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 by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

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before this opinion goes to press.

2019 VT 75

No. 2018-149

State of Vermont Supreme Court

On Appeal from

 v. Superior Court, Addison Unit,

Criminal Division

Paul R. Alzaga May Term, 2019

John W. Valente, J. (motion to dismiss); Helen M. Toor, J. (final judgment)

David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for

 Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. EATON, J. Defendant appeals his conviction for DUI refusal. On appeal, 

defendant argues: (1) the court erred in admitting testimony indicating that defendant had refused 

to take a preliminary breath test (PBT) and regarding the Horizontal Gaze Nystagmus (HGN) test; 

(2) the court committed plain error in instructing the jury and designing the jury verdict form; and 

(3) the conviction is invalid because the jury did not enter a verdict. We affirm.

¶ 2. Defendant was charged with DUI refusal after he was stopped on suspicion of 

driving while intoxicated and subsequently refused to take an evidentiary breath test. The DUI 

refusal statute prohibits someone who has a prior DUI conviction from operating, attempting to 

operate, or being in actual physical control of a vehicle on a highway and refusing an officer’s 
2

reasonable request for an evidentiary test “where the officer had reasonable grounds to believe”

the person was committing a DUI. See 23 V.S.A. § 1201(b). The term “reasonable grounds” as 

used in this context is akin to probable cause. State v. Perley, 2015 VT 102, ¶ 18, 200 Vt. 84, 129 

A.3d 93.

¶ 3. Prior to trial defendant filed a motion requesting that the DUI refusal charge be 

dismissed because he alleged that he was not the driver of the vehicle. He argued that the State 

could not show that he had operated the vehicle. He claimed that the dashboard camera showed 

that he switched seats with the actual driver when the vehicle was pulled over. The court denied 

the motion, concluding that there was enough evidence to allow the jury to fairly and reasonably 

find that defendant drove or had the intent to drive the vehicle. The court explained that any video 

showing the driver and passenger changing places was modifying evidence that was not relevant 

to the motion to dismiss.

¶ 4. At the outset of the trial, the court bifurcated the issue of whether defendant had a 

prior DUI conviction. The court explained that it would submit to the jury a verdict form with 

questions and if the jury affirmatively answered those questions, the court would ask them to 

determine whether defendant had a prior conviction. In addition, the State sought clarification on 

whether defendant’s refusal to take the PBT could be admitted. The court determined that the 

State could present evidence that defendant refused to take the PBT to demonstrate the 

reasonableness of the officer’s belief that defendant was driving while intoxicated. 

¶ 5. The case proceeded and during the State’s opening statement, defendant objected 

to the State’s reference to the results of the HGN test on the ground that expert testimony was 

required to demonstrate what the test means and how it relates to alcohol consumption. The State 

countered that if defendant sought to exclude this evidence, he was required to file a motion in 

limine prior to trial under Vermont Rule of Evidence 702. The court ruled that defendant had 

waived the issue by not raising it sooner. 
3

¶ 6. The State presented the following evidence. An officer was on patrol around 

midnight in downtown Middlebury and stopped at a tavern. While there, he observed a vehicle 

leave the parking lot and drive the wrong way down a one-way alley. The officer executed a stop 

of the vehicle. Defendant was in the driver’s seat, the keys were in the ignition, and the engine 

was running. The officer testified that he had special DUI training on how to look for clues of 

impaired driving, how to operate the evidentiary-breath-test machine, and how to conduct fieldsobriety tests. He also testified that he had taken an advanced roadside impaired driving 

enforcement class. After executing the stop, he noticed that defendant had watery eyes and slurred 

speech and there was an odor of alcohol coming from the vehicle. When questioned, defendant 

admitted drinking alcohol and could not recall exactly how much. Once a second officer arrived, 

the officer asked defendant to perform field-sobriety tests. The officer explained that these 

measure gross motor skills, balance, and memory. 

