State v. Kinney

Johnson, J.,

¶ 14. concurring. I agree that, given these circumstances, the admission of the officer’s testimony regarding defendant’s refusal to submit to the preliminary breath test (PBT) was harmless. I write separately to emphasize my belief, that the trial court committed error.1 I would hold that 23 V.S.A. § 1203(f), the statutory section governing preliminary breath alcohol screening tests, prohibits the introduction of PBT refusal evidence.

¶ 15. The trial court, however, relied on our decision in State v. Blouin to rule that defendant’s refusal was admissible. 168 Vt. 119, 716 A.2d 826 (1998). In Blouin, we held that evidence of a defendant’s refusal to take the horizontal gaze nystagmus (HGN) test, a physical field sobriety test in which a police officer moves an object across the subject’s field of vision to observe the manner in which the subject’s eyes follow the object, was admissible. Id. at 122-23, 716 A.2d at 828. We stated that, barring any statute or rule of law requiring exclusion, evidence of a driver’s refusal to perform a physical field sobriety test is probative of guilt, making it relevant and therefore admissible. Id. at 121-22, 716 A.2d at 828. Because there is statutory silence regarding physical sobriety tests like the HGN test and thus no statutory language prohibiting introduction of refusal evidence, we concluded that the defendant’s refusal to perform the HGN test was admissible to *201raise a consciousness-of-guilt inference. Id. at 122-23, 716 A.2d at 828. The trial court noted that Blouin “[s]eems quite parallel” to the instant case, particularly because “the issue is consciousness of guilt as opposed to, necessarily, the accuracy of the test.” The trial court saw no difference between a refusal to submit to a PBT and a refusal to perform an HGN test and ruled that evidence of defendant’s refusal to take the PBT was admissible.

¶ 16. In Blouin, our decision to admit the HGN test refusal evidence relied heavily on the complete statutory silence surrounding physical field sobriety tests such as the HGN. Id. at 122, 716 A.2d at 828 (“[T]he [implied consent] statute is silent with respect to physical sobriety tests such as the HGN.”). Thus, we broadly concluded that “[i]n the absence of statutory language prohibiting introduction of the [HGN test] refusal evidence, we will not invent it.” Id. at 122-23, 716 A.2d at 828. Because the HGN test results are admissible, refusal to take the HGN test prevents relevant evidence from being admitted. See V.R.E. 402. The implication is that a refusal in those circumstances raises an inference that the evidence gained from taking the test would be prejudicial. See State v. Curavoo, 156 Vt. 72, 74-75, 587 A.2d 963, 964-65 (1991) (concluding that because there is no statutory basis for defendant to refuse to submit to field dexterity test, refusal should be considered evidence of consciousness of guilt). Therefore, we held in Blouin that the refusal was probative of guilt and could be admitted to show defendant was guilty. 168 Vt. at 122-23, 716 A.2d at 828.

¶ 17. In contrast, a specific statutory provision governs the use of preliminary breath tests.2 Section 1203(f) of Title 23 sets forth the purpose and procedure for PBTs:

When a law enforcement officer has reason to believe that a person may be violating or has violated section 1201 of this title [by driving under the influence], the *202officer may request the person to provide a sample of breath for a preliminary screening test .... The person shall not have the right to consult an attorney prior to submitting to this preliminary breath alcohol screening test. The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made and whether to request an evidentiary test and shall not be used in any court proceeding except on those issues.

23 V.S.A. § 1203(f) (emphasis added). This language specifically prohibits the introduction of PBT results at trial for any purpose except on the issues of making an arrest and requesting an evidentiary test. While individuals may refuse to take a nonevidentiary preliminary breath test, see State v. McGuigan, 2008 VT 111, ¶ 17, 184 Vt. 441, 965 A.2d 511 (“Defendant is correct that he may refuse to submit to [the PBT]. The trooper may not physically force him ... to blow into the PBT device.”), the statute does not explicitly address the admissibility of such a refusal. See Curavoo, 156 Vt. at 75, 587 A.2d at 965 (declining to decide whether statute prohibits admission of preliminary breath test refusal evidence). I would conclude that the language and purpose of § 1203(f) prohibit the introduction of PBT refusal evidence.

