State v. Hanks

State v. Hanks  (99-490); 172 Vt. 93; 772 A.2d 1087

[Filed 02-Mar-2001]


       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,
  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.


                                 No. 99-490


State of Vermont                               Supreme Court

                                               On Appeal from
     v.	                                       District Court of Vermont,
                                               Unit No. 3, Caledonia Circuit

Richard K. Hanks, Jr.                          September Term, 2000


Walter M. Morris, Jr., J.

       Robert Butterfield, Caledonia County Deputy State's Attorney, St.
  Johnsbury, for Plaintiff-Appellee.

       David J. Williams of Sleigh & Williams, St. Johnsbury, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       JOHNSON, J.   Defendant appeals his jury conviction on a charge of
  driving while under the  influence of intoxicating liquor (DWI), in
  violation of 23 V.S.A. § 1201(a)(2).  He argues that the  district court
  erred by limiting his cross-examination of the state chemist so that he was
  prevented  from challenging the State's reliance on a permissive inference
  that his breath test result indicated he  was intoxicated.  We conclude
  that the trial court abused its discretion by refusing to allow defense 
  counsel to cross-examine the state chemist concerning the potential
  variability among different  persons at different times in the conversion
  rate between their breath-alcohol (BrAC) and blood-alcohol (BAC)
  concentration.  Because we cannot be sure that the error was harmless, we
  reverse the  conviction.

 

       Defendant was stopped and arrested for DWI in the early morning hours
  of September 30,  1998.  Approximately one hour and twenty minutes after
  the stop, defendant submitted a breath  sample that indicated a
  concentration of .109 grams of alcohol per 210 liters of breath.  Defendant 
  was charged with driving "under the influence of intoxicating liquor," in
  violation of 23 V.S.A.  § 1201(a)(2), rather than driving with an alcohol
  concentration of .08 or more, in violation of  § 1201(a)(1).  Nevertheless,
  the State indicated that it intended to introduce defendant's breath test 
  result to take advantage of the permissive inference that defendant was
  intoxicated at the time of the  alleged offense.  See 23 V.S.A. § 1204(2)
  ("If the person's alcohol concentration at [the time of  operation] was
  0.08 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)");
  id. § 1204(3) ("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)").

       A jury trial was scheduled for September 28, 1999.  The day before
  trial, the State filed a  motion in limine asking the court to limit
  defense counsel's cross-examination of the State's expert  witness, a
  Department of Health chemist who was expected to explain the results of
  defendant's  breath sample.  The State asked the court "to exclude any
  examination based on variations as a  general matter in the human
  population in the so-called 'partition ratio.'"

       The "partition ratio" refers to the conversion rate between a person's
  BrAC and BAC.   Alcohol in the breath does not cause intoxication.  Rather,
  it is the impact of alcohol on the central  nervous system, particularly
  the brain, that causes the physiological and psychological changes 
  associated with impairment.  Alcohol reaches the central nervous system
  through the blood.  When 

 

  used to establish blood-alcohol levels, breath-testing devices such as the
  Datamaster machine use a  mathematical constant to approximate the
  percentage of alcohol in the blood based on the amount of  alcohol present
  in a breath sample.  Like other breath-testing machines, Datamaster uses a 
  conversion rate of 2100:1 as an assumed blood-breath ratio, which
  represents the relationship  between the number of alcohol molecules in the
  bloodstream to the number present in the breath  when both substances are
  tested simultaneously.  Thus, a 2100:1 conversion factor assumes that for 
  each molecule of alcohol in a given volume of breath, there are 2100
  molecules of alcohol in the  same volume of blood.

       It is generally recognized, as confirmed by the proffered testimony of
  the state chemist in the  instant case, (FN1) that "[b]ecause blood-breath
  ratios vary both between individuals, and at  different times in the same
  individual, a breath test based on a 2100:1 blood-breath ratio may not 
  accurately represent a particular individual's blood alcohol level."  State
  v. Brayman, 751 P.2d 294,  297 (Wash. 1988).  The state chemist agreed that
  partition ratios can vary from 1600:1 to 3000:1, and  further acknowledged
  that other experts have recognized an even greater variance in a small 
  percentage of the population.  The chemist explained that if the actual
  partition ratio were lower than  2100:1 because of factors such as body
  temperature or the ratio between red blood cells and blood  plasma, a
  breath test would tend to overestimate blood alcohol; the opposite would be
  true if the  partition ratio were higher than 2100:1.  The chemist conceded
  that, at its extremes, the variance  could significantly affect test
  results.  For example, in a related case, (FN2) the chemist testified that 
  if the 

 

  Datamaster reported a BrAC of .110 percent based on the standard 2100:1
  partition ratio, the  equivalent BAC would be .084 percent if the partition
  ratio were actually 1600:1 and .157 percent if  the partition ratio were
  actually 3000:1.

