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 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may 

be made before this opinion goes to press.

2016 VT 30

No. 2014-427

State of Vermont Supreme Court

On Appeal from

 v. Superior Court, Addison Unit,

Criminal Division

Tisa Farrow December Term, 2015

Robert A. Mello, J.

Gregory Nagurney, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Mark Eastman Furlan of Furlan & Associates, PLLC., Rutland, for Defendant-Appellant.

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

¶ 1. ROBINSON, J. This case calls upon us to consider the admissibility of evidence 

of defendant’s decision not to complete a field sobriety exercise as requested by a police officer 

in the context of an answer to a question we left open in a prior decision: Under the Vermont 

Constitution, is a defendant’s refusal or failure to perform voluntary field sobriety exercises

admissible if the defendant was not advised at the time of the refusal that evidence of a refusal to 

perform the exercises may be admissible in court? We conclude that the refusal evidence is 

admissible without regard to whether police advised the individual that a refusal to perform the 

exercises could be admitted as evidence in court. Because we reject defendant’s argument to the 

contrary on this point, as well as her arguments that on the record in this case the evidence in 

question was irrelevant and unduly prejudicial, we affirm.
2

¶ 2. The relevant background is as follows. Defendant was arraigned on charges of 

driving under the influence (DUI) pursuant to 23 V.S.A. § 1201(a)(2) (“A person shall not 

operate . . . any vehicle on a highway . . . when the person is under the influence of intoxicating 

liquor.”).

1

 

¶ 3. Before trial, defendant filed a motion in limine seeking to exclude from evidence 

the arresting officer’s testimony about his observations and opinion regarding defendant’s 

performance of the “Modified Rhomberg Test” (MRT),

2

as well as the videotape of the event. 

Defendant had previously declined to perform field sobriety tests. Thereafter, at the officer’s 

request, defendant began the exercise in question, which involved closing her eyes, leaning her 

head back, and counting thirty seconds. She stopped five to eight seconds later, indicating that 

she did not want to do the exercise. Defendant’s written motion stated that the MRT evidence 

was irrelevant because the exercise was never completed and was thus unreliable, and that even 

if the evidence was marginally relevant, any probative value it had was substantially outweighed 

by the danger of unfair prejudice.

¶ 4. Argument on this motion overlapped somewhat with pretrial discussion of the 

court’s proposed jury instructions. Defense counsel argued that telling the jury it could infer 

consciousness of guilt from defendant stopping the exercise but not allowing the jury to consider 

any number of other reasons why she may have stopped the exercise would be highly prejudicial. 

During the argument on this motion, defense counsel also suggested that defendant was told to 

take the test, and was not given an opportunity to refuse.

 

1 Defendant does not appeal her convictions for driving with a suspended license, 

reckless endangerment, and violation of conditions of release associated with the same incident, 

and we do not address them here. See, e.g., Foster & Gridley v. Winner, 169 Vt. 621, 622, 740 

A.2d 1283, 1285 (1999) (mem.).

2

 The MRT is a balance test requiring the participant to stand with arms at side, feet 

together, and head back while closing his or her eyes for thirty seconds. 
3

¶ 5. In response, the State emphasized it was not planning to present the interrupted 

MRT as a “test,” but rather as an exercise that led to the trooper’s observations that defendant 

swayed briefly before stopping the exercise.

¶ 6. The trial court denied defendant’s motion in limine and admitted the contested 

evidence. The trial court noted that this Court had held that a defendant’s failure or refusal to do 

a voluntary field sobriety exercise is relevant as evidence of consciousness of guilt. See State v. 

Curavoo, 156 Vt. 72, 74-75, 587 A.2d 963, 964-65 (1991) (rejecting defendant’s argument that 

trial court erred by allowing evidence of his refusal to perform field sobriety exercises). The trial 

court also noted, however, that this Court had specifically declined to reach the argument that,

absent a warning that a refusal can be used against a defendant at trial, the refusal cannot be used 

in that way. Id. at 74 n.1, 587 A.2d at 964 n.1. With respect to the jury instruction, the trial 

court made it clear that it would instruct the jurors that, in addition to considering the possibility 

that defendant’s decision to stop the test reflected consciousness of guilt, they could consider 

other explanations raised by the defense.