¶ 7. Defendant objected when the officer attempted to testify about administering the 

HGN. Defendant argued that there was no foundation because the officer did not describe any 

specific HGN training. The officer testified that his DUI training included information about how 

to administer the HGN test and the clues to look for. He also testified that the clues are an 

indication of a depressant like alcohol in a person’s system. When the officer testified, defendant 

again objected that there was an insufficient foundation for the testimony regarding the HGN and 

the lack-of-convergence tests. The court allowed the testimony to be admitted for the purpose of 

demonstrating whether the officer had a reasonable basis for believing defendant was DUI. The 

officer explained that how the test was given and what the different tests showed. The officer 

described the clues he observed for defendant. 

¶ 8. The officer also described administering the field-sobriety tests and testified that 

defendant did not complete the walk-and-turn test and exhibited several clues of intoxication while 

attempting it. Defendant refused to perform further tests. The officer testified that defendant 
4

refused to give a preliminary sample of his breath. The State introduced a video from the evening. 

Based on these observations, the officer arrested defendant. At the station, defendant refused to 

provide an evidentiary sample of his breath. 

¶ 9. On cross-examination, defendant played a video and asserted that it showed the 

occupants changing places. The officer stated that when he made contact, defendant was in the 

driver’s seat, the engine was on, and the keys were in the ignition. The officer stated that defendant 

did not claim at the time that he was not driving. 

¶ 10. Defendant’s defense at trial was that he did not drive the vehicle and never intended 

to drive the vehicle. Defendant testified that he had not been driving and had slipped into the 

driver’s seat when the vehicle was pulled over. He said that he switched to help his friend to avoid 

getting in trouble with the law. He agreed that when the officer asked how much he had been 

drinking, he said, “let’s just get this over with,” and admitted that he had done several shots in the 

preceding half hour. The other passengers in the car also testified that a different occupant was 

driving that night and that defendant was in the passenger seat. 

¶ 11. In discussion of the jury instructions, defense counsel stated that the issue was 

identity, not impairment. In closing argument, the State argued that the officer had reasonable 

grounds to believe defendant was driving under the influence. The State pointed to the odor of 

alcohol, the failed field-sobriety tests, the slurred speech, the watery eyes, defendant’s 

acknowledged consumption of alcohol, and defendant’s admission that he was going to get 

arrested. The State did not mention the denial of the request to take a PBT or the HGN and lackof-convergence tests. Defendant’s closing argument focused on the seat switch. He did not present 

any argument regarding whether there were reasonable grounds for the officer to believe he was 

DUI. 

¶ 12. The court instructed the jurors on the elements of the refusal offense, explaining 

that they had to find that (1) defendant operated, attempted to operate, or was in actual physical 
5

control of a motor vehicle, (2) the operation was on a highway, (3) police asked defendant to take 

an evidentiary test, (4) the officer had reasonable grounds to believe the defendant was driving 

under the influence, and (5) defendant refused to take the test. The jury was provided with a special 

verdict form listing questions for the jury to answer. Defendant did not object to the form. Later, 

the court made changes suggested by the parties and asked for further input. After discussion, 

there were no objections to the instructions. The jury returned an affirmative answer to all 

questions on the form. The court proceeded to the question of defendant’s prior convictions. 

Defendant stipulated that he had prior convictions and the court entered a guilty verdict.

I. Admission of Refusal To Take PBT and HGN Evidence

¶ 13. On appeal, defendant argues that the court erred in admitting evidence that

defendant refused to take the PBT1and in admitting the officer’s testimony describing the HGN 

test. As to the PBT refusal, defendant argues that: the PBT refusal was inadmissible under 23 

V.S.A. § 1203(f)2; admission of the PBT refusal violated defendants right to due process3; and the 

PBT refusal was inadmissible because it was unduly prejudicial. As to the HGN testimony, 

defendant contends that, without an expert, there was an insufficient foundation for admission of 

1

 Although defendant objected to admission of the PBT refusal at trial, he did not articulate 

the specific grounds raised on appeal. Because we conclude that admission of the refusal was 

harmless, if error at all, we do not reach the question of whether defendant properly preserved the 

arguments for appeal. 

