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&n= bsp; &nbs= p; = &n= bsp; &nbs= p; = ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-491
= &n= bsp; &nbs= p; = &n= bsp; MAY TERM, 2005
State of Vermont  = ; &= nbsp; &nb= sp;  = ; } = APPEALED FROM:
v. = &n= bsp; &nbs= p; = &n= bsp; } = District Court of Vermont,
Thomas Little &nb= sp;  = ; &= nbsp; &nb= sp;  = ; }
} DOCKET NO= . 2719-6-04 CnCr
Trial Judge: James R. Crucitti
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Defendant Thomas Little appeals from his conditional guilty plea to driving while intoxicated.* He argues that the trial court er= red in denying his motion to suppress and dismiss. We affirm.
Defendant was charged with operating a motor vehicle in violation of 23 V.S.A. § 1201(a)(2). He filed a motio= n to suppress and dismiss, asserting that he had been denied the opportunity to obtain an independent blood test as authorized by 23 V.S.A. § 1203a(a) because the arresting officer had neglected to read him section eight on t= he DWI processing affidavit. Af= ter a hearing, the trial court denied defendant’s motion, finding that the officer had complied with the requirements of 23 V.S.A. § 1203a. The court explained that during processing, the arresting officer had read defendant section seven of the processing affidavit, which provides:
you submit to an evidentiary test, you have the right to have additional t=
administered at your own expense, by an individual of your own choosing.
The results will be sent only to =
your lawyer. At this time I =
providing you with a list of facilities in this area that are available to=
for drawing an additional sample of your blood.
Defendant indicated that he understood what the officer had told him. The officer provided defendant wi= th a list of testing facilities. Defendant then submitted to an evidentiary test. Before releasing him, the officer= forgot to read defendant section eight of the processing form, which would have informed defendant that because he was being released, he would need to ma= ke his own arrangements if he wished to have an additional test taken. Section eight also prompts the of= ficer to provide a standard blood test kit if the individual indicates that he w= ants an additional test; defendant was not provided with a test kit.
Based on these facts, the court concluded that the officer had complied with the requirements of 23 V.S.A. § 1203a because he had informed defendant o= f his right to have additional tests taken and he had provided defendant with a = list of testing facilities. As th= e court explained, the statute did not require that defendant receive the informat= ion contained in section eight, which was designed to facilitate the independe= nt testing process. The court f= ound no evidence that the officer’s failure to provide defendant with a test= kit prevented defendant from having a sample of his blood drawn for further testing. The court therefore= denied defendant’s motion to suppress and dismiss. Defendant filed a conditional gui= lty plea, and this appeal followed.
Defendant asserts that the trial court erred in denying his motion to suppress. He states that section eight of t= he processing affidavit informs him that it is his responsibility to make arrangements for an independent blood test, and it makes him aware that a = test kit is available. Defendant maintains that neither of these rights is enunciated in section seven of t= he affidavit, and they cannot be deemed to have been waived because the information was not relayed to him. According to defendant, the arresting officer effectively prevented= him from obtaining an independent blood test because he failed to provide the information contained in section eight.
We find no error in the trial court’s denial of defendant’s motio= n to suppress and dismiss. See State v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15 (when reviewing trial court’s ruling on motion to suppress, this Court accepts trial court’s findings of fact unless clearly erroneous, and reviews de no= vo whether the facts as found meet proper legal standard). A defendant has the right to have someone of his own choosing administer a chemical test, at his own expense= , in addition to any test administered by police. 23 V.S.A. § 1203a(a). The failure or inability to obtai= n an additional test, however, does not preclude the admission of the police-administered test “unless the additional test was prevented or denied by the enforcement officer.”= Id. There is no support for defendant’s assertion that the arresting officer prevent= ed him from obtaining an additional test or denied him this right by failing = to read section eight of the affidavit. As the trial court found, the officer read defendant section seven = of the processing affidavit and provided defendant with a list of testing facilities. This information= was sufficient to inform defendant of his statutory right to an independent bl= ood test.
Defendant relies on State v. Normandy, 143 Vt. 383 (1983) and State v. Kar= men, 150 Vt. 547 (1988) to support his assertion that the officer violated his = right to obtain an independent blood test. Defendant’s reliance is misplaced. In both Normandy and Ka= rmen, the defendants were detained in police custody after submitting to an evidentiary test. We held th= at the evidentiary test results should be suppressed because police had failed to inform the defendants that police could arrange for an independent blood t= est should defendants wish to exercise this right. Normandy, 143 Vt. at 387; = Karmen, 150 Vt. at 549. In Norman= dy, police neglected to read the following information to the defendant: “Since I am taking you to jail, you must tell me at this time if you= want a blood test so I can make arrangements.” 143 Vt. at 385. As we explained in Normandy, a defendant could not be expected to possess independent knowledge that he h= ad such a right, and because police had detained the defendant, they were “required to read the appropriate paragraph on the implied consent f= orm, which explicitly tells a defendant that assertion of the right to an independent sample is a prerequisite to the existence of that right.” 143 Vt. at 387= .
In this case, unlike those discussed above, defendant was not detained in pol= ice custody, and he was explicitly informed of his right to obtain an independ= ent breath test. The officerR= 17;s failure to read him section eight on the implied consent form, or provide him with= a test kit, did not deny defendant his right to an independent test nor did = it prevent him from obtaining such a test.&n= bsp; We find no error in the court’s denial of defendant’s m= otion to suppress and dismiss.
BY THE COURT:
Paul L. Reiber, Chief Justice
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
* The State notes that the written = plea agreement in this case does not indicate that defendant entered a conditio= nal plea. In light of our dispos= ition of this appeal, we need not resolve this issue.