¶ 7. At trial, the state trooper who arrested defendant testified to the following facts. 

At approximately 9:20 in the morning of September 17, 2012, the trooper stopped defendant 

after observing that she was driving a car with an expired inspection sticker. Upon approaching 

the car and seeing signs that she was intoxicated, the trooper ordered defendant to get out of the 

car. When she did, the trooper observed three empty six-to-eight-ounce wine bottles on the 

floorboard of the car. Defendant admitted to the trooper that she had consumed the contents of 

those bottles that morning. When the trooper asked defendant to perform field sobriety 

exercises, she said she did not want to because she was old3and had problems with her balance. 

The trooper testified that DUI suspects during roadside stops are not required to perform field 

sobriety exercises. After defendant declined to do field sobriety exercises, the trooper asked her

 

3

 The trooper testified that defendant was sixty-one years old.
4

to stand with her feet together, arms at her side, eyes closed, and her head tilted back while she 

counted the passage of thirty seconds. The officer testified that defendant started to do the 

exercise for a few seconds before opening her eyes and saying either that she could not, or did 

not want to, continue the exercise. He also testified that during the few seconds she attempted to 

perform the exercise she swayed before opening her eyes and stopping. The jury then watched a 

brief video recording of defendant attempting to perform the exercise. The trooper testified that 

he arrested defendant on suspicion of DUI on the basis of the above evidence.4 

¶ 8. Defendant neither testified nor presented any evidence.

¶ 9. Following the close of evidence, the trial court denied defendant’s motion for 

judgment of acquittal. With no objection from the defense, the court instructed the jury as 

follows:

 There has been testimony in this case about whether [defendant] 

declined—whether or not she declined to perform field sobriety 

tests. Under the laws of the State of Vermont, an operator 

suspected of driving while under the influence of intoxicating 

liquor has a statutory right to refuse to perform field sobriety tests.5 

You may consider whether [defendant] refused to perform field 

sobriety tests and may use this evidence, along with other 

evidence, to decide whether the State has met its burden of proving 

each of the essential elements of the offense beyond a reasonable 

doubt. However, you are not required to draw any inference from 

this evidence.

 

4

The State did not introduce any evidence of defendant’s blood alcohol concentration—

an essential element of a DUI charge pursuant to 23 V.S.A. § 1201(a)(1), but not pursuant to 

§ 1201(a)(2).

5 Vermont’s statutes do not actually address a driver’s right to refuse to engage in field 

sobriety tests, as contrasted with a preliminary breath test, but we have judicially recognized that 

an officer may not physically force an individual to perform field-sobriety exercises. See State 

v. McGuigan, 2008 VT 111, ¶ 17, 184 Vt. 441, 965 A.2d 511 (recognizing that roadside 

detainees may refuse to submit to field sobriety tests and police may not physically force 

detainees to perform tests); State v. Blouin, 168 Vt. 119, 122, 716 A.2d 826, 828 (1998) 

(concluding that police have right to request performance of field sobriety tests and individual 

has right to refuse to perform them); see also Commonwealth v. Blais, 701 N.E.2d 314, 319 

(Mass. 1998) (“The very nature of [field-sobriety tests] makes the use of force to compel their 

performance obviously inappropriate.”).
5

¶ 10. The jury found defendant guilty. Following the jury’s guilty verdict on the DUI 

charge, defendant stipulated to having been convicted of DUI on two previous occasions, thereby 

subjecting her to an enhanced punishment for DUI, third offense.

