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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
¶ 1. This driver's license suspension case stems from the State's accusation that defendant had been driving under the influence (DUI) before she crashed her car and was transported to the nearest hospital, which was located in New Hampshire. The State appeals the trial court's judgment in favor of defendant, which was based on the court's determination that defendant's refusal to provide a blood sample to the investigating Vermont state trooper must be suppressed because breath testing equipment was reasonably available. On appeal, the State argues that there should have been no suppression because breath testing equipment was not reasonably available. We agree and therefore reverse and remand.
¶ 2. Defendant is a New Hampshire resident. Shortly after midnight on October 18, 2015, she crashed her car while driving on Route 114 in Canaan, Vermont, near the border with New Hampshire.
¶ 3. Shortly thereafter, a Vermont state trooper arrived at the crash scene, and the agent told the trooper about his observations of defendant. The trooper then drove to UCVH, encountering defendant at roughly 1:48 a.m. in the emergency room.
¶ 4. Moreover, the trooper also testified that he did not have easy access to the breath testing equipment at the police station in Canaan,
¶ 5. The trooper cited defendant for DUI-1 in violation of 23 V.S.A. § 1201(a) ("A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway: (1) when the person's alcohol concentration is 0.08 or more. . . ."). Eight days later, the trooper served defendant with a notice of intention to suspend under 23 V.S.A. § 1205. The court held a preliminary civil suspension hearing on November 17, 2015, and a final civil suspension hearing on January 19, 2016. On July 26, 2016, the court issued judgment in favor of defendant because it determined that defendant's refusal to provide a blood sample to the trooper must be suppressed.
¶ 6. The court concluded "on this narrow set of facts" that "breath testing equipment was reasonably available" and that the trooper "assumed from the start that he was getting blood." It explained that the trooper could have taken defendant from UCVH back to Vermont but that the trooper did not explore that option. The court specifically found that there was "no indication that [defendant] posed any threat" and that the trooper "could have asked her if she would voluntarily take a ride with him." The trooper then could have transported defendant back to the police station in Canaan, but the trooper erroneously "did not make inquiry as to whether he could use [the equipment] because he did not plan to bring her back." Alternatively, the court said, the trooper could have transported defendant to the St. Johnsbury or Derby barracks, both of which definitely would have had breath testing equipment available.
¶ 7. On appeal, the State argues that breath testing equipment was not reasonably available because (1) it was not possible to obtain a breath sample within two hours of the crash and (2) the trooper had no legal means of transporting defendant back to Vermont for a breath test. In reviewing the judgment, we review the court's factual findings for clear error and the court's legal conclusions de novo.
¶ 8. Vermont law regarding DUI explicitly favors breath testing over blood testing. See
23 V.S.A. § 1202(a)(1). And if breath testing equipment is not reasonably available, then Vermont law provides that the driver impliedly consents to a blood test:
23 V.S.A. § 1202(a)(2). By these statutes, then, a trooper may require a blood test from a driver under the circumstances presented here only if breath testing equipment is not reasonably available. See
¶ 9. As a preliminary matter, it is important to note that the trooper would not have been permitted to administer a breath test in New Hampshire because Vermont law prevents him from operating the breath testing equipment used in New Hampshire. Unless prohibited by the laws of the neighboring state, Vermont law allows law enforcement officers to request a breath or a blood sample in a neighboring state. It also specifies that evidence of the breath or blood sample must not be suppressed merely because it was taken outside of Vermont:
23 V.S.A. § 1203(h). However, Vermont law also details that a breath test may be administered only by someone who is certified to operate the specific equipment being used. See
¶ 10. As the court pointed out, the trooper had a few potential options for administering a breath test to defendant in Vermont: taking defendant to the police station in Canaan or taking defendant to the St. Johnsbury or Derby barracks. Because the trooper did not ask, we do not know if defendant would have agreed to return to Vermont voluntarily. New Hampshire law provides that a police officer from another state who enters New Hampshire "in fresh pursuit . . . of a person in order to arrest him or her on the ground that he or she is believed . . . to have driven a motor vehicle . . . while under the influence of intoxicating liquor or a controlled drug in such other state, shall have the same authority to arrest and hold such person in custody. . . ." N.H. Rev. Stat. Ann. § 614:1. But New Hampshire law also specifies that "fresh pursuit . . . shall not necessarily imply instant pursuit, but pursuit without unreasonable delay."
¶ 11. And this potential delay is important in light of the evanescent nature of blood alcohol testing. When considering whether breath testing equipment is reasonably available, we must keep in mind the fact that blood alcohol content decreases with time, and blood alcohol testing is therefore time-sensitive. See
¶ 12. Whether the trooper would have been able to administer a breath test within the two-hour window is not dispositive of whether breath testing was reasonably available; it is merely one important factor in the analysis. Even if the trooper were able to transport and test defendant at either the Canaan police station or the St. Johnsbury or Derby barracks within two hours of the crash, neither option was "reasonably available." The Canaan police station was locked, and the person who had the key was out of state, and the St. Johnsbury and Derby barracks were both an hour to an hour-and-a-half away. At best, the trooper would have had to spend time tracking down a key to the Canaan police station, or he would have had to transport defendant all the way back to other available breath testing equipment in Vermont, all assuming he could gain defendant's consent to return to Vermont without New Hampshire process. And the strength of the evidence of defendant's blood alcohol concentration would continue to diminish while the trooper took these steps—the probative value of the breath test would be decreasing and the permissive inference of the two-hour window could even be lost.
¶ 13. Given these difficult circumstances, it cannot be said that breath testing equipment was reasonably available. See