State v. Lussier

Skoglund, J.,

dissenting. My disagreement with the majority begins with its expansion of the civil suspension process based on an unsupported interpretation of legislative intent. Viewed dispassionately, 23 V.S.A. § 1205(h) sets forth a comparatively clear and concise set of issues to be considered in a civil suspension proceeding. None of them concerns the legality of the motor vehicle stop preceding the officer’s request that a driver submit to a blood alcohol test. Nor does the “reasonable grounds” language of § 1205(h)(1) support the majority’s conclusion that the Legislature must have “assumed” the legality of the stop. 171 Vt. at 23, 757 A.2d at 1020.1 must respectfully dissent.

Section 1205(h) provides that the issues to be considered in a summary suspension proceeding “shall be limited” to five. On this, there is no dispute. The majority begins its analysis, however, by observing that it finds “[njothing in the language of § 1205 or the purpose behind the statute” to suggest that the Legislature intended to preclude motorists from challenging license suspensions based on the constitutionality of the underlying stop. Id. With this summary dismissal of the restrictive language of § 1205(h) and a puzzling assumption of legislative purpose at the threshold, the majority takes its first misstep.

The principal objective of statutory interpretation is to discern and implement the Legislature’s intent, and the primary source of that intent is to be found in the plain and ordinary meaning of the words chosen. See In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102 (1997). As noted, the issues at a civil suspension hearing are limited to five: (1) whether the officer had reasonable grounds to believe the person was operat*45ing a vehicle in violation of § 1201 of this title,1 (2) whether at the time of the request for the evidentiary test the officer informed the person of the person’s rights and the consequences of taking and refusing the test, (3) whether the person refused to permit the test, (4) whether the test was taken and the results indicated that the person’s alcohol concentration was 0.08 or more at the time of operation and whether the testing methods were valid and reliable and whether the test results were accurate and accurately evaluated, and (5) whether the statutory requirements for consenting to an evidentiary test were met. 23 V.S.A. § 1205(h)(l)-(5).

The first issue to be determined in a civil suspension proceeding is whether the law enforcement officer “had reasonable grounds to believe the person was operating, attempting to operate or in actual physical control of a vehicle in violation of section 1201 of this title.” Id. § 1205(h)(1). The majority reads this section to require reasonable grounds to suspect a DWI violation before an officer can effect a motor vehicle stop. This is the second misstep, as I will explain below. And, in light of this interpretation of subsection (h)(1), the majority concludes that “the Legislature assumed that a constitutional stop would be a necessary predicate to finding ‘reasonable grounds’ for suspicion of DUI.” 171 Vt. at 23, 757 A.2d at 1020. Because I don’t believe the majority’s reading of subsection (h)(1) is correct, I also do not believe the assumptions attributed to the Legislature are valid.

Viewed on its own terms and in context, the only plausible meaning of the “reasonable grounds” requirement is that the officer must have formed.a reasonable basis to request a blood alcohol test from the person under investigation, that is, were there indicia of intoxication that would support a request that the person submit to an evidentiary test? Indeed, this has been the Court’s understanding since at least State v. District Court, 129 Vt. 212, 274 A.2d 685 (1971). There the Court construed an earlier version of § 1205 which provided, in terms nearly identical to the current statute, for a “summary hearing [to] take evidence relating to the reasonableness of the officer’s belief that the respondent was operating a vehicle under the influence of intoxicating liquor or drugs.” Id. at 214, 274 A.2d at 686. Justice Barney, writing for the Court, explained the purpose of this requirement as follows:

*46[T]he legislature has taken steps to protect operators from arbitrary, capricious or otherwise unreasonable demands that a test be taken. This is accomplished by its requirement that it be adjudicatively determined whether or not the belief of the officer, from which the request to test is generated, is a reasonable one .... The duty of the court is to evaluate the facts and circumstances presented as persuading the officer that he should request the respondent to take a test.

Id. at 214-15, 274 A.2d at 686-87 (emphasis added). Thus, the plain meaning of the “reasonableness” requirement is, and has been, clearly understood for nearly thirty years as referring to the request for an evidentiary test.

The current civil suspension statute retains the relatively simple and straightforward requirement that an officer form a reasonable basis to believe that the driver was under the influence of alcohol or drugs before requesting an evidentiary test. See 23 V.S.A. § 1205(h)(1). The majority’s construction replaces this limited prerequisite, substituting a more expansive inquiry into whether the officer had reasonable grounds to believe the person was committing a crime, a motor vehicle violation, or some other conduct that would justify the initial detention. This new test is created, despite the absence of any language in the statute referring to the validity of the initial stop or detention. Expanding the statute in this manner contravenes fundamental principles of statutory construction. See State v. O’Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996) (Court must not “read into a statute something which is not there unless it is necessary in order to make the statute effective”).