¶ 11. On appeal, defendant challenges the trial court’s admission of the video recording 

and the trooper’s testimony concerning defendant’s conduct and ultimate cessation of the MRT 

on the basis of the Vermont Rules of Evidence and the Vermont Constitution. With respect to 

the challenge under the Rules of Evidence, she contends that the trial court erred in concluding 

that the contested evidence was relevant and in failing to engage in a Rule 403 balancing test 

before admitting the evidence. With respect to the latter, she argues based on the Fourth and 

Fifth Amendments to the United States Constitution and Chapter I, Articles 10 and 11 of the 

Vermont Constitution that evidence of her terminating her participation in the exercise, offered 

through the video and the trooper’s testimony, may not be admitted to show consciousness of 

guilt when the trooper did not advise her that her refusal to do the exercise might be used against 

her at trial.6 

¶ 12. Two prior decisions of this Court serve as the starting point for our analysis of 

both sets of challenges. We have twice held that an individual’s refusal to perform a requested 

exercise may be admissible in court. In Curavoo, we rejected the defendant’s argument that 

because he had a right to refuse to perform field dexterity tests, his refusal could not be admitted 

in court. 156 Vt. at 74-75, 587 A.2d at 964-65. We cited a South Dakota case holding that a 

refusal to submit to field dexterity tests is evidence of consciousness of guilt, and explained that 

all relevant evidence is admissible, except as limited by constitutional requirements, statute, rules 

 

6 At oral argument, in direct contradiction of her briefing on appeal, defendant further 

argued that we should overrule our decision in Blouin, in which we held that an individual’s 

refusal to perform a field sobriety test is non-testimonial and therefore admissible in evidence. 

168 Vt. at 121-22, 716 A.2d at 828. We will not address an argument raised for the first time at 

oral argument, especially when it contradicts defendant’s brief on appeal. See TD Banknorth, 

N.A. v. Dep’t of Taxes, 2008 VT 120, ¶ 33, 185 Vt. 45, 967 A.2d 1148. 
6

of evidence, or other legal rules. Id. (citing State v. Hoenscheid, 374 N.W.2d 128, 132 (S.D. 

1985)). Because the defendant did not identify any source of law for excluding the evidence, we 

concluded that it was properly admitted. Id. In a footnote, we acknowledged the defendant’s 

argument that he was not warned that his refusal would be admissible in court, but because he 

did not raise the argument below, the record was silent regarding whether warnings were, in fact, 

provided at the time of the request. Finding no plain error, we declined to address the argument. 

Id. at 74 n.1, 587 A.2d at 964 n.1.

¶ 13. When we elaborated on the issue in Blouin, we emphasized the absence of any 

statutory or constitutional constraint on the admission of such refusal evidence, but did not 

revisit the question of whether an officer requesting participation in a field sobriety exercise must 

warn of the potential admissibility of a refusal. 168 Vt. at 122, 716 A.2d at 828. In that case, the 

trial court excluded evidence of the defendant’s refusal to perform a field sobriety exercise, 

concluding that because the defendant had a right to refuse to comply with the officer’s request, 

the refusal was inadmissible. This Court granted the State’s request for interlocutory appeal. 

Citing Curavoo for the proposition that evidence of a motorist’s refusal to perform a sobriety test 

is probative of guilt, and therefore relevant, we considered whether any rule of law would 

nonetheless require exclusion of the evidence. Blouin, 168 Vt. at 121, 716 A.2d at 828. We 

rejected the argument that introduction of a refusal to perform a field sobriety exercise violated 

the defendant’s privilege against self-incrimination. Id. Relying on a United States Supreme 

Court decision, we emphasized that the field exercise in question elicits a person’s physical, 

rather than testimonial, response and therefore does not trigger the privilege against selfincrimination. Id. at 121-22, 716 A.2d at 828-29 (citing Pennsylvania v. Muniz, 496 U.S. 582, 

602 (1990) for proposition that performance of horizontal gaze nystagmus test constitutes 

“physical rather than testimonial evidence and thus does not violate privilege against self-
7

incrimination” (quotations omitted)).7 We concluded that in the absence of any statutory 

language prohibiting introduction of the refusal evidence, the fact that a statute specifically 

provided for admission of evidence of an individual’s refusal to submit to an evidentiary breath 

test did not by implication mean that a refusal to submit to a field sobriety exercise is not

admissible. Id. at 122-23, 716 A.2 at 828. We noted that admission of the evidence was subject 

to Vermont Rule of Evidence 403, but reaffirmed the absence of any across-the-board restriction 

against admitting evidence of a refusal to engage in a field sobriety exercise. Id. at 123, 716 

A.2d at 829.