2

 Because we conclude that any error in admitting the PBT refusal was harmless, we do 

not address defendant’s substantive arguments. We note, however, that we recently held that 

§ 1203(f) does not preclude admission of the refusal PBT in a refusal prosecution for the purpose 

of demonstrating whether there were reasonable grounds to suspect that the defendant was driving 

while intoxicated. State v. Schapp, 2019 VT 27, ¶ 17, __ Vt. __, 212 A.3d 1226. 

3

 Defendant contends that he had a constitutional right to refuse to take the PBT and 

therefore it violated his rights to due process to use that refusal against him. Because we hold that 

any error in admitting the PBT was harmless under the circumstances, we need not reach this 

argument.
6

evidence describing how the different clues relate to intoxication. We conclude that any error in 

admitting this evidence was harmless beyond a reasonable doubt.

¶ 14. Harmless errors are those that do not “affect substantial rights.” V.R.Cr.P. 52(a). 

To meet the standard “the reviewing court must find beyond a reasonable doubt that the jury would 

have returned a guilty verdict regardless of the error.” State v. Oscarson, 2004 VT 4, ¶ 30, 176 

Vt. 176, 845 A.2d 337. When the alleged error is admission of evidence, it is not harmless if “there 

is a reasonable possibility that the evidence complained of might have contributed to the 

conviction.” Id. (quotation omitted). In assessing the likelihood that admission of the evidence 

contributed to conviction, we consider, among other things, the importance of the evidence to the 

State’s case, whether it was cumulative, the existence of corroborating evidence, and the overall 

strength of the State’s case. Id. ¶ 32.

¶ 15. Here, defendant’s refusal to take the PBT and the evidence concerning the results 

of the HGN test were admitted to demonstrate that the officer had reasonable grounds to believe 

defendant was operating a motor vehicle while intoxicated. Neither piece of evidence formed a 

central part of the State’s case. The PBT refusal was mentioned only once during the officer’s 

testimony. Neither the PBT refusal nor the HGN test were mentioned during the State’s closing 

argument to demonstrate that the officer had reasonable grounds to believe defendant had driven 

while intoxicated. Further, this evidence was cumulative to the State’s other unchallenged 

evidence showing that the officer had reasonable grounds to believe defendant was driving 

impaired. That evidence included that defendant was in the driver’s seat of a vehicle with the keys 

in the ignition and the engine on, the vehicle had been driven the wrong way down a one-way 

street, defendant had watery eyes and slurred speech, defendant smelled of alcohol, defendant 

admitted to drinking alcohol, and defendant exhibited signs of intoxication while attempting to 

perform a field-sobriety test. These facts alone are sufficient to establish reasonable grounds to 

suspect defendant was committing a DUI. See State v. Coburn, 2006 VT 31, ¶ 15, 179 Vt. 448, 
7

898 A.2d 128 (holding that facts supported that there were reasonable grounds to believe defendant 

was intoxicated while driving given “odor of intoxicants, beer cans in the vehicle, defendant’s 

manner of driving, defendant’s admission that he had been drinking, and defendant’s inability to 

complete field sobriety exercises”).

¶ 16. Moreover, at trial, defendant did not contest the State’s evidence that he was 

impaired. Instead, defendant focused on his affirmative defense that he was not the driver of the 

vehicle. See State v. Ladue, 2017 VT 20, ¶ 10, 204 Vt. 502, 168 A.3d 430 (concluding that 

reference to HGN test was harmless where there was strong evidence of defendant’s impairment 

and defendant did not challenge impairment and instead focused on his claim that he was not 

driving vehicle). Because the PBT refusal and HGN evidence held limited value, there was other 

strong evidence of impairment, and the PBT refusal and HGN evidence were not related to the

central question contested at trial, the admission of these items, if error at all, was harmless beyond 

a reasonable doubt. Id. ¶ 31 (explaining that error in admission of evidence harmless if admission 

of evidence did not contribute to verdict). 

