What must Vermont prosecutors do if police plan to publicize preliminary breath test results in DUI cases?

Plain-English summary

The Vermont Department of Public Safety had adopted, or was considering, a policy allowing officers to release preliminary breath test results in DUI cases. A state prosecutor asked whether the policy would put prosecutors in violation of Vermont Rules 3.6(a) and 3.8(f). The opinion noted that these preliminary results may support probable cause but are inadmissible in the criminal prosecution under 23 V.S.A. § 1203(f).

Rule 3.6 restricts a participating lawyer's public statements that have a substantial likelihood of materially prejudicing a proceeding. Rule 3.8(f) separately restricts prosecutorial comments likely to heighten public condemnation of the accused and requires reasonable care to prevent prohibited statements by associated investigators and law enforcement personnel. The committee concluded that releasing preliminary breath test results is the type of statement the prosecutor cannot make directly.

The committee said an appropriate directive cautioning police not to disclose the results ordinarily should satisfy the prosecutor's reasonable care duty. If that directive proves insufficient, the prosecutor must consider further reasonable steps. The opinion did not say that a police agency outside the prosecutor's direct control automatically makes the prosecutor violate the rules.

In practice

For the proposed policy, the opinion identifies a prosecutor's caution to the police agency against releasing preliminary results as an ordinarily sufficient step. It leaves further measures dependent on whether the caution prevents disclosure.

Common questions

Q: May the prosecutor disclose preliminary breath test results publicly?

A: The opinion concludes that the prosecutor may not make an extrajudicial statement about those results. It treats them as both inadmissible and likely to heighten public condemnation of the accused.

Q: Does Rule 3.6 itself govern the police agency?

A: The opinion says Rule 3.6 applies to lawyers in the same firm or government agency, but does not extend directly to investigative or policy agencies reporting to a prosecutor. It addresses the prosecutor's duty concerning police statements under Rule 3.8(f).

Q: What does the opinion say ordinarily meets the reasonable care duty?

A: It says an appropriate caution or directive to police not to release preliminary results ordinarily should suffice. If that proves ineffective, further reasonable steps may be needed.

Background and rules framework

The opinion applies Vermont Rules 3.6(a) and 3.8(f), including their treatment of statements about test results and inadmissible evidence. It cites 23 V.S.A. § 1203(f) for the inadmissibility of preliminary breath test results in the criminal case.

Citations and references

Vermont Rules of Professional Conduct:

• Rules 3.6(a) and 3.8(f)

Statutes:

• 23 V.S.A. § 1203(f)

See also

• NY State Bar Op. 620: DA press release on seized evidence

Source

• Landing page: VBA disclosure opinions
• Original PDF: Vermont Advisory Opinion 14-04