to counsel to aid the operator in making the decision
whether to take the test because of the serious consequences of the
decision. 135 Vt. at 321-22, 376 A.2d at 355. We were aware that
consultation with counsel would delay the decision whether to take the test
and required access to counsel only when "such access is requested and is
readily available and will not interfere with investigation of the matter
at hand." Id. at 322, 376 A.2d at 355. As discussed above, we amplified
the right created in Welch in Duff, 136 Vt. at 540, 394 A.2d at 1147,
calling the evidentiary-test decision faced by the operator "complicated."

¶ 26. Additionally, we are not persuaded by the second rationale of
the "absolute" jurisdictions - that allowing a defendant's subsequent
consent to cure his initial refusal will require officers to "turn aside
from their other responsibilities and arrange for the administration of a
belated test." Zidell, 264 Cal. App. 2d at 870. Again, the statutory time
limit answers much of the concern. The statute expressly affords
defendants "a reasonable amount of time to decide whether to submit to the
breath test, but no longer than thirty minutes after the first attempt to
contact an attorney," Benware, 165 Vt. at 632, 686 A.2d at 479 (citing 23
V.S.A. § 1202(c)), so officers are already required to wait up to thirty
minutes. We can require that any reconsideration occur within a reasonable
time and within the statutory time limit of thirty minutes. As the cases
before us show, it is unlikely that allowing reconsideration of a refusal
will divert officers from other activities for any significant amount of
time.

¶ 27. The cases before us demonstrate another reason to adopt the
flexible rule. Not surprisingly, the quality of the communication between
the officer and the probably-intoxicated operator was not optimum in either
case, and in both cases the operator claimed that he did not refuse to take
the test. Thus, were we to adopt the absolute rule, trial courts like the
one in Bonvie would be left with the mind-reading exercise of determining
if a defendant refused based on communications like the following:

Officer: "Will you give me a sample of your breath as evidence?"
Defendant Bonvie: "My lawyer told me not to answer any questions."
Officer: "Well, are you going to provide a sample of your breath?"
Defendant Bonvie: "I guess no."
The officer: "Is that a no?"
Defendant: "No."

In some cases, that exercise is unavoidable. But in many, including those
before us, the opportunity for the operator to reconsider his answer when
the officer's interpretation of his words becomes apparent to him obviates
the need for difficult, case-by-case interpretations of vague, inconclusive
verbal exchanges.

¶ 28. We emphasize that we are not holding that the police must wait
thirty minutes after counsel is contacted in the event that the operator
decides to reconsider his refusal. See Standish, 683 P.2d at 1280 ("The
arresting officer need not sit and wait for the person to change his or her
mind, and thus neglect other duties"). That position was necessarily
rejected in Stockwell, and, again, we see no reason to reconsider that
decision here. We also reaffirm our conclusion in Stockwell that officers
may find refusal to the test based on an abusive and assaultive response to
a request to take it, and they need not indulge the operator for thirty
minutes in the absence of any indication he intends to be cooperative.
Stockwell, 143 Vt. at 51, 460 A.2d at 469.

¶ 29. The Windham District Court in Gilbeau adopted the standards
for determining the effectiveness of a reconsidered decision to take the
test as set out in Standish, 683 P.2d at 1280. On review, we agree with
that adoption subject to two modifications. The first is that the initial
factor - the timeliness of the defendant's subsequent consent - is
controlled by the reasonableness standard and thirty-minute window of 23
V.S.A. § 1202(c). We confirm what the language of § 1202(c) clearly
states: a test is timely if made "within a reasonable time" and no later
than thirty minutes. Id. We also modify the fifth factor regarding the
continuous custody and observation of the defendant by the officer as
discussed below. These standards reflect a fair balance of the
considerations applicable on the issue before us.

¶ 30. In general, we are dealing with cases in which the allowance
of reconsidered consent is reasonable because the reconsideration occurred
during the initial processing when the operator learned that his words were
interpreted as a refusal and understood the consequences of that refusal.
Thus, the Windham District Court found that defendant Gilbeau's
post-refusal consent was effective under the Standish factors, and the
State has not contested that analysis. We affirm in Gilbeau on that basis.

¶ 31. The Caledonia District Court did not apply the Standish
factors to defendant Bonvie, and ordinarily we would remand for that
analysis. The court did, however, make findings of fact outlined below,
and we conclude under those findings that the Standish standards were met
as a matter of law. Thus, we also affirm in Bonvie.

¶ 32. The findings in Bonvie were as follows:

The court finds based on the evidence that defendant changed his
mind in good faith and was not attempting to procrastinate in the
hopes of improving the test result. Defendant's response to the
officer's initial question about taking the test indicates that he
was confused by the advice he received from his attorney. He
appears to have equated his attorney's advice not to answer
questions with a decision to say "no" when the officer asked him
if he would provide a sample of his breath. Although the officer
had informed him that the suspension would be six months if he
refused the test, he appears not to have really absorbed this
information until the officer handed him paperwork that said his
license would be suspended for six months.