¶ 18. As § 1203(f) demonstrates, the sole purpose of preliminary breath alcohol screening tests is to help police officers in the field develop evidence to support an arrest for driving while intoxicated. See In re Jones, 2009 VT 113, ¶ 7, 187 Vt. 1, 989 A.2d 482 (explaining that plain meaning of statute is most basic expression of Legislature’s reasonable intent); Delta Psi Fraternity v. City of Burlington, 2008 VT 129, ¶ 7, 185 Vt. 129, 969 A.2d 54 (recalling that Court’s goal when interpreting a statute is to give effect to intent of Legislature). Indeed, we have acknowledged the limited role and substantive inadmissibility of PBTs in our previous cases. McGuigan, 2008 VT 111, ¶ 14 (noting that PBTs are used only to determine whether probable cause exists to believe that an individual has been driving while intoxicated); State v. Orvis, 143 Vt. 388, 391, 465 A.2d 1361, 1362 (1983) (holding that results of PBT indicating impairment are inadmissible as evidence but may provide reasonable grounds to believe person is under influence of alcohol).

*203¶ 19. Like physical field sobriety tests, such as the HGN test or field dexterity tests, PBT results may be used as an investigative tool. Unlike physical field sobriety tests, for which a police officer observes a suspect’s behavior, a PBT scientifically measures a person’s body chemistry at the site of the traffic stop with a handheld instrument to determine its blood alcohol content. A preliminary breath test is not as accurate as an evidentiary breath test, which is taken with a more sophisticated instrument in a formal office setting. See Orvis, 143 Vt. at 391, 465 A.2d at 1362 (explaining that inadmissibility of PBT results at trial reflects determination that more sensitive measurements are easily available and should be used). Accordingly, the PBT statute limits the application of PBT results in court proceedings. See State v. Hull, 143 Vt. 353, 355, 465 A.2d 1371, 1372 (1983) (“[H]aving made a determination of the preliminary test’s reliability, the [Legislature chose to limit its use to that of a screening device only, and provided that its results are inadmissible as substantive evidence of intoxication.” (citation omitted)); see also State v. LeBeau, 144 Vt. 315, 319, 476 A.2d 128, 130 (1984) (noting that results of PBTs are inadmissible as evidence of impairment and may be used to determine whether more accurate testing is appropriate).

¶ 20. The key distinction — ignored by our colleagues — between a PBT refusal and the Blouin case is that an individual who refuses a PBT does not prevent relevant substantive evidence from being admitted at trial because the statute prohibits any results from being introduced as substantive evidence of intoxication.3 It thus undercuts the statutory purpose to admit the refusal to take the nonevidentiary test and would be contrary to the *204Legislature’s reasonable intent to prevent the inaccurate PBT from being used substantively. See Hull, 143 Vt. at 355, 465 A.2d at 1372 (explaining that Legislature chose to limit admissibility of PBT results). Moreover, admitting the refusal elevates it to a level of evidentiary significance that is unwarranted when the statute bans the results themselves for that purpose. Cf. Curavoo, 156 Vt. at 74-75, 587 A.2d at 964-65 (deciding that refusal to perform field dexterity tests is admissible because no statute or rule requires refusal to be excluded). Courts in other states that have considered this issue have barred the admission of PBT refusal evidence. See People v. Brooks, 778 N.E.2d 336, 341 (Ill. App. Ct. 2002) (holding PBT refusal evidence inadmissible where PBT results inadmissible); State v. Friedman, No. 2006AP2916-CR, 2007 WL 1486085, at *5 (Wis. Ct. App. May 23, 2007) (unpub.) (holding evidence of PBT refusal inadmissible on issue of guilt or innocence in prosecution’s case in chief).

