State v. Stearns

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-543


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windsor Circuit

 John Stearns                                 May Term, 1992


 George F. Ellison, J.

 Gary Kessler, Supervising Appellate Prosecutor, Montpelier, for plaintiff-
   appellant

 Matthew F. Valerio of Abatiell & Wysolmerski, Rutland, for defendant-
   appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Defendant John Stearns was charged with driving under the
 influence (DUI) in violation of 23 V.S.A. { 1201(a)(2).  He filed a motion
 in limine to prevent the State from showing at trial that he refused to take
 a breath test, arguing that a contrary finding from an earlier civil
 license suspension proceeding was binding in the criminal case.  The trial
 court granted the motion, reasoning that the State was collaterally estopped
 from relitigating the refusal issue, and the State took an interlocutory
 appeal from that ruling.  We reverse and remand.
      Defendant was arrested for DUI on August 11, 1991, at which time he was
 asked to give a breath sample.  He indicated that he wished to consult with
 an attorney prior to deciding whether to take the breath test.  According to
 an affidavit prepared by the arresting officer, defendant was permitted to
 speak privately with an attorney, and thereafter refused to take the test.
 Defendant testified in a civil suspension hearing, however, that the officer
 failed to give him an opportunity to decide whether to take the test before
 recording that he refused.
      Pursuant to 23 V.S.A. { 1205(f), a civil license suspension proceeding
 was instituted against defendant in the district court.  In such a
 proceeding, one of the issues is "whether the person refused to permit the
 test."  Id. { 1205(g)(3).  A deputy state's attorney presented the State's
 case, which consisted of an affidavit of the arresting officer.  The
 affidavit stated that defendant refused to take the breath test but provided
 no details about the refusal.  Defendant appeared pro se and testified that
 he did not refuse to take the test.  The court accepted defendant's version
 of the incident, stating that defendant was not given enough time to decide
 whether to take the breath test after his conversation with the attorney.
 Judgment in the civil suspension hearing was entered for defendant, and the
 State did not appeal.
      One day prior to the judgment in the civil suspension proceeding, the
 State filed a criminal DUI charge against defendant.  In such criminal
 cases, refusal to take a breath test may be offered at trial as evidence
 against the defendant.  See 23 V.S.A. { 1202(d)(6).  Defendant moved to
 prevent the introduction of such evidence, arguing that collateral estoppel
 precluded the State from relitigating the issue after the district court's
 finding in the civil suspension hearing.  The trial court granted the
 motion.
      The trial court's decision was based on the doctrine of collateral
 estoppel, or issue preclusion.  The elements of issue preclusion are:
         (1) preclusion is asserted against one who was a party
         or in privity with a party in the earlier action; (2)
         the issue was resolved by a final judgment on the
         merits; (3) the issue is the same as the one raised in
         the later action; (4) there was a full and fair
         opportunity to litigate the issue in the earlier action;
         and (5) applying preclusion in the later action is fair.

 Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587
 (1990); see also Berlin Convalescent Center, Inc. v. Stoneman, 3 Vt. L.W.
 198, 200 (June 19, 1992) (applying Trepanier elements).  We have never
 applied issue preclusion in a case of cross-over estoppel -- that is, where
 one party claims that an issue decided in a civil case is precluded in a
 subsequent criminal case.  See People v. Gates, 434 Mich. 146, 155, 452 N.W.2d 627, 630 (1990) (stating that cases of cross-over estoppel are
 relatively rare).  We see no barrier, however, to the application of the
 doctrine in such a case as long as the standards of proof are the same and
 no right of trial by jury is affected.  Those requirements are met here.
      We agree with the trial court that the first three elements set forth
 in Trepanier are present.  Both the civil suspension proceeding and the
 criminal case were filed in the name of the State of Vermont, and the same
 prosecutor appeared for the State in both cases.  The question in the civil
 suspension proceeding was whether defendant refused to take the breath
 test, and the issue was resolved against the State.  That same determination
 must be made in the criminal case as a threshold to the admissibility at
 trial of the alleged refusal.
      The question before us reduces to whether there was a "full and fair"
 opportunity for the State to litigate the issue in the civil suspension
 proceeding, and to whether applying issue preclusion in the criminal case is
 fair.  In considering whether these two elements of Trepanier are
 satisfied, we must look to the circumstances present, including whether
 collateral estoppel is being used offensively or defensively, "the choice of
 forum, the incentive to litigate, the foreseeability of future litigation,
 the legal standards and burdens employed in each action, the procedural
 opportunities available in each forum, and the existence of inconsistent
 determinations of the same issue in separate prior cases."  Trepanier, 155
 Vt. at 265, 583 A.2d  at 587.  We are aided in this evaluation by decisions
 from other courts that have considered issue preclusion in similar
 circumstances.
      A leading case is the Oregon Supreme Court decision in State v.
 Ratliff, 304 Or. 254, 744 P.2d 247 (1987).  In Ratliff, a civil license
 suspension hearing was conducted in the Oregon Motor Vehicle Division
 involving a man charged with driving under the influence of intoxicants.
 The hearing officer entered judgment for the driver after finding that the
 police stop of his vehicle was not supported by reasonable suspicion that a
 crime had been committed.  Declining to give preclusive effect to this
 determination in a later DUI prosecution, the court reasoned:
         The legislature has established an administrative pro-
         cedure to be used when a driver refuses a breath test
         when suspected of driving while intoxicated.  That
         procedure provides for a suspension of a license through
         administrative procedures pursuant to the implied
         consent law. . . .  The administrative procedure can
         impose only limited sanctions and is designed to provide
         a simple and expeditious decision.  A distinct procedure
         exists in the criminal justice system to determine
         whether the driver is guilty of driving under the
         influence of intoxicants. . . .  The criminal trial is
         by constitution and statute more formal and hence more
         cumbersome.  If collateral estoppel could be used
         against the state in the criminal case, the state or the
         DMV, to protect its position at the subsequent trial,
         would have to litigate the administrative hearings more
         extensively. . . .  Thus, instead of the short, simple
         proceeding intended by the legislature, the license
         suspension hearings could become as long and as fully
         litigated as a criminal case.  The intent of the
         legislature presumably was to avoid this.

