State v. Lowe

State v. Lowe (98-224); 169 Vt. 575; 740 A.2d 348

[Filed 12-Apr-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-224

                             JANUARY TERM, 1999

                                      
State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 1, Windham Circuit
Brian Lowe	                       }
                                       }	DOCKET NO. 36-2-98 WmCr

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

       The State appeals from a district court decision refusing to suspend
  defendant's driver's  license in this civil license-suspension proceeding. 
  The court held the State failed to present  sufficient evidence to prove by
  a preponderance of the evidence that defendant's alcohol  concentration was
  .08 or more at the time of operating a vehicle in violation of 23 V.S.A. § 
  1201(a)(1).  The State argues that the court erred in considering the
  margins of error, established  by the Department of Health performance
  standards for the Datamaster testing device, in deciding  that the State
  was not entitled to the presumption under 23 V.S.A. § 1205(m).  We affirm.

       On February 21, 1998, defendant was arrested for operating a vehicle
  with an alcohol  concentration of .08 or more.  See 23 V.S.A. § 1201(a)(1). 
  At a civil license-suspension hearing,  the State offered into evidence a
  breath-test result indicating an alcohol concentration of .083.   Defendant
  requested that a second test result, indicating a blood alcohol
  concentration (BAC) of  .079, also be entered into evidence.  The tests
  were taken within four minutes of each other.  Both  test results were
  admitted into evidence.  The State also submitted an affidavit from a
  chemist,  who works for the Department of Health, certifying that the .083
  test complied with Health  Department regulations on breath-testing methods
  and thus was an accurate and valid indication  of the alcohol content in
  defendant's system at the time of the test.

       The court asked the State whether it had any evidence to explain the
  different test results,  but the State submitted no further evidence. 
  Because the two tests were taken within a four  minute period, the court
  found that it was more likely that the discrepancy resulted from testing 
  error than from elimination of alcohol from defendant's system.  Further,
  it noted that the Health  Department regulations require that the infrared
  breath testing device (Datamaster) be capable of  determining a person's
  BAC within an accuracy of plus or minus ten percent.  Consequently, the 
  court held that the State had failed to present sufficient evidence to show
  that defendant's BAC  had been .08 on February 21, 1998.  The State
  appeals.

       At a civil license-suspension proceeding, the State has the burden of
  proving by a  preponderance of the evidence that a law enforcement officer
  had reasonable grounds to believe 

 

  that the person was operating a vehicle in violation of 23 V.S.A. § 1201,
  that the person submitted  to a test, and that the test result indicated a
  BAC of .08 or more at the time of operation.  See 23  V.S.A. § 1205(h)
  (Cum. Supp. 1996). (FN1)  The State is entitled to the benefit of two
  rebuttable  presumptions.  The first presumption is set forth in §
  1205(g)(4) (Cum. Supp. 1996), which states:


    Evidence that the test was taken and evaluated in compliance with rules 
    adopted by the department of health shall be prima facie evidence that 
    the testing methods used were valid and reliable and that the test results 
    are accurate and were accurately evaluated.

  This presumption concerns test result accuracy and testing method
  validity.  See V.R.E. 301(b)  (prima facie evidence of one fact establishes
  rebuttable presumption of another fact). 

       In State v. Rolfe, 166 Vt. 1, 14, 686 A.2d 949, 958 (1996), we
  explained that this  presumption shifts the burden of production to the
  defendant.  To rebut this presumption, the  defendant must present evidence
  challenging the accuracy of the testing method or of the test  result in
  the particular case.  See id.  Mere theoretical possibility that the test
  result is inaccurate  is insufficient to meet this burden.  See id.  If
  defendant meets this burden of production, the  presumption is rebutted. 
  See Reporter's Notes, V.R.E. 301.  The burden of persuasion remains 
  throughout the proceeding with the State.  See id. (burden of persuasion
  remains with proponent;  opponent's burden is to come forward with enough
  evidence to create jury question).

       The second rebuttable presumption is set forth in § 1205(m).  It
  provides that, once the  State proves the defendant's BAC was .08 or more
  within two hours of operating a vehicle, it is  then presumed the
  defendant's BAC was .08 or more at the time of operation.  See 23 V.S.A. § 
  1205(m) (Cum. Supp. 1996).  The purpose of this presumption is "to shift
  the burden of  submitting relation-back evidence to the party most able to
  provide it."  State v. Pluta, 157 Vt.  451, 455, 600 A.2d 291, 293 (1991).  

       The State confuses these two rebuttable presumptions in its brief.  It
  relies on the § 1205(m)  presumption concerning the relation-back issue,
  but, since the predicate fact for the first  presumption was rebutted and
  the State thereby lost its benefit, the issue of relating the test back  to
  the time of operation, the second presumption, never arose.  The
  defendant's introduction of  the .079 test presented evidence that the .083
  test result was not accurate.  Considering the  evidence of the two test
  results before it, the court could not conclude by a preponderance of the 
  evidence that defendant had a BAC of .08 or more at the time he was tested. 
  In arriving at the  conclusion that defendant had met his burden of
  production to rebut the § 1205(g)(4) presumption,  the court appeared to
  take into account both the existence of the .079 test result and the fact
  the  .083 test result was within a ten-percent margin of error of the legal
  threshold of .08.  The State's  failure to prove by a preponderance of the
  evidence that defendant's BAC was .08 or above, the first of the two
  rebuttable presumptions, ended the court's inquiry before reaching the
  second 
  

 

  presumption. 

       The State contends that the court erred by considering the ten-percent
  margin of error  specified by regulation. (FN2)  The applicable regulation
  provides:  "Analytical instrumentation  shall be capable of determining the
  blood or breath alcohol concentration of the person sampled  with an
  accuracy of plus or minus 10%."  Vermont Dep't of Health, Breath and Blood
  Alcohol  Analysis § C(I) in 4 Code of Vermont Rules 13140003-002.  In
  deciding for defendant, the court  stated that the .083 test was within the
  acknowledged margin of error of the legal threshold of .08.  To the extent
  the court may have implied that the ten percent margin of error raises the
  legal  threshold to .088, it was incorrect.  The statute does not require
  the State to establish that a  defendant's BAC was above .088 (.08 plus a
  ten-percent margin of error).

       We conclude, however, that the court merely relied upon the ten
  percent margin of error  to provide an explanation for two different test
  results in the absence of any other explanation.  Hence, there was no
  error.  The court was faced with two test results, one above the legal
  limit  and one below that limit.  The State presented no evidence to
  explain the different results, except  an affidavit indicating that the
  Datamaster is capable of determining BAC within an accuracy of  plus or
  minus ten percent.  Although not submitted for this purpose, the
  information could, of  course, explain the disparate test results.  In view
  of this explanation and the .079 test result, there  was no error in
  concluding that the State failed to meet its burden of proving a BAC of 
  .08 by  a preponderance of the evidence.


       Affirmed.	
                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



--------------------------------------------------------------------------------

  FN1.  23 V.S.A. § 1205 has been amended since defendant's civil license
      suspension  proceeding.  Consequently, the subsections discussed here do
      not correlate to those in the current  statute.  See 1997, No. 117 (Adj.
      Sess.), § 16.

  FN2  Another regulation requiring analytical instrumentation to "be capable
      of analyzing  replicate samples of breath containing a known amount of
      alcohol with a precision of plus or  minus 5% from their mean" is not
      applicable here.  See State v. Brooks, 162 Vt. 26, 32-33, 643 A.2d 226,
      230 (1994) (five-percent-deviation rule is laboratory calibration
      requirement, not field  performance criterion).