¶ 21. PBT refusal evidence would have particularly limited probative value when introduced to demonstrate consciousness of guilt because of both the variety of possible motivations for such a refusal and the multiple inferential steps required.4 See *205Friedman, 2007 WL 1486085, at *5 (“[Rjefusal to take a PBT is improperly admitted when it is intended to weigh on the guilt or innocence of the [suspect].”). We have stated previously that consciousness of guilt evidence has weak probative value when a chain of inferences is required. See, e.g., State v. Onorato, 171 Vt. 577, 579, 762 A.2d 858, 859-60 (2000) (mem.) (noting that evidence of attempted suicide not necessarily “indicative of guilt” because “underlying reasons” can be “numerous and highly complex”); State v. Perrillo, 162 Vt. 566, 570, 649 A.2d 1031, 1034 (1994) (observing that evidence of flight weakly probative of consciousness of guilt because of multiple inferential steps required). Just as the Legislature determined that the results are insufficiently accurate for admission at trial on substantive issues, an individual with no consciousness of guilt whatsoever may refuse simply because of the test’s inaccuracy. See Brooks, 778 N.E.2d at 341 (“Evidence of a defendant’s refusal to take a test, the results of which are inadmissible, is not relevant evidence of a defendant’s innocence or guilt and could lead a jury to draw unwarranted inferences that the defendant declined the test because he or she was guilty.”). In the context of an unreliable test with results that the Legislature deemed inadequate for substantive admission, it is not always the case that “[e]vidence that a motorist refused to perform a sobriety test is probative of guilt, and therefore relevant.” Blouin, 168 Vt. at 121, 716 A.2d at 828. For example, an innocent person may choose not to take the test because an inaccurate result may falsely provide an officer with probable cause to arrest. See Onorato, 171 Vt. at 579, 762 A.2d at 859 (explaining that evidence of flight to avoid prosecution has limited value as conseiousness-of-guilt evidence because there are many reasons to explain flight of innocent person). Defendant’s refusal to submit to the preliminary breath test is far from the “confession” that the State claimed it to be before the trial court, and allowing a jury to hear evidence of a refusal to take a test whose *206results would be barred introduces confusion and potential prejudice. See Brooks, 778 N.E.2d at 342 (“The fear is that the jury could infer defendant’s guilt from his refusal to submit to a test, even though the results of the test are inadmissible to prove defendant’s guilt.”); see also Onorato, 171 Vt. at 579, 762 A.2d at 860 (“Because it is highly equivocal and circumstantial, the admissibility of attempted suicide evidence [to show consciousness of guilt] may introduce remote, secondary concerns that might confuse a jury.”). To hold otherwise would contravene the Legislature’s intent in crafting a specific statutory scheme for PBTs.

¶ 22. If we allow admission of PBT refusals to prove consciousness of guilt, we have eviscerated the statutory prohibition on the admission of PBT results found in § 1203(f). See Friedman, 2007 WL 1486085, at *4 (“[E]vidence of . . . refusal to take the PBT . . . , the results of which would have been inadmissible for the purpose offered, is equally inadmissible.”). To do so would give a refusal far more weight than the Legislature deemed appropriate for the results themselves. I therefore would hold that evidence of a defendant’s refusal to submit to the PBT is inadmissible under § 1203(f), and the trial court’s admission of testimony concerning defendant’s refusal to take the PBT was error, albeit harmless in this case.

¶ 23. I am authorized to state that Justice Skoglund joins this concurrence.

Although the State argues that defendant’s challenge of the PBT refusal admission was not preserved, I find the record here sufficiently supports preservation. See V.R.Cr.P. 51; Stale v. Brink, 2008 VT 33, ¶ 7, 183 Vt. 603, 949 A.2d 1069 (mem.) (explaining that trial court’s definitive ruling on admissibility eliminates need for a renewed objection).