The statutory context of § 1205(h)(1) lends additional support to the conclusion that it serves merely as a predicate for requesting an evidentiary test. As noted, the question of whether the officer had reasonable grounds to believe the driver was DUI is the first of five issues to be determined in a civil suspension proceeding. The remaining issues to be determined are whether the officer informed the person of his or her rights and the consequences of taking and refusing the test, whether the person refused to permit the test, whether the test was taken and indicated a BAC of .08 or higher, whether the test results were accurate and accurately evaluated, and whether the requirements of our implied consent law, see 23 V.S.A. § 1202, were satisfied. In short, beginning with the officer’s basis (or “reasonable grounds”) for requesting blood alcohol testing, every *47subsequent issue set forth in § 1205(h) relates to the administration of the test.

The Legislature’s intent to limit the reasonableness inquiry *o the basis of the officer’s request for blood alcohol testing is evident, as well, from the summary and informal nature of the proceeding. The statute expressly provides that civil suspension hearings “shall be summary proceedings.” 23 V.S.A. § 1205(j); see also State v. Stearns, 159 Vt. 266, 271, 617 A.2d 140, 142 (1992) (“The Vermont civil suspension system is intended to work in a speedy and summary fashion.”). To this end, the rules for civil suspension proceedings provide for procedural informality, and the rules of evidence generally do not apply. See D.C.C.R. 80.5(f); Stearns, 159 Vt. at 271, 617 A.2d at 142-43. The Legislature has specifically provided that affidavits of law enforcement officers and chemists are admissible to prove the State’s case. See 23 V.S.A. § 1205(j). The statute further specifies that a law enforcement officer’s affidavit “shall be in a standardized form for use throughout the state and shall be sufficient if it contains the following statements.” Id. § 1205(b) (emphasis added). The section then sets forth seven separate criteria, including the certification of the officer, the results of the test and the time and date it was taken, and a statement indicating that the officer “had reasonable grounds to believe the person was operating, attempting to operate or in actual physical control of a vehicle in violation of section 1201.” Id. § 1205(b)(3). Again the statutory requirements focus primarily upon the qualifications to administer an appropriate evidentiary test.

As this Court explained in Stearns, “[t]he system is structured so that the State can prove its case without taking the arresting officer from law enforcement duties to testify.” 159 Vt. at 271, 617 A.2d at 143. This will no longer be the case. Opening the civil hearing to constitutional challenges to the underlying motor vehicle stop will effectively preclude the State from relying on an officer’s affidavit. What once was sufficient under § 1205(h) will no longer suffice. The State will be compelled to call the officer as a witness, and the “summary proceedings” contemplated by the statute will only exist in memory Indeed, absent any requirement that defendants disclose the issues or testimony they intend to present at the hearing, the State may be compelled to keep officers on stand-by status in case there is a challenge to the validity of the underlying stop. See D.C.C.R. 80.5(e); Stearns, 159 Vt. at 271 n.2, 617 A.2d at 143 n.2. It is difficult to imagine a result more at odds with the language and purpose of the civil suspension statute.

*48In all but one of the cases from other jurisdictions relied upon by the majority, the decisions were based upon operative language that does not appear in Vermont’s civil suspension statute. Pooler v. Motor Vehicles Din, 755 P.2d 701 (Or. 1988), is typical. The civil suspension hearing there was limited to several issues, including whether “[t]he person, at the time the person was requested to submit to a test. . . was under arrest for driving while under the influence of intoxicants.” Id. at 702. That requirement, not found in our statute, formed the basis of the Oregon court’s decision. As the court explained: “[T]he arrest which is a prerequisite to a lawful suspension . . . must be a valid arrest. ... If the arrest must be valid, it follows that the scope of the administrative hearing before the hearings officer included the question of the validity of the arrest.” Id. at 702-03. Similar statutory language formed the basis of the decisions in People v. Krueger, 567 N.E.2d 717, 722-23 (Ill. App. Ct. 1991) (holding that “under arrest” requirement of civil suspension statute required finding of valid arrest); Watford v. Bureau of Motor Vehicles, 674 N.E.2d 776, 778 (Ohio Ct. App. 1996) (construing “under arrest” provision of civil suspension statue to mean that “a lawful arrest, including a constitutional stop, must take place”); and Gikas v. Zolin, 863 P.2d 745, 749 (Cal. 1993) (noting that “under arrest” provision of civil suspension statutes means that “the underlying arrest must have been lawful”).2 The one exception cited by the majority is Brownsberger v. Department of Transportation, 460 N.W.2d 449 (Iowa 1990). There, however, the court’s decision was based upon a specific statute permitting a *49defendant to reopen a civil suspension when a court in a criminal action rules that the arresting officer lacked reasonable grounds. The court noted that the statute had effectively superseded an earlier decision holding that the exclusionary rule did not apply in civil suspension proceedings. See id. at 451. Thus, these cases are of little assistance in our quest to understand the legislative intent of our civil suspension statute.

