By Michael Donoghue
Several Vermont police agencies, including the state police, have reversed themselves and resumed releasing breath test results when drivers are arrested for driving while under the influence of alcohol.
The move comes after more than a 12-month effort by the Burlington Free Press for greater transparency concerning the arrests of impaired drivers on Vermont roads.
The Free Press maintained that the Vermont Constitution and the state public records law trumped efforts by some state prosecutors to muzzle police. The state’s largest daily also argued that public safety should prevail over politics.
Police routinely released breath tests results at the time of the arrests until the summer of 2013 when an off-duty Burlington deputy police chief was nabbed in nearby Franklin County for suspected DUI. The Vermont State Police, which had always released breath test results, balked in the case of Burlington Deputy Chief Andi Higbee, who was pulled over for not using his turn signal on a rural road.
One day after Vermont State Police refused to make Higbee’s test results public, his defense lawyer released them to the Free Press. One test showed Higbee was under the legal limit and one showed he was just over.
The first test on the Datamaster machine showed the off-duty officer was 0.077 percent and a second test showed he was 0.083 percent. Adult drivers in Vermont are presumed to be under the influence at 0.08 percent.
The Free Press also uncovered internal VSP memos that showed the Higbee stop was part of a concentrated state police patrol that directed troopers to make at least two traffic stops an hour. State police denied it was a “quota system,” and classified the mandate as a “benchmark.”
Higbee later pleaded guilty to a reduced charge of careless and negligent driving and was fined $500.
Vermont Democratic Gov. Peter Shumlin, a strong advocate of government transparency, had said in September 2013 he favored the release of DUI test results at the time of the arrest and urged his public safety commissioner to reexamine the issue.
Commissioner Keith Flynn, who had initially supported the withholding of the record by his state police, reversed field earlier this month. Flynn, a former longtime state prosecutor, directed state police to release the Preliminary Breath Test (PBT) results in all future DUI cases in which a driver submits to the test, or to say if the driver refused.
Flynn stopped short of telling state troopers to release the Datamaster results, which are the official tests used in criminal prosecutions. The Datamaster stores a sample, while the PBT, also known as an Alco-Sensor, does not retain a sample.
Flynn said the reversal came after a full review by Vermont State Police lawyers, his own legal review, and a check with the attorney for Gov. Shumlin.
For the past year, several police departments had ignored the request of state prosecutors, who cited their rules of professional responsibility that they are expected to uphold. Those rules tell Vermont prosecutors to urge police not to say anything that might be considered prejudicial for a criminal case.
The chiefs maintained it was up to each of them to establish final policies within their respective police departments — not prosecutors. Most said the test results only reaffirm what the officer reports about the DUI arrest.
Two of the 14 county prosecutors in Vermont initially said in 2013 they favored the release, but later reversed themselves after pressure from other prosecutors. When state police reversed themselves in October, Chittenden County State Attorney T. J. Donovan did not object and said he respected the department.
“It was an advisory opinion,” Donovan said referring to a memo prosecutors had circulated to all police agencies a year ago urging their silence on DUI tests.
Burlington, South Burlington and Middlebury Police were among those that started balking on releasing test results.
After several rejections when seeking release of test results, the Free Press eventually took a new route: It filed a public records request seeking civil paperwork about the DUI arrests.
When drivers are arrested for DUI in Vermont, police also issue them a civil hearing notice that their license will be considered for suspension by the Department of Motor Vehicles. The police officer is expected to write on the civil hearing notice the Datamaster alcohol test result. The suspension notice has a civil docket number at court, while a DUI would have a criminal docket number.
When the Free Press petitioned the DMV for a test result in a Burlington case, Motor Vehicle Commissioner Rob Ide asked for a full legal review by his department. Ide later announced he believes Vermont law requires his department — both as a regulatory agency and as a law enforcement unit — to release the test results promptly at the time of the arrest.
Ide directed his department to provide the Free Press the civil license suspension notice, including the test result, from the Burlington case. Burlington Police had released the document, but blacked out some information, including the test result.
The Burlington case in question involved a driver slowly pulling out of a parking lot in his pickup truck about 2:30 one morning and colliding with a bicycle that was speeding down Main Street hill with no brakes, no lights, no reflectors and the bicyclist wearing dark pants and dark shirt. The driver tested 0.155 percent and was ordered into court on a DUI charge, the DMV records show. The bicyclist also was ticketed for lack of proper equipment, city police said.
Ide also told the Free Press that he considers not only the Preliminary Breath Test a public record, but also the Datamaster test as soon as police finish processing the DUI suspect.
Gov. Shumlin, Secretary of State Jim Condos and other strong transparency advocates welcomed the announcements by state police and the DMV.
“I am pleased that Commissioner Flynn and the Vermont State Police are keeping the public informed of their work in trying to keep Vermonters safe from drunk drivers,” Shumlin told the Free Press on Oct. 3.
The moves by both the Vermont State Police and the DMV also have caused some other police agencies that withheld the test results for the past year to rethink their position. Both the South Burlington and Middlebury Police are among those resuming the release of results.
At the request of the Free Press, Burlington Police Chief Michael Schirling has asked the city attorney’s office to reconsider its earlier legal opinion about keeping the test results under wraps at the time of the arrest.
Schirling says there is no dispute a breath test result is public. The issue is when it is released – at the time of the arrest, at the time the impaired driver appears in court for arraignment on the DUI charge (normally a month after the arrest) or sometime in between.
During the past year the Free Press was unable to find one police officer who favored withholding the test result at the time of the arrest.
Ide, who served in the Vermont Senate for 10 years, said his department’s primary focus is highway safety and releasing breath tests immediately can help reduce the amount of drinking and driving on Vermont highways.
“It is my belief that it is a public document. It is public property and they have a right to know,” the commissioner said.
Mike is a reporter for the Burlington Free Press and a member of NEFAC’s Board of Directors. You can find him on Twitter at @FreepsMikeD.