II. Jury Instructions and Jury Verdict Form

¶ 17. Defendant’s final argument concerns the jury instructions and the jury

questionnaire. As to the jury instructions, defendant argues that the court committed plain error in 

failing to provide an instruction on reasonable grounds. Defendant points to a different case 

regarding criminal refusal and asserts that the same instruction on reasonable grounds should have 

been provided here. See Perley, 2015 VT 102, ¶ 22 (replicating portion of jury instruction, 

including instruction defining reasonable grounds). 

¶ 18. Because defendant did not raise this objection to the jury instructions below, we 

review his claim for plain error. V.R.Cr.P. 52(b); see State v. Lambert, 2003 VT 28, ¶ 13, 175 Vt. 

275, 830 A.2d 9 (explaining that review is normally for plain error in absence of preservation). 

Jury instructions are considered in their entirety and this Court will find plain error “only when the 
8

entire charge undermines our confidence in the verdict, and only in extraordinary cases.” State v. 

Malshuk, 2004 VT 54, ¶ 9, 177 Vt. 475, 857 A.2d 282 (quotation omitted). To demonstrate plain 

error for jury instructions, a defendant must demonstrate that the error affected a substantial right 

and had “an unfair prejudicial impact on the jury’s deliberations.” Lambert, 2003 VT 28, ¶ 14 

(quotation omitted). 

¶ 19. When the jury instructions are taken as a whole, we conclude that they accurately 

reflect the law. “In charging the jury, the trial court has a duty to avoid confusing the issues by 

‘over definition,’ particularly when the word in question is one of plain meaning and may well be 

understood by its context.” State v. Dow, 2016 VT 91, ¶ 16, 202 Vt. 616, 152 A.3d 437 (quotation 

omitted). Based on this reasoning, we have held that a defendant is not entitled to a definition of 

“reasonable doubt” and the court did not commit plain error in failing to provide one. State v. 

McMahon, 158 Vt. 640, 641, 603 A.2d 1128, 1129 (1992). 

¶ 20. Similarly, we conclude here that that the term reasonable grounds had a plain 

meaning and could be understood by the jury in context. The court instructed the jury on the 

elements of the offense and explained that one element required the jury to find that the officer 

had reasonable grounds to believe that defendant was driving under the influence of alcohol. The 

court provided detailed instructions about “operation” and “actual physical control”—terms 

relevant to defendant’s claim he was not driving the car. It did not further define “reasonable 

grounds.” The existence of “reasonable grounds” was not a focus of the defense and the term is 

not highly technical. Under these circumstances, the omission of a more specific definition of 

“reasonable grounds,” if error at all, was harmless. 

¶ 21. Defendant also argues that the jury verdict form was deficient in this case because 

it did not incorporate his affirmative defense. Pursuant to statute, in a DUI proceeding, a defendant 

can assert as an affirmative defense that the defendant did not operate or attempt to operate or have 

physical control of a vehicle because the defendant “(1) had no intention of placing the vehicle in 
9

motion; and (2) had not placed the vehicle in motion while under the influence.” 23 V.S.A. 

§ 1201(g). Defendant asserted this affirmative defense in this case. 