 Id. at 260, 744 P.2d  at 250 (citations and footnotes omitted).  The result
 of Ratliff, and at least part of the reasoning, has been followed in other
 jurisdictions.  See, e.g., State v. Walker, 159 Ariz. 506, 508, 768 P.2d 668, 670 (Ariz. Ct. App. 1989) ("[t]o subject the state to issue preclusion
 from civil proceedings in an informal forum where it lacked incentive to
 litigate as fully as it would in a criminal forum would circumvent the
 legislature's purposes in creating the expedited dispositional procedures
 for civil traffic violations"); People v. Moore, 138 Ill. 2d 162, 169-70,
 561 N.E.2d 648, 652 (1990) (state's incentive to litigate fully all issues
 in civil suspension proceedings is insufficient to justify issue
 preclusion); see also In re Dennis B., 18 Cal. 3d 687, 695, 557 P.2d 514,
 520, 135 Cal. Rptr. 82, 88 (1976) (applying collateral estoppel to issues
 decided in minor motor vehicle proceedings would impair the state's interest
 in maintaining the summary nature of such proceedings and would constitute
 gross unfairness to the state in criminal cases); Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 423 N.E.2d 807, 810, 441 N.Y.S.2d 49, 51 (1981) (permitting
 preclusion in such circumstances could ultimately frustrate the purposes of
 collateral estoppel).
      The Illinois statutory scheme outlined in Moore is very similar to the
 one in effect in Vermont.  Although the summary hearing takes place in a
 court, the proceedings are intended to be very swift and the State's
 evidence is given through a sworn police report.  The Illinois Supreme Court
 emphasized that these features were inconsistent with the application of
 issue preclusion, and that permitting such application would require
 officers to testify at the civil suspension hearings, resulting in a
 frustration of the purpose of the summary procedure.  138 Ill. 2d  at 169-70,
 561 N.E.2d  at 651-52.
      The rationale of Ratliff has been followed in other criminal cases, in
 contexts where issue preclusion is sought concerning an issue resolved in a
 less formal civil or administrative proceeding.  See, e.g., Lucido v.
 Superior Court, 51 Cal. 3d 335, 347-50, 795 P.2d 1223, 1229-32, 272 Cal. Rptr. 767, 773-76 (1990) (probation revocation determination does not
 preclude relitigating the issue in a criminal trial); Gates, 434 Mich. at
 161-65, 452 N.W.2d  at 632-34 (decision in child protection proceeding does
 not have preclusive effect in criminal trial).  The difference in the
 purposes of the civil and criminal proceedings must affect the wisdom of
 applying collateral estoppel.  As the court observed in Gates: "If we were
 to endorse the proposition that a determination of no jurisdiction in a
 child-protective proceeding operates to collaterally estop criminal charges,
 we would invite the risk that the proper functions of the two proceedings
 would be compromised."  434 Mich. at 162, 452 N.W.2d  at 633. (FN1)
      The Vermont civil suspension system is intended to work in a speedy and
 summary fashion.  See 23 V.S.A. { 1205(i) (hearings "shall be summary
 proceedings"); Reporter's Notes to D.C.C.R. 80.5.  There is little
 procedural formality, and the rules of evidence generally do not apply.  See
 D.C.C.R. 80.5(f).  The Legislature has specifically provided that affidavits
 of law enforcement officers and chemists are admissible to prove the State's
 case.  23 V.S.A. { 1205(i).  The affidavit of the law enforcement officer is
 prepared on "a standardized form for use throughout the state."  Id. {
 1205(b).  The system is structured so that the State can prove its case
 without taking the arresting officer from law enforcement duties to testify.
 Its weakness is shown in this case.  The officer does not know how defendant
 will testify when the officer completes the standard-form affidavit; as a
 result, the affidavit contains only a general statement that defendant
 refused the test.  The court must weigh the general information on this form
 against the defendant's live and detailed testimony to the contrary. (FN2) 
 The quality of the evidence is decidedly in defendant's favor.
      It is one thing for the State to assume the risk that a defendant's
 license will not be suspended because an officer's affidavit, in the face of
 defendant's live testimony, does not adequately convince the court.  It is
 quite another thing if the risk includes the substantial chance that
 defendant also will avoid criminal responsibility.  As the courts concluded
 in Ratliff and Moore, the effect would be that the State would be forced to
 try the criminal case, with live witnesses, in the civil suspension
 proceeding.  Application of issue preclusion would nullify the summary
 suspension proceeding that the Legislature enacted.
      Applying the Trepanier elements, we cannot conclude that the State had
 a full and fair opportunity in the civil suspension proceeding to litigate
 the issue of whether defendant refused the breath test, or that it would be
 fair to apply issue preclusion in this criminal case. (FN3) The decision to
 grant defendant's motion in limine was in error.
      Reversed and remanded.

                                         FOR THE COURT:




                                         Associate Justice



FN1.    We have found one contrary precedent, Gonzalez v. Municipal Court,
 242 Cal. Rptr. 60 (Cal. Ct. App. 1987), a decision of the California Court
 of Appeal.  The California Supreme Court refused review of the case and
 ordered that the opinion of the Court of Appeal not be officially published.
 Id. at 60.  The lower court held that collateral estoppel did apply to
 issues litigated in administrative licensing hearings, and concluded that a
 formalization of the administrative proceeding in question was commanded by
 the serious offense involved in the case.  We do not find Gonzalez
 persuasive, and note that it is a minority position and is disfavored in its
 own jurisdiction.  It relies heavily, if not entirely, on a precedent that
 has been significantly narrowed by the California Supreme Court.  See
 Lucido, 51 Cal. 3d  at 345, 795 P.2d  at 1231, 272 Cal. Rptr.  at 271-72.

FN2.    To reduce the risk of trial by ambush, the rule requires that the
 parties engage in informal discovery at a preliminary hearing.  D.C.C.R.
 80.5(e).  It does not, however, provide for disclosure of testimony and thus
 was not effective in this case to apprise the State of defendant's position.

FN3.    Our decision rests on the facts of this case.  We do not decide
 whether issue preclusion would be appropriate if the issue had been fully
 litigated in the summary suspension proceeding.