With the majority’s ruling, the summary civil procedure envisioned by the Legislature will now be transformed into a full blown trial on issues not appearing in the civil suspension statute. It may be that there will cease to be value in pursuing a civil suspension. In Stearns this Court rejected the defendant’s claim that the State was collaterally estopped from relitigating in the criminal case the court’s earlier ruling in the civil suspension hearing on the issue of defendant’s alleged refusal to take the test. See 159 Vt. at 272, 617 A.2d at 143. We suggested that, in civil suspension hearings, it was the State’s decision whether to risk that a defendant’s license would not be suspended because an officer’s affidavit could not adequately convince the court in the face of defendant’s live testimony on an issue. Id. at 271-72, 617 A.2d at 143. To hold otherwise, the Court observed, would force the State “to try the criminal case, with live witnesses, in the civil suspension proceeding,” which would “nullify the summary suspension proceeding that the Legislature enacted.” Id. at 272, 617 A.2d at 143. How does that analysis of our civil suspension statute comport with today’s ruling?

For all of the foregoing reasons, therefore, I am unpersuaded that the civil suspension statute permitted defendants to challenge the validity of the underlying motor vehicle stops. I am equally unpersuaded, for the reasons discussed in the dissenting opinion of the Chief Justice, of any overriding constitutional imperative to read such a requirement into the statute. Accordingly, I join in his dissent. I would affirm the judgments. I am authorized to state that the Chief Justice joins in this dissent.

On Motion for Reargument

In a decision issued April 28, 2000, we reversed a district court decision and held that a defendant in a civil suspension proceeding may challenge the reasonableness of the underlying stop. Because the State had failed to show a reasonable and articulable basis for the stop, we also reversed the district court’s decision suspending defendant’s license. The State has filed a motion to reargue, arguing that the *50Court erred by failing to remand this case to provide the State with another opportunity to present evidence on the reasonableness of the stop.

At the civil suspension hearing, defendant challenged the reasonableness of the stop. He testified that only one of two lights that illuminates his rear license was not working at the time the police officer stopped him; thus, he argued that the State had failed to show that his rear license plate was not properly illuminated. The court, however, did not find defendant’s testimony credible. It relied instead on the affidavit of the officer, which stated that he had observed defendant traveling “with a rear plate not lit.” Because the State’s evidence was accepted below and because the State never sought a continuance to present further evidence, we do not believe it appropriate to remand to allow the State another opportunity to present further evidence.

The State’s motion to reargue, filed May 12, 2000, fails to identify points of law or fact overlooked or misapprehended by this Court. The motion is therefore denied. See V.R.A.E 40.

23 VS.A. § 1201 prohibits driving under the influence of intoxicating liquor or other substances that impair the ability to drive safely.

Even these decisions have not gone unchallenged. In Fishbein v. Kozlowski, 743 A.2d 1110 (Conn. 1999), the Connecticut Supreme Court recently rejected the argument that the “probable cause to arrest” element of its civil suspension statute incorporated a requirement that the initial investigative stop of the driver be lawful. As the court explained:

We accordingly conclude . . . that the legislature did not intend that the lack of a reasonable and articulable suspicion to justify an initial investigatory stop would be a basis for overturning the commissioner’s decision if the commissioner finds that, subsequent to the stop, “the police officer [had] probable cause to arrest the person for operating a vehicle while under the influence of intoxicating liquorAny interpretation that prevented the commissioner from suspending the license of a person who was stopped without a reasonable and articulable suspicion, but whom the police subsequently had probable cause to arrest for driving while intoxicated, would undermine the primary purpose of the statute, which is “to protect the public by removing potentially dangerous drivers from the state’s roadways with all dispatch compatible with due process.” Nothing in the legislative history. . . suggests a contrary conclusion.

Id. at 1116-17 (citations omitted).