State v. Bartlett

State v. Bartlett  (95-331); 165 Vt 590; 683 A.2d 9

[Opinion Filed 3-Jul-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-331

                              MAY TERM, 1996


State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 3, Orleans Circuit
Donald Bartlett                      }
                                     }     DOCKET NO. 650-11-94OsCr


       In the above-entitled cause, the Clerk will enter:

       Defendant was convicted by a jury of driving under the influence of
  intoxicating liquor in violation of 23 V.S.A. § 1201(a)(2).  At issue in
  this appeal is a jury instruction based on 23 V.S.A. § 1204(a)(3). 
  Defendant objected unsuccessfully to the instruction and, after the
  verdict, moved for a new trial on the same ground.  The court denied the
  motion.  We affirm.

       The fact witnesses at trial, specifically the arresting officer,
  defendant, and defendant's friend, told different stories of the events
  leading up to defendant's arrest.  Some undisputed facts did emerge,
  however.  Around 6:00 a.m. on October 2, 1994, the officer found
  defendant's abandoned vehicle, which had gone off the road, over an
  embankment, and overturned.  The vehicle was traced to defendant, and
  shortly afterwards, the officer visited defendant at his home.  Defendant,
  who at the time was visibly intoxicated, admitted that he had been driving
  the vehicle when the accident occurred around 3:00 a.m. that morning.  When
  questioned about drinking, defendant told the officer that he had consumed
  four beers between 9:00 and midnight the previous night, and that he had
  had nothing to drink following the accident.

       The officer took defendant to a local hospital, where he could be
  treated for a possible neck injury.  While at the hospital, the officer
  took a breath sample from defendant.  The test was administered at 7:48
  a.m., almost five hours after the estimated time of operation.  At trial,
  the State's expert witness testified that defendant's blood-alcohol
  concentration (BAC) was 0.187 at the time the test was taken.  The expert
  further testified that if defendant had stopped drinking at midnight, and
  consumed no alcohol following the accident, his BAC at 3:00 a.m. would have
  been 0.259.

       Defendant took the stand at trial, and although he confirmed the
  statements he had made to the officer, he testified that in fact he had
  been drinking following the accident.  Defendant's friend testified that he
  saw defendant consume a substantial amount of alcohol following the
  accident, between nine and twelve ounces of vodka along with one or two
  beers.  On cross-examination, the State's expert admitted that defendant's
  BAC at 7:48 a.m. could have been explained by this amount of post-accident
  drinking.

       The court's charge to the jury included the following statement:

       You may, but are not required to, infer that defendant was under the
       influence of intoxicating liquor if you find there was an alcohol
       concentration in defendant's

 

       breath of .10 percent or more -- at any time within two hours of his
       operating a motor vehicle on a highway.

       This instruction is based on 23 V.S.A. § 1204(a)(3), which provides:

       If the person's alcohol concentration at any time within two hours of
       the alleged offense was 0.10 or more it shall be a permissive inference
       that the person was under the influence of intoxicating liquor in 
       violation of section 1201(a)(2) or (3) of this title.

       Defendant argues that the State is not entitled to § 1204(a)(3)'s
  permissive inference in this case because the breath test was not
  administered within two hours of operation.  We do not reach this argument,
  however, because we conclude that the error, if any, was harmless.

       There was no need in this case to charge the inference permitted by §
  1204(a)(3).  The State presented evidence relating defendant's test result
  back to the time of operation.  The only evidence of the time of operation
  was the officer's unrebutted statement that defendant told him the
  estimated time of the accident was 3:00 a.m.  On the basis of defendant's
  test result and his statement to the officer that he had nothing to drink
  after midnight, the State's expert testified that defendant's BAC at 3:00
  a.m. was 0.259, well above the 0.08 limit established by 23 V.S.A. §
  1201(a)(1).  If the jury believed the expert's testimony, the § 1204(a)(3)
  inference was unnecessary.  If the jury did not believe the expert's
  testimony, the inference was irrelevant.

       Defendant nonetheless maintains that the jury might have voted to
  convict him based on the instruction even though they believed the friend's
  story about post-accident drinking.  We could accept this argument only if
  we believed that the jury suspended common sense when it entered the jury
  room.  The primary job of the jury in this case was to decide whether to
  believe defendant's earlier statement to the officer, or to believe the
  story he and his friend told in court. We think it entirely unlikely, as
  did the trial court, that the jury would have believed defendant's story
  but "unanimously [voted] to convict defendant regardless of finding him not
  guilty."

       Affirmed.


     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice