SUPREME COURT DOCKET NO. 2006-110
State of Vermont } APPEALED FROM:
} Unit No. 1, Windsor Circuit
} DOCKET NO. 282-2-06 Wrcr
In the above-entitled cause, the Clerk will enter:
Defendant Dale Porter appeals from the district court=s denial of his motion to amend conditions of release. 13 V.S.A. ' 7556(b). Defendant challenges the conditions requiring him to report to the Windsor Police Department daily to submit to alcohol testing. We affirm.
Defendant is charged with driving under the influence as a third offense. At the
arraignment, in addition to certain conditions of release agreed upon by counsel, the district court added two conditions that require defendant to report to the Windsor Police Department daily
between 8:00 and 10:00 a.m. and submit to alcohol testing. Defendant moved to amend the
conditions of release one week after the arraignment, and the court denied the motion.
This court must affirm the district court order Aif it is supported by the proceedings
below.@ 13 V.S.A. ' 7556(b); State v. Ashley, 161 Vt. 65, 68 (1993) (trial court has Abroad
discretion in setting conditions of release@).
Upon consideration of the record and the arguments of counsel for the parties, this Court
concludes that the proceedings sufficiently support the conditions imposed by the district court.
The district court=s concern for public safety prompted it to impose the conditions, and the record supports the court=s assessment that requiring defendant to report daily for alcohol testing is the
Aleast restrictive . . . condition which will reasonably assure protection of the public.@ 13 V.S.A.
The district court imposed the conditions to assure that the public is protected from
defendant=s drinking and driving, and so wanted to measure compliance with the condition
prohibiting consumption of alcohol. Defendant has a significant history of driving under the
influence: although the current charge is DUI as a third offense, a felony, defendant actually has
four prior DUI convictions. The court also noted that defendant=s blood alcohol limit was
allegedly 0.206, a very high test significantly beyond the legal limit of 0.08. The affidavit alleges that defendant was driving in an erratic manner at a high speed, that his speech was Aheavily
slurred,@ and that he acknowledged having had too much to drink. Defendant argues that his
driver=s license is now under presumptive suspension anyway, but the district court considered
that defendant also has a prior conviction of driving with a suspended license. The Court is also
not persuaded that the reporting conditions and license suspension create a Acatch-22@ because defendant lives alone seven miles from the police department, and is not allowed to drive but
must report daily for testing. There is cab service in the area. The district court concluded that
the license suspension and the prohibition on alcohol alone would not reasonably assure the
safety of the public; this Court defers to its broad discretion.
Finally, the Court notes that both at the arraignment and again at the motion hearing, the
district court said it would revisit the matter after defendant exhibited a period of compliance
with the conditions with no violations. While the district court did not disclose when it would
reconsider the matter, that is within the reasonable exercise of its discretion.
There is sufficient support in the record for the court-imposed conditions that require
defendant to report daily to the police department and submit to alcohol testing.
FOR THE COURT:
Paul L. Reiber, Chief Justice