I. Evidentiary Objections

¶ 14. With this background in mind, we first consider defendant’s arguments under the 

Vermont Rules of Evidence. Defendant acknowledges we have held that refusal to participate in 

standardized field sobriety tests is relevant to show consciousness of guilt, subject to a balancing 

of probative value versus prejudicial effect pursuant to Rule 403. For several reasons, however, 

she argues that the challenged evidence in this case is not probative, and that its admission is 

unduly prejudicial. In particular, she argues that the exercise in question was not a standardized 

field sobriety test, and that its significance, if any, was not supported by any evidence that the 

exercise had scientific reliability. She further argues that there are a host of reasons other than 

consciousness of guilt or impairment due to intoxication to explain her decision to stop the 

 

7

It is this leap from the nature of the actual performance of the exercise as nontestimonial to the conclusion that a refusal to perform the exercise is nontestimonial that 

defendant, in a late-raised argument, asks us to revisit. Compare Blouin, 168 Vt. at 121-22, 716 

A.2d at 828 with Opinion of the Justices to the Senate, 591 NE.2d 1073, 1078 (Mass. 1992) 

(explaining that conclusion that evidence of refusal to submit to test is nontestimonial does not 

necessarily follow from fact that test results themselves are nontestimonial, and concluding 

under state constitution that refusal evidence is testimonial because its relevance is based upon it 

being “reflective of the knowledge, understanding, and thought process of the accused”) and 

State v. Fish, 893 P.2d 1023, 1032 (Or. 1995) (en banc) (concluding that individual’s refusal to 

perform field sobriety tests is testimonial evidence under state constitution’s self-incrimination 

clause). See generally F. Whited, 1 Drinking/Driving Litigation: Criminal and Civil § 6:2 (2d. 

ed. 2015).
8

exercise after five-to-eight seconds. She points to her age, general physical infirmity, and 

physical deterioration. According to defendant, in light of the absence of any evidence 

supporting the validity of the exercise in the first place, and the presence of many explanations 

for her decision to stop the exercise, the evidence in question proved nothing, and its admission 

was prejudicial because it suggested otherwise to the jury. 

¶ 15. We review the trial court’s ruling admitting the testimony and videotape evidence 

for abuse of discretion. State v. McCarthy, 2012 VT 34, ¶ 14, 191 Vt. 498, 48 A.3d 616 (“The 

trial court's discretion to allow relevant but arguably prejudicial evidence is particularly broad 

because Rule 403 provides for exclusion only when the danger of unfair prejudice substantially

outweighs the probative value. Unless the trial court either totally withheld its discretion or 

exercised it ‘on clearly untenable or unreasonable grounds,’ the trial court's evidentiary ruling 

will stand.” (citation omitted)). 

¶ 16. We conclude that the trial court did not abuse its discretion in admitting the 

evidence to show that defendant discontinued her participation in the exercise because: (1) the 

evidence may have some probative value in showing consciousness of guilt, and (2) especially 

given its instructions to the jury, the trial court could reasonably conclude that the prejudicial 

effect of the evidence did not substantially outweigh its probative value.

¶ 17. Our conclusion as to relevance flows from our decision in Curavoo. Evidence is 

relevant if it has “any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” V.R.E. 401. In Curavoo we concluded that a refusal to perform such exercises may 

demonstrate consciousness of guilt. 156 Vt. at 74-75, 587 A.2d at 964-65. The fact that 
9

defendant may have other explanations for her decision does not mean that the evidence does not 

have some tendency to show consciousness of guilt.8

¶ 18. Likewise, we conclude that the trial court acted within its discretion in balancing 

the probative value and prejudicial effect of the evidence. Rule 403 authorizes the court to 

exclude relevant evidence if its probative value is substantially outweighed by the danger of 

unfair prejudice. V.R.E. 403. Although the court did not specifically state that it was conducting 

a balancing pursuant to Rule 403, the record reflects that that is exactly what it did. See State v. 

