Background
Defendant Andrew White was charged with driving under the influence (DUI), second offense; criminal refusal; and negligent operation following a March 2022 incident. At trial, the State presented evidence that a state trooper responded to a motor-vehicle accident and observed a broken utility pole with White’s pickup truck nearby. White identified himself as the operator and stated he had lost control while braking. When initially asked about alcohol consumption, he broke eye contact and turned away without responding. The trooper observed signs of impairment including a strong odor of alcohol, slow and mumbled speech, and evasiveness. Upon further questioning, White admitted to consuming one beer, then later told a second trooper he had consumed two beers. He performed standardized field-sobriety tests, exhibiting two impairment clues. Based on the totality of observations, the first trooper concluded White was impaired by alcohol to a slight degree. He was arrested and transported to the police barracks.
At the barracks, White stated he had consumed two high-alcohol beers and “half of an exploded beer” within thirty minutes before the accident. When asked if he was under the influence while driving, he responded “slightly,” giving the same answer when asked if he was currently under the influence. He refused to submit an evidentiary breath sample. Video of the DUI processing was admitted into evidence. The State also presented testimony from a Vermont Forensic Laboratory toxicology section employee regarding how alcohol affects motor vehicle operation.
The jury was instructed that to convict of criminal refusal, the State needed to prove the trooper had reasonable grounds to believe White was operating under the influence and that the request was reasonable under the circumstances, citing 23 V.S.A. § 1201(b). The question of whether White had previously been convicted of DUI was bifurcated. No party objected to the jury instructions. The jury convicted White of criminal refusal and acquitted him of the remaining charges. The court subsequently found he had been convicted of a prior DUI and imposed a fine and a suspended sentence with one year of probation.
The Court’s Holding
The Vermont Supreme Court affirmed the conviction. Writing for the panel, the Court addressed White’s argument—raised for the first time on appeal—that it is unconstitutional to criminally punish him for violating 23 V.S.A. § 1201(b). White maintained he has a constitutional right to refuse the officer’s request for a breath test and cannot be punished for that refusal, contrary to the language of § 1201(b) and § 1202(d)(6). He reasoned that an evidentiary breath test is a search triggering Article 11 protections under the Vermont Constitution, that he revoked his implied consent, and that no exigent circumstances existed to justify a warrantless search.
The Court reviewed for plain error only, noting this presents a “very high bar.” Plain error exists only in exceptional circumstances where failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave it strikes at the very heart of constitutional rights. A defendant must show error that is obvious, affects substantial rights, and results in prejudice.
The Court held White could not satisfy this standard. Putting aside other infirmities, he advanced a novel constitutional argument at odds with the plain language of § 1201(b). The Court explained that a novel constitutional argument does not rise to the level of plain error because it is not an “obvious” error for a trial court to fail to extend the meaning of the constitution on its own motion. The Court rejected White’s reliance on State v. Edelman, noting nothing in that case suggests it is unconstitutional to punish a refusal to provide a breath sample as set forth in § 1201(b). The Court reiterated that by exercising the privilege to drive on Vermont roads under circumstances giving rise to probable cause to believe they were intoxicated, defendants voluntarily accept the choice between consenting to a warrantless breath test and incurring legal consequences for refusal. The Court has repeatedly upheld the statute against challenges to its legitimacy and was unpersuaded that it was obvious White could not be punished for his refusal.
Key Takeaways
- Novel constitutional arguments raised for the first time on appeal cannot establish plain error because they are not “obvious” errors that a trial court must recognize sua sponte.
- Vermont’s criminal refusal statute, 23 V.S.A. § 1201(b), remains constitutionally valid; drivers who operate vehicles under circumstances giving rise to probable cause to believe they are intoxicated voluntarily accept the choice between consenting to a breath test and facing legal consequences for refusal.
- Plain error review requires showing an obvious error affecting substantial rights that results in prejudice; failure to extend constitutional meaning on the court’s own motion does not meet this standard.
Why It Matters
This decision reinforces the stringent requirements for plain error review in Vermont, particularly regarding unpreserved constitutional challenges. It confirms that criminal refusal statutes remain enforceable and that defendants cannot successfully argue for the first time on appeal that punishing refusal to submit to breath testing violates constitutional protections against unreasonable searches.
The ruling also clarifies that Vermont’s implied consent framework continues to withstand constitutional scrutiny, maintaining the balance between individual rights and public safety interests in removing impaired drivers from the roads.