Close but not quite

State v. Alzaga, 2019 VT 63

By Andrew Delaney

Mr. Alzaga got hit with a DUI-refusal charge. Contrary to what it sounds like, this is not a criminal charge for refusing to drive while under the influence. In Vermont, if you’ve been convicted of DUI, then you can’t refuse a breath test if a law-enforcement officer has reasonable grounds to request one. “Reasonable grounds” in this context is akin to probable cause.

Before trial, Mr. Alzaga filed a motion to dismiss the charge. His argument was simple: he wasn’t driving. I believe we’ve referred to this as the Shaggy defense in the past. He claimed the dashboard camera showed him switching seats with the driver. That may have been, but the trial court wasn’t convinced. It denied the motion, reasoning that there was enough evidence to allow the driving-or-intending-to-drive question to go to the jury.

The trial court split up the issue of whether Mr. Alzaga had a previous conviction, noting that if the jury came back with the requisite “yeses” on the questionnaire, it would then ask the jurors to determine whether Mr. Alzaga had a previous conviction.

The State wanted to bring refusal of the roadside preliminary breath test (PBT) into the equation. The trial court ruled that was okay to show the reasonableness of the officer’s request.

The defense objected to a PBT reference during the State’s opening and made a last-ditch, that’s-scientific-evidence-and-the-State-ain’t-got-no-expert-to-prove-it pitch to the judge. The judge ruled that the defense had waived that argument by not raising it sooner.

The State put on its case—which, in very short form, included a car full of dudes leaving a tavern, driving the wrong way down a one-way street, and the officer finding Mr. Alzaga in the driver’s seat. The officer testified about field sobriety tests. Mr. Alzaga objected when it got to the horizontal gaze nystagmus (HGN) test. For those of you not in the biz or who have never had the pleasure of going through the field sobriety tests, that’s the test where the police officer shines a flashlight in the person’s eyes and waves his finger or a pen around. Again, the defense objected on the that’s-scientific-evidence-without-a-scientist basis, but the court let it in, reasoning that it was admissible for the purpose of determining whether there was a reasonable basis for the test request.

At the calaboose, Mr. Alzaga refused to provide an evidentiary sample of his breath. The defense crossed the officer with the video, but the officer stuck to the game plan. Mr. Alzaga and the other passengers in the vehicle testified that someone else was driving.

In closing, the State argued that the test request was reasonable because the officer had reasonable grounds. And the defense focused on the seat switch.

Here’s the real problem and I’d imagine you’re all starting to see it here: it’s not about whether the defendant was driving drunk or not—it’s about whether the police officer had reasonable grounds to request a test and whether the defendant refused.

The court gave the jurors the elements of the refusal offense on a verdict form and the jurors found those elements were present. Mr. Alzaga stipulated he had a prior conviction and the court entered a guilty verdict.

Mr. Alzaga appeals.

SCOV first takes up the challenges to the PBT and HGN evidence. SCOV notes that neither piece of evidence was a central part of the State’s case. Neither were mentioned during closing. SCOV reasons that there was more than enough evidence of potential intoxication to get the questions to the jury without this evidence. Mr. Alzaga didn’t even deny that he was drunk. He only denied that he was driving. In this context, SCOV reasons that even if there was some error in admitting this evidence, it was harmless because it would have had no effect on the verdict. And so, the challenges to the HGN and the PBT are disposed of quickly, with SCOV opining that if there was any error it was harmless beyond a reasonable doubt.

Mr. Alzaga’s next argument is that the trial court committed plain error when it failed to give a “reasonable grounds” instruction. No objection below, so SCOV moves into plain-error aka there’s-a-99-percent-chance-this-is-getting-upheld territory. Here, SCOV reasons that “reasonable grounds” had a plain meaning and the jurors could understand it in context. SCOV again reasons that any error, if there even was any, was harmless.

The next issue with the verdict form is that it didn’t include Mr. Alzaga’s affirmative defense. Once again, no substantive objection below. SCOV reasons that the trial court gave the jury instructions that told them to say no on the operating-or-intending-to-operate question if they believed Mr. Alzaga’s defense. Again, no plain error here.

Mr. Alzaga’s final argument is that the jury never actually found him guilty. This is technically true. If you recall, when all the questions came back “yes,” Mr. Alzaga stipulated that he had a prior conviction for DUI and the trial court entered the verdict. On this point, SCOV reasons that if there was an error, Mr. Alzaga invited it below so he doesn’t get to raise it on appeal.

And that’s the end of that. SCOV affirms Mr. Alzaga’s conviction. I’d imagine if this was an actual DUI charge, not a refusal, that the outcome would have been different. But who knows?