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Exchanging Pleasantries, But Not Legal Advice, Satisfies The State’s Obligation To Provide Legal Services Under The Implied-Consent Statute

In State v. Aiken, 2015 VT 99 (August 7, 2015), the Vermont Supreme Court held that there was no violation of the Implied-Consent Statute where a DUI defendant was able to exchange pleasantries with an on-call public defender, but did not receive any legal advice.

Issue: DUI Defendant appealed a decision denying his motion to suppress his refusal to submit to a breathalyzer test on the grounds he was denied his right to counsel under Vermont’s Implied-Consent Statute, 23 V.S.A. 1202. The police had called two different public defenders for him and allowed him to speak privately with the one who answered. After Defendant exchanged pleasantries with the attorney, he was placed on hold for ten minutes. The police officer tried calling the public defenders again, but no one answered. After thirty minutes, pursuant to the statute, Defendant was asked if he would take the breathalyzer and he refused.

Holding: The Court affirmed the trial court’s decision. It concluded that the police satisfied their obligations under 23 V.S.A. 1202(c) by notifying Defendant of his right to counsel, making all reasonable efforts to contact a public defender, and allowing him to speak privately with the public defender. It also concluded that there was no violation of the defender general’s obligation to provide adequate legal services under 23 V.S.A. 1202(g). Section 1202(g) can be violated if there is an issue with a detainee’s access to counsel. Although no legal advice was provided in this case, the Court held that exchanging pleasantries was sufficient to create an attorney-client relationship and satisfy the access issue. It refused to examine the content of the communication, holding that the content of confidential communications cannot be the basis for determining a violation of section 1202(g).

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