Ovitt, 2005 VT 74, ¶ 9, 178 Vt. 605, 878 A.2d 314 (mem.) (“The trial judge does not need to 

articulate the precise weights assigned to the probative value or prejudicial effect of evidence, or 

specify why one outweighs the other.”). In the course of the argument on the motion to suppress, 

the court not only noted the potential probative value of the evidence as recognized in Curavoo, 

but it ascertained that the State would not be offering any opinion as to whether the exercise had 

been successfully completed—one of defendant’s biggest concerns with respect to prejudice. 

Moreover, over the State’s objection, the Court expressly instructed the jurors that they could 

consider whether defendant refused to perform the tests but were not required to draw any 

inference from evidence of a refusal. This instruction further mitigated the potential prejudice 

identified by the defendant, and left defendant ample opportunity to advance alternative

explanations for the refusal.

 

8 We emphasize our focus on defendant’s termination of her participation in the exercise 

as the touchstone for determining the relevance of the evidence in question. The validity of the 

manner in which she briefly performed the exercise as a means to evaluate impairment would be 

a distinct concern if the officer had testified that her performance demonstrated impairment. He 

did not, and the list of factors that he cited to support his conclusion that defendant was impaired 

did not include the manner in which she briefly performed the one exercise she opted to start. 

On cross examination, he explained that the two things he assesses when someone is performing 

the exercise are the individual’s ability to estimate thirty seconds and the presence of eyelid 

tremors, neither of which, he acknowledged, was present here. In closing, the State argued that 

defendant’s stopping the exercise showed consciousness of guilt, but did not argue that the 

manner of her performance itself showed impairment. For these reasons, we consider only the 

inferences the jury may draw from the fact that defendant stopped the test.
10

II. Constitutional Arguments

¶ 19. Defendant’s appeal raises a question that this Court has previously left 

unresolved: whether the Vermont Constitution requires—as a prerequisite to use of the 

individual’s refusal as evidence in court—that an officer advise an individual that refusal to 

perform a field sobriety exercise may be admitted as evidence of consciousness of guilt. 

¶ 20. Defendant’s arguments have shifted through the course of this litigation, and are 

not entirely clear. In her brief, she suggests that as a matter of Fourth Amendment law, as well 

as under Chapter 1, Article 11 of the Vermont Constitution, an officer may not conduct field 

sobriety exercises, which constitute a seizure, without a warrant absent exigent circumstances. 

Thus, according to defendant, she had a right to be told that refusing to participate could be used 

as evidence against her. She further argues that Chapter 1, Article 10 of the Vermont 

Constitution, in contradistinction to the analogous compulsion clause of the Fifth Amendment to 

the United States Constitution, prohibits the police from compelling her to give evidence against 

herself, regardless of whether it is considered “testimonial” or not. Neither of these contentions

supports the argument that defendant was entitled to notice that her refusal to perform field 

sobriety tests could be used as evidence against her.

¶ 21. Defendant’s arguments on these points are legal in nature, and thus we review the 

trial court’s decision anew, without deference. State v. Ford, 2010 VT 39, ¶ 7, 188 Vt. 17, 998 

A.2d 684.9

 

9 Although argument on the suppression motion included consideration of whether 

defendant was constitutionally entitled to notice that her refusal could be used as evidence, 

defendant did not identify the specific constitutional basis or bases for this argument below. We 

accordingly apply a plain error standard of review. See State v. Pelican, 160 Vt. 536, 538-39, 

632 A.2d 24, 26 (1993) (stating that plain error will be found only where failure to recognize 

error would result in manifest injustice). However, because we resolve both arguments on the 

basis of our established case law, our analysis of these questions does not turn on the standard of 

review—plain error versus preserved error.
11

¶ 22. We reject defendant’s Fourth Amendment argument. It is well established that 

police may, without a warrant but upon reasonable suspicion, ask a driver to perform field 

sobriety exercises. Defendant is correct that a seizure occurs when an officer requests an 

individual to perform field dexterity tests to determine whether the individual should be 

processed for DUI. State v. Gray, 150 Vt. 184, 190-91, 552 A.2d 1190, 1194 (1988). But we 

have held that when supported by reasonable suspicion, such seizures are constitutional because 