23 V.S.A. § 1202(c) provides that a person must decide whether or
not to submit to the evidentiary test "within a reasonable time
and no later than 30 minutes from the time of the initial attempt
to contact the attorney." 23 V.S.A. § 1202(c). The initial
attempt in this case to contact an attorney was made at 1:14 a.m.
by the officer's watch. The officer testified that he concluded
the processing at 1:53 a.m. He further testified that the
defendant changed his mind and asked to take the test about 10
minutes before that or at 1:43 a.m. Defendant's change of mind
was thus timely, made just barely within the 30 minute period
following the initial attempt to contact an attorney.

In its analysis, the court added that "defendant and the officer were both
still in the processing room" and that "[t]he Datamaster machine was in the
room ready to be used and it would have taken very little additional time
to allow defendant to take the test."

¶ 33. As we stated above, compliance with the first Standish factor
is measured by compliance with 23 V.S.A. § 1202(c). The court found such
compliance, and its conclusion is supported by the evidence.

¶ 34. As to the second factor, the court found that defendant
consented to take the test one hour and twenty minutes after he was stopped
by th police, and so "the test would have been within the two hour
presumptive framework." Although the court did not identify when the
initial refusal was made, the evidence indicates that it occurred around
1:30 a.m., so that approximately thirteen minutes elapsed between the
refusal and the consent at 1:43 a.m. The State has not contended that the
second factor - that a test administered upon the subsequent consent would
still be accurate - is not met. In the absence of any evidence to the
contrary, we assume, consistent with past relation-back cases, that it was.
See, e.g., Gray, 150 Vt. at 187, 552 A.2d at 1192 (finding test taken
"nearly two hours after the operation of the vehicle" admissible where
results appropriately related back by an expert). The additional thirteen
minutes would not turn a valid test result into an invalid one. We note
that the decisions in other flexible-rule jurisdictions overwhelmingly
allow reconsidered consent where the refusal was less than twenty minutes
before the consent. See J. Purver, Annotation, Driving While Intoxicated:
Subsequent Consent to Sobriety Test as Affecting Initial Refusal, 28
A.L.R.5th 459, § 8 (2007).

¶ 35. On the third factor, the court found that the testing
equipment was still readily available, and this finding is uncontested.
Similarly, the fourth factor is clearly met because the officer had not
completed the processing when defendant consented, and there is no evidence
of substantial inconvenience or added expense.

¶ 36. Finally, we believe the fifth factor - that the individual
requesting the test has been in the custody of the arresting officer and
under observation for the whole time since arrest - is met sufficiently in
this case. We note that in Standish, the Kansas Supreme Court required a
defendant to have been under the arresting officer's "observation for the
whole time since arrest." 683 A.2d at 1280. In defendant Bonvie's case,
the trial judge noted that defendant spoke to his attorney outside of the
presence of the arresting officer, and defendant was apparently left alone
in a police room to make this call. There is no allegation that he was
ever out of police custody or that he left the station prior to his request
to take the test. We find these facts sufficient to meet the fifth
Standish factor. We have held that a defendant's conversation with a
lawyer must be "reasonably private." State v. Sherwood, 174 Vt. 27, 31,
800 A.2d 463, 466 (2002). Our concern that defendant be continuously
observed relates particularly to the period between the refusal and the
consent. Such observation is sufficient to ensure that nothing occurs in
that period that would make the test result less accurate than it would
have been had defendant consented initially. Thus, we do not require that
the officer continuously observe the operator during the consultation with
the lawyer. Nor are we concerned about continuous observation before the
lawyer consultation unless there is some reason to believe that events
during that period made the delay in giving consent more significant. To
that extent, we modify the fifth Standish factor.

¶ 37. Ultimately, the defendant in each case exhibited a good-faith
change of mind to take the test before the thirty-minute period provided in
23 V.S.A. § 1202(c) had expired, and each of the factors outlined in
Standish, 683 P.2d at 1280, were met as discussed above. Defendants'
subsequent consent to take the test in each case was, therefore, valid
under our implied-consent statute.

The judgment in each case is affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. Although it is disputed whether defendant Gilbeau was merely confused
and did not in fact refuse in the first place, or whether he changed his
mind in later agreeing to take the test, this is a distinction without a
difference in light of our holding. Consent, if made within the
thirty-minute window, is effective consent whether it occurs after a change
of heart or not. We assume, arguendo, that both defendants "refused" to
take the test at first.

FN2. Section 1202(d)(4) requires that the operator be informed of the
provisions of § 1202(c). It codifies our holding in State v. Duff that a
previous version of Vermont's implied-consent law implicitly required
individuals stopped for DUI to be informed of their statutory right to
consult with an attorney before deciding whether to take the breath test.
136 Vt. 537, 539, 394 A.2d 1145, 1146 (1978). Similarly, the right to
consult with an attorney in this context was first provided by this Court
in State v. Welch, 135 Vt. 316, 318, 322, 376 A.2d 351, 352 (1977), before
it was codified in what is now § 1202(c).