Our colleagues’ concurrence glosses over the Legislature’s choice to create a specific and unique statutory mandate for the adminissibility of PBT results — unlike the statutory silence regarding physical field sobriety tests — in its eagerness to equate this situation with that of Blouin and to use the broad language of that decision to counsel on this issue. In Blouin, we were not faced with the particular statutory language before us now, and we do not “invent” language prohibiting the admission of a suspect’s refusal to submit to a PBT when we respect the Legislature’s choice to render PBT results substantively inadmissible. See post, ¶ 28.

Contrary to our colleagues’ assertion, a refusal to perform an HGN test and a refusal to perform a PBT are not “analogous,” post, ¶ 27, because no statute prevents admission of HGN test results. The physical HGN test, like other field sobriety tests, is based on the subjective observations of an officer who may be cross-examined and does not carry the aura of scientific certainty that surrounds the chemical PBT. The Legislature acknowledged this difference, electing to treat PBTs with specific statutory instructions. We emphasized in Blouin that there are no statutory directives regarding physical field sobriety tests such as the HGN. 168 Vt. at 122, 716 A.2d at 828. Our colleagues thus disregard the crucial difference between PBTs — results barred from admission by statute — and standard field sobriety tests — results are admissible as substantive evidence of intoxication. The majority of cases from other states cited to support the contention that a refusal to submit to a PBT is admissible because it goes to consciousness of guilt are, like our Blouin decision, situations in which a defendant refused to submit to standard field sobriety tests with admissible results — not preliminary breath tests with *204statutorily inadmissible results. See State v. Ferm, 7 P.3d 193, 196 (Haw. Ct. App. 2000); Thompson v. State, 65 P.3d 534, 536 (Idaho Ct. App. 2003); State v. Sanchez, 2001-NMCA-109, ¶ 2, 36 P.3d 446. The one ease cited allowing admission of a defendant’s refusal to submit to a preliminary aleo-sensor test involves a state statute that, in contrast to 23 V.S.A. § 1203(f), specifically allows admission of a defendant’s refusal to submit to state-administered chemical tests. See Crusselle v. State, 694 S.E.2d 707, 710 (Ga. Ct. App. 2010) (under statute in effect at that time). Although they purport to adhere to the statutory text, our concurring colleagues fail to reconcile allowing admission of the PBT refusal with the statutory prescription that the “results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made and whether to request an evidentiary test and shall not be used in any court proceeding except on those issues.” 23 V.S.A. § 1203(f).

The concurrence ignores our precedent regarding the weak probative value of consciousness of guilt evidence where, as in this instance, multiple inferential steps are required, stating instead that “a suspect’s refusal to submit to the test certainly implies some awareness that the test would reveal the suspect’s intoxication, or, in other words, some ‘consciousness of guilt’ of the offense relevant for admission at trial.” Post, ¶ 27 (second emphasis added). Unlike a refusal to submit to a test whose results are admissible, a refusal to submit to a test with inadmissible results may stem from a variety of eircumstantially-dependent motivations. The probative value of such a refusal to show consciousness of guilt evidence is weak. Our colleagues suggest that the defendant “remains free to argue that [refusal evidence] is worth little because the refusal was for reasons *205unrelated to guilt.” Post, ¶ 30. The issue before us is whether it is fair to present a refusal to submit to a PBT as evidence of consciousness of guilt in the State’s prima facie ease when there are multiple reasons for a defendant to refuse to submit to this invasive test. It is the State’s burden to prove that a defendant is guilty beyond a reasonable doubt — not the defendant’s burden to prove that he is not guilty. The concurrence’s solution improperly shifts that burden. Furthermore, it elevates the significance of the refusal over the significance of the test itself, which could lead the jury to elevate the refusal evidence beyond its probative value.