State v. Hamm

Johnson, J.,

dissenting. I respectfully dissent. Previous decisions of this Court have interpreted 23 V.S.A. § 1202(d) and 13 V.S.A. § 5234 as placing an affirmative duty on the State to notify persons of their right to consult with a public defender before deciding to take a breath test when arrested on a suspicion of DUI. State v. Gracey, 140 Vt. 199, 201, 436 A.2d 741, 743 (1981); State v. Duff, 136 Vt. 537, 539, 394 A.2d 1145, 1146 (1978); see State v. Garvey, 157 Vt. 105, 595 A.2d 267 (1991). Section 1205(f)(2) provides that issues in a subsequent civil suspension hearing based on refusal to take a breath test include “whether at the time of the request for the evidentiary test the *668officer informed the person of the person’s rights . . . substantially as set out in subsection 1202(d).” Here defendant refused a lawyer and refused the test, but the State’s affidavit at the civil suspension hearing did not show that defendant was informed of his right to consult a public defender before taking the test. Defendant moved to dismiss on the grounds that the State failed to show he was informed of his rights. The trial court refused to consider the issue, as beyond the scope of the hearing. This was error, and it should not be cured by holding that the burden was on the defendant to prove that “lack of advice about a free consultation with a lawyer was in any fashion connected with his refusal.” Even if one were to adopt the majority’s viewpoint that defendant had the burden to prove such a connection, which I do not, the trial court did not allow defendant any opportunity to make a showing.

Motion for reargument denied November 5, 1991.

It is true that, on the present record, we are not able to determine why defendant refused the test. But asking the defendant to prove, after the fact, that he would have made a different decision if the State had informed him of all of his rights simply invites a defendant to assert self-serving justifications whose veracity cannot, as a practical matter, be either confirmed or disproved. We do know that defendant refused the test knowing only half of his right to consult counsel. If the right to consult counsel at public expense before making a decision on a breath test is to be meaningful at all, the defendant must be fully apprised of that right. Because of the inherent difficulties of proving or disproving prejudice, the only practical way of administering the statute and ensuring that a defendant has an opportunity to exercise his rights is .to require the State to prove, as part of its prima facie case, that defendant was substantially informed of the rights this Court has determined to be essential. Since the State failed to show that defendant was so informed, his motion to dismiss should have been granted.