       In its motion in limine, the State sought to prevent defendant from
  cross-examining its expert  to elicit facts such as these, reasoning as
  follows.  Since 1989, the DWI laws have defined "alcohol  concentration" to
  mean either "the number of grams of alcohol per 100 milliliters of blood"
  or "the  number of grams of alcohol per 210 liters of breath."  See 23
  V.S.A. § 1200(1)(A)-(B).  Thus, the  Legislature has effectively accepted a
  standard partition ratio of 2100:1 and permitted BrAC samples  to stand
  independently.  In 1991, the Legislature redefined the term "evidentiary
  test" to mean a  breath or blood test that indicates "a person's alcohol
  concentration," as opposed to "the weight of  alcohol in a person's blood,
  as shown by analysis of the person's breath or blood," as it was 
  previously defined.  23 V.S.A. § 1200(3); 1991, No. 55, § 1.  Further, the
  permissive inferences  contained in § 1204 allow a jury to infer
  intoxication based upon a person's "alcohol concentration,"  which, as
  noted, is defined on the one hand as the number of grams of alcohol per 210
  liters of  breath, independent of any conversion to a blood-alcohol level.

       The State acknowledges that evidence on the variability of partition
  ratios was routinely  permitted before the 1991 amendments to the DWI laws. 
  E.g., State v. Robitaille, 151 Vt. 380, 383-84, 561 A.2d 412, 414 (1989)
  (on cross-examination, state chemist conceded that partition ratios  varied
  from 1375:1 to 3000:1).  In the State's view, however, given the
  legislatively adopted partition  ratio of 2100:1 and the amended definition
  of alcohol concentration to include the number 

 

  of grams of alcohol per 210 liters of breath, independent of a specified
  BAC level, any evidence on  partition-ratio variation would be irrelevant,
  and worse, confusing and misleading because it would  subvert the
  legislative statement of what the law is on this subject.  According to the
  State,  permitting an inquiry into partition-ratio variation would ignore
  the performance standards of the  Department of Health, which require a
  partition ratio of 2100:1, and would improperly allow the jury  to reject
  the statutory definitions of "evidentiary test" and "alcohol
  concentration."

       Before granting the State's motion in limine, the trial court reviewed
  several memoranda of  law submitted by the parties, heard extensive oral
  argument from the attorneys, and listened to both  direct and
  cross-examination of the state chemist concerning partition-ratio
  variations and related  matters.  In the end, the court agreed with the
  State that, because the permissive inferences in § 1204  refer to a
  person's "alcohol concentration," which is alternatively and independently
  defined by  Vermont law as "the number of grams of alcohol per 210 liters
  of breath," evidence concerning the  partition ratio between BrAC and BAC
  is simply not relevant.  The court also stated that, to the  extent that
  such evidence had some limited relevance, it would be outweighed by
  considerations of  undue prejudice and jury confusion.  In making this
  judgment, the court indicated that it was  adopting the analysis of the
  California Supreme Court in a case involving a prosecution for driving 
  with a BrAC exceeding the legal limit.  See People v. Bransford, 884 P.2d 70, 74 (Cal. 1994)  (because statutory provision prohibited driving with
  BrAC above specified level, and BrAC was  defined on basis of grams of
  alcohol per 210 liters of breath, evidence on variability of partition 
  ratios was not relevant in prosecution alleging driving with BrAC above
  statutory limit).

       On appeal, defendant argues that the court's decision violated his
  constitutional right to  confront and cross-examine the State's expert
  witness.  In defendant's view, testimony concerning 

 

  the variability of partition ratios was both relevant and exculpatory
  because it would have  demonstrated the possibility that the test result in
  this case was overstated and thus provided a basis  for the jury to reject
  the permissive inferences contained in § 1204.  Defendant contends that 
  Bransford and other cases relied on by the State are distinguishable
  because they concern so-called  "per se" DWI violations - violations of
  statutes making it unlawful to drive with a BAC or BrAC  above a specified
  level - rather than "generic" DWI violations - violations of statutes
  making it  unlawful to drive while under the influence of intoxicating
  liquor.  Defendant concedes that evidence  on the variability of partition
  ratios may not be admissible in cases involving per se violations under  §
  1201(a)(1), but contends that such evidence is relevant in cases involving
  generic violations under  § 1201(a)(2).  We agree.

       Without reaching defendant's constitutional claim of error, we
  conclude that the court abused  its discretion by prohibiting defense
  counsel from questioning the State's expert on the variability of 
  partition ratios.  All relevant evidence is admissible except as limited by
  constitutional, statutory, or  other law.  V.R.E. 402.  Thus, "evidence
  having 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" is admissible, V.R.E. 401,
  except that the evidence "may be excluded if its  probative value is
  substantially outweighed by the danger of unfair prejudice, confusion of
  the issues,  or misleading the jury," V.R.E. 403.