¶ 22. The court crafted a verdict form that read:

 We the jury unanimously agree to the following:

 1. Mr. Alzaga operated or was in actual physical control of a motor 

vehicle: __ Yes __ No

 2. He did so on a highway: __ Yes __ No

 3. A police officer asked him to take a breath test: __ Yes __ No

 4. The officer had reasonable grounds to believe that Mr. Alzaga 

had been driving, or was in actual physical control of a vehicle, 

while under the influence of alcohol: __ Yes __ No

 5. Mr. Alzaga refused to agree to a breath test: __ Yes __ No

Defendant claims that after the first question, the form should have contained a question 

specifically addressed his affirmative defense and asked the jury if defendant had intended to drive 

the car that evening. Defendant acknowledges that he did not object to the questionnaire below 

and argues that the failure to include the affirmative defense was plain error.

¶ 23. The facts concerning development of the verdict form are as follows. The court 

discussed its proposed jury verdict form with the parties. Defense counsel questioned whether the 

form should include a specific reference to defendant’s affirmative defense. The court explained 

that the affirmative defense was relevant to the first question on the jury form and that if the jury 

was persuaded by defendant’s affirmative defense, it would simply answer “No” to that question. 

Defense counsel said “okay” and made no further objection to the language on the form related to 

the affirmative defense. Later in the trial, the court provided the parties with the final version of 

the questionnaire and asked if there was anything else. Defense counsel replied “No, Your Honor.” 

¶ 24. Because defendant did not object to the form or the accompanying instructions 

below, we review defendant’s claim for plain error. Applying the standard set forth above, we 
10

conclude that the form and accompanying instructions did not amount to plain error. The court’s 

instructions when read as a whole provided the jury with clear instructions on how to use the form. 

The court instructed the jury regarding the affirmative defense and explained that “if you were 

persuaded that [defendant] did not drive that night and was not intending to drive, then the answer 

to the first question you must answer is that he did not operate and was not in actual physical 

control.” We conclude that the instructions and the form accurately reflected the law and provided 

the jury with sufficient information about how to make findings on defendant’s affirmative 

defense. The absence of a question about the affirmative defense in the jury verdict form did not 

amount to plain error.

III. Verdict

¶ 25. Defendant’s final argument is that the jury did not return a verdict in this case and 

therefore his conviction is invalid. At defendant’s request, the court bifurcated the trial reserving 

the issue of defendant’s prior conviction for DUI. After deliberating, the jury unanimously 

answered affirmatively to the questions on the jury verdict form. The court then explained to the 

jury that it had to also find beyond a reasonable doubt that defendant had a prior conviction. The 

parties approached the bench and explained that defendant agreed that he had a prior conviction

and no additional deliberation by the jury was necessary. The court dismissed the jury and engaged 

in a colloquy with defendant to ensure that he was voluntarily and knowingly waiving his right to 

have the jury decide the prior-conviction issue. The court questioned whether it was necessary to 

bring the jury back and both parties agreed that it was not. The court then entered judgment based 

on the jury’s determinations and defendant’s stipulation. 

¶ 26. On appeal, defendant argues that it was error for the court to enter the verdict and 

that the court should have notified the jury of the stipulation and allowed them to consider whether 

to find defendant guilty. Not only did defendant not object below, he invited this error by 

affirmatively agreeing to the process. Invited error “is a branch of the doctrine of waiver by which 
11

courts prevent a party from inducing an erroneous ruling and later seeking to profit from the legal 

consequences of having the ruling set aside.” State v. Longe, 170 Vt. 35, 39 n.*, 743 A.2d 569, 

572 n.* (1999) (quotation omitted). Invited error differs from plain error in that it bars review in 

situations where a party considers an issue and makes a deliberate choice, compared to plain error 

where a party fails through neglect to make a proper objection. State v. Smith, 2010 VT 15, ¶ 8 

n.4, 187 Vt. 600, 992 A.2d 310 (mem.). Having specifically agreed to this process below, 

defendant has waived the argument now raised on appeal. State v. Morse, 2019 VT 58, ¶ 7, __ Vt. 

__, __ A.3d __ (holding that appellant waived challenge to jury instruction by agreeing to elements 

of charge in trial court).

Affirmed.

FOR THE COURT:

Associate Justice