“the minimal level of intrusion occasioned by the requirement that [an individual] perform the 

dexterity tests [is] clearly outweighed by the strong law enforcement interest in attempting to 

keep a suspected drunk driver off the roads of this state.” Id., 150 Vt. at 191-92, 552 A.2d at 

1195; see also State v. McGuigan, 2008 VT 111, ¶ 13, 184 Vt. 441, 965 A.2d 511 (holding that 

administration of field-sobriety tests upon reasonable suspicion of DUI is reasonable for 

purposes of Fourth Amendment). Defendant cites no authority in support of her suggestion that 

because defendant was driving with a suspended license, and thus would not have been able to 

drive away in any event, she could not be asked to perform field sobriety exercises without a 

warrant. And defendant does not point to any other evidence that places this case outside of the 

usual rule. In the absence of any support for defendant’s position, we apply our established 

Fourth Amendment case law on the subject. Accordingly, to the extent defendant is challenging 

the police officer’s administration of the field sobriety tests at all, the challenge has no basis in 

the record or in law. To the extent defendant is arguing that the Fourth Amendment, and its 

Vermont Constitution analog in Chapter 1, Article 11, nevertheless require some sort of warning 

to an individual asked to perform field sobriety exercises, she makes no argument linking those 

constitutional provisions to the claimed warning requirement. 

¶ 23. We likewise reject defendant’s argument under Chapter 1, Article 10 of the 

Vermont Constitution, but we emphasize that the strength of our holding on this point is limited 

by the vagueness of defendant’s arguments on appeal. 
12

¶ 24. Defendant argues that the Vermont Constitution affords broader protection 

against self-incrimination than the United States Constitution because Article 10 provides that a 

person cannot be compelled to “give evidence against oneself,” whereas the Fifth Amendment 

provides that a person cannot be compelled to be “a witness against himself.” She argues that 

the protections against compelled self-incrimination in the Vermont Constitution accordingly 

extend to nontestimonial evidence.10 

¶ 25. This argument flies in the face of our established law. Further, it is not entirely 

clear how the argument is logically connected to defendant’s position that she was entitled to a 

warning that her refusal could be used as evidence at trial. With respect to the first point, we 

have repeatedly rejected the argument that Article 10 provides broader protections than the Fifth 

Amendment on account of the difference in language. See, e.g., State v. Rheaume, 2004 VT 35, 

¶ 18, 176 Vt. 413, 853 A.2d 1259 (“Despite the historical recognition of the privilege against 

self-incrimination and the language of Chapter I, Article 10, we have consistently held that, in its 

application to adults, the Article 10 privilege against self-incrimination and that contained in the 

Fifth Amendment are synonymous.”); State v. Ely, 167 Vt. 323, 330-31, 708 A.2d 1332, 1336

(1997) (stating that we have rejected “on a number of occasions” assertions that Article 10 

provides broader rights than Fifth Amendment).

¶ 26. Moreover, it is not clear how applying Article 10 protections to nontestimonial 

evidence, including, presumably, the field sobriety exercises themselves, would lead to a 

requirement that police warn an individual that her refusal may be used as evidence in court. 

The logic of defendant’s argument might support a conclusion that evidence of an individual’s 

refusal to perform an exercise is inadmissible in court—an issue we do not revisit here, see ante,

¶ 11, n. 5. But defendant does not provide a logical connection between Article 10, as she 

 

10 Implicit in defendant’s argument is the assumption that a refusal to perform field 

sobriety exercises, like the performance of those exercises, is testimonial for purposes of the 

United States Constitution. We express no opinion on the validity of this assumption.
13

understands it, and a requirement that an individual be warned of the consequences of a refusal 

before deciding whether to refuse a request to perform field sobriety exercises.

Affirmed.

FOR THE COURT:

Associate Justice