       The admissibility of evidence is generally addressed to the sound
  discretion of the trial court,  State v. Goodnow, 162 Vt. 527, 530, 649 A.2d 752, 755 (1994), and thus, the trial court retains wide  latitude to
  impose reasonable limits on cross-examination to prevent, among other
  things, undue  prejudice and confusion of the issues, State v. Cartee, 161
  Vt. 73, 77, 632 A.2d 1108, 1111 (1993).  

 


       Hence, this Court will not disturb the trial court's determination on
  evidentiary questions, including  the scope of cross-examination, unless it
  is demonstrated that the court has abused its discretion.   State v.
  Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996); Goodnow, 162 Vt. at
  530-31, 649 A.2d  at 755.  At the same time, however, we have recognized
  the integral value of cross-examination  as a tool for seeking the truth in
  legal proceedings and have recognized the right of defendants in  criminal
  cases to conduct reasonable cross-examination of the witnesses against
  them.  See Webster,  165 Vt. at 56, 675 A.2d  at 1332.

       In this case, defendant was not prosecuted for driving with a BrAC
  above the legal limit;  rather, he was charged with driving while under the
  influence of intoxicating liquor.  Thus, the State  was required to prove
  "that defendant had lost full control over the faculties of mind and body
  due to  the effect of intoxicating liquor."  State v. Gray, 150 Vt. 184,
  193, 552 A.2d 1190, 1196 (1988); see  State v. Bradbury, 118 Vt. 380,
  382-83, 110 A.2d 710, 711 (1955) (DWI law prohibits operation of  motor
  vehicle while under influence of intoxicating liquor "in the slightest
  degree").  To make its  case, the State could present not only evidence of
  defendant's condition at the time of operation, but  also a test result
  pursuant to the permissive inferences contained in § 1204.  State v.
  Dumont, 146 Vt.  252, 254 n.*, 499 A.2d 787, 789 n.* (1985).  As explicitly
  stated in § 1204(b), however, allowing the  use of test results as
  permissive inferences in generic DWI prosecutions under § 1201(a)(2) "shall
  not  be construed as limiting the introduction of any other competent
  evidence bearing upon the question  of whether the person was under the
  influence of intoxicating liquor."

       The permissive inference allowed, but did not require, the jury to
  find the inferred fact that  defendant was intoxicated.  See State v.
  McBurney, 145 Vt. 201, 205, 484 A.2d 926, 928 (1984).   Unlike a rebuttable
  presumption, a permissive inference does not "effectively place[] the
  burden of 

 
 
  going forward with the evidence on the party against whom it operates." 
  State v. Pluta, 157 Vt. 451,  453-54, 600 A.2d 291, 293 (1991); see
  McBurney, 145 Vt. at 205, 484 A.2d  at 928.  In Pluta, the  state chemist
  testified at trial that it is possible for a person to have a test result
  indicating a BAC  over the legal limit within two hours of operation and
  yet for that person's alcohol concentration to  have actually been under
  the legal limit at the time of operation.  The issue was whether that 
  testimony rebutted the statutory presumption that in a civil suspension
  proceeding if a test result  exceeding the legal limit was obtained within
  two hours of operation, then it shall be presumed that  the defendant's
  alcohol concentration exceeded the legal limit at the time of operation. 
  See 23  V.S.A. § 1205(n) (formerly § 1205(m)).  We stated as follows:

       To rebut a statutory presumption, the opponent's
       evidence must do  more than raise a mere theoretical
       possibility that the presumed fact  does not exist. . . .
       Otherwise, the use of a presumption to shift the  burden of
       going forward with certain evidence would be meaningless. 
       Since a rebuttable presumption already assumes that the
       presumed  fact will not be true in all cases, it is not
       rebutted simply by  recognizing the possibility that it can
       be rebutted.  To fairly put the  presumed fact in issue,
       specific evidence is required to show that the  presumed fact
       was not true in the particular case, given its actual 
       underlying facts and circumstances.

  Pluta, 157 Vt. at 454, 600 A.2d  at 293 (emphasis added) (citation omitted).

       The situation is not the same when a permissive inference is involved. 
  A permissive  inference does not shift the burden of going forward to the
  defendant; rather, as noted, the trier of  fact may choose to accept or
  reject the inference regardless of whether the defendant elects to present 
  evidence to challenge it.

       On the other hand, any evidence raising a doubt as to defendant's
  condition, which is the  ultimate question in a generic DWI prosecution
  under § 1201(a)(2), is relevant and admissible.  Here,  defendant presented
  testimony indicating that he showed few, if any, signs of impairment.  To
  bolster 

 
 
  that testimony and explain how his apparent lack of impairment was
  consistent with a test result  inferring that he was in fact impaired, he
  sought to elicit on cross-examination testimony from the  state chemist
  that it is possible for a breath-test result to inaccurately reflect the
  level of impairment  if the partition ratio is different from the
  statutorily assumed ratio because of various facts or  circumstances. 
  Though not highly probative given the unlikelihood that defendant's
  partition ratio at  the time of operation fell outside the normal curve