State police omit breath test results from DUI reports: Media concerned about new policy

MIDDLEBURY — Vermont State Police press releases related to drunken driving cases no longer include results of the preliminary breath test (PBT) for drivers who submit to that test after they are stopped.
That decision is based on a directive from key Vermont Department of Public Safety officials, including Commissioner Tom Anderson, who assert — among other things — that making PBT results public prior to a drunken driving suspect’s arraignment might affect his or her ability to get a fair trial.
The decision, which took effect late last month, means media reports of driving under the influence stops will no longer reflect PBT readings. That information will now be kept secret until the investigatory affidavit about the case is released following the suspect’s court arraignment — which can be several days or weeks after the citation is issued.
State police officials signaled the impending change back in February, during a gathering with state news media aimed at revising the VSP’s policy on press releases.
Vermont Press Association (VPA) President Adam Silverman, along with other journalists, asked for a meeting with Public Safety Commissioner Anderson to chat about the PBT decision.
“The meeting never happened,” said Mike Donoghue, retired Burlington Free Press reporter and executive director of the VPA. “(The journalists) are still waiting. That appears to run contrary to the philosophy Gov. Phil Scott has said about transparency for his administration.”
The Vermont Press Association and its member publications have long advocated for the inclusion of PBT results in DUI press releases, believing such results are public information and can provide an important barometer of a suspect’s alleged level of intoxication while on the road. The legal limit for driving in Vermont is a blood alcohol content of 0.08 percent. Under the new VSP policy, the public won’t get a sense of the driver’s alleged level of impairment — whether it’s a 0.09 percent or 0.24 percent, or some other measurement — until after he or she answers to charges in front of a judge.
States have differing policies on the release of PBT results. Some, like Vermont, withhold that information until after a suspect’s arraignment. Others don’t. In Jupiter, Fla., for example, authorities released golf star Tiger Woods’ breathalyzer results (0.00) soon after his arrest for driving under the influence on May 29.
The Washington Post in April reported that for the first time, statistics now show that drivers killed in crashes are more likely to be on drugs than drunk. Forty-three percent of drivers tested in fatal crashes in 2015 had used a legal or illegal drug, eclipsing the 37 percent who tested above the legal limit for alcohol, the Post reported, citing a report released in April by the Governors Highway Safety Association and the Foundation for Advancing Alcohol Responsibility.
Vermont State Police provided the following explanation of their new policy — attributed to Anderson — upon request of the Addison Independent:
“Earlier this month, all Vermont State Police were directed by Field Force Commander Major Rick Hopkins to discontinue the release of Preliminary Breath Test (PBT) results in VSP press releases,” the statement reads. “As you are aware, the media was previously advised that this change was going to be made as part of the VSP’s overall review of its press policies.
“With support of Col. (Matthew) Birmingham and VSP command staff, Public Safety Commissioner Thomas Anderson determined that including the results of the PBT in the arrest press release is improper for the following reasons:
•  The PBT is not evidentiary, i.e., it is not admissible as evidence at trial.
•  At the time of the initial VSP press release, which normally occurs at the time of arrest, there has been no determination by the state’s attorneys whether charges will be filed, so no formal charges are pending in court.
•  It’s potentially prejudicial to the defendant, particularly in high-profile arrests.
•  The State’s Attorney’s Association has requested the VSP not release the PBT based on requirements of the professional conduct rules applicable to prosecutors.”
Locally, Addison County State’s Attorney Dennis Wygmans agreed with Anderson’s directive.
“Investigations are confidential until an individual is arraigned,” Wygmans wrote in an email. “While departments routinely publish press releases based upon arrests prior to arraignment, those releases typically provide non-specific information relating to the offense. By contrast, PBT readings are quite specific and have no evidentiary value. As such, I support this move by DPS, as it preserves the confidential nature of this non-evidentiary information until the time of arraignment.”
Donoghue, whose career in the Vermont media has spanned five decades, provided a historical perspective on the dissemination of PBT information.
He noted VSP “routinely” released breath tests results until their arrest of a deputy police chief from Burlington in July 2013, then a decision was made to stop providing the test results.
Former Public Safety Commissioner Keith Flynn reversed that decisionin October of 2014 as a matter of public interest, noted Donoghue, who covered the issue extensively. Flynn, a lawyer, also had his legal team study theVermont Constitution andthe Vermont Public Records Law.
It should also be noted that breath-test results are often available through the Department of Motor Vehicles before the person is arraigned in court.
“It is very disappointing that the new Vermont public safety commissioner, after arriving from Washington, D.C., opted to make this majorchange without speaking with members of the mediaand those interested in highway safety,” Donoghue said.“Publicizing the level of breath tests in the media has clearly delivered a safety message through the years that slows or stops drinkers from becoming intoxicated.”
Donoghue also took issue with Anderson’s theory that the release of breath tests could taint a prosecution.
“In over 200 years of criminal cases in 14 counties in Vermont, nobody can point to a case where a prosecution was overturned by pre-trial information,” Donoghue said. “To the contrary, the courts have noted extended questioning of jurors, calling in additional potential jurors, moving a trial are among the solutions to ensure a fair trial.”
The new VSP policy on the release of PBT results does not extend to municipal police departments throughout the state, many of which include such results in their DUI press releases. Among the local agencies that have been providing these results is the Vergennes Police Department. Chief George Merkel said he would continue to do so, “until someone tells me to do otherwise. We will do what the law requires me to do.”
Merkel said he believes publishing the PBT results has provided the public with a good reference point in alleged drunken driving cases.
“I will take it to the state’s attorney and see what the other chiefs are doing in the county, and take it from there,” Merkel said.
Reporter John Flowers is at [email protected].
Editors note: John Flowers is a past president of the VPA and current member of that organization’s media relations committee that has been discussing press release policies with state police. 

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