State v. Gilman
In State v. Gilman, 173 Vt. 110, 787 A.2d 1238 (2001), the failure lay in not providing the twenty-four hour coverage for DUI detainees required by the statute.
The Court held that it was irrelevant to our result whether a detainee was unable to consult with a lawyer because of illegal behavior on the part of the police officer or a failure of the defender general to provide coverage. Gilman, 173 Vt. at 118, 787 A.2d 1238 at 1244.
Where a consultation did not take place because no public defender was available to answer the telephone, we held that the same remedy was available as in cases where the police obstructed the consultation, that is, suppression of the result of the breath test, or of the fact that the detainee refused to provide a breath sample:
"The State broke the law, and as a result, defendant did not receive the advice he should have to determine how to respond to a police request for a blood alcohol test. The only fair remedy is to suppress the result of defendant's uninformed choice. We cannot . . . ignore the State's refusal to comply with the law." Gilman, 173 Vt. at 120, 787 A.2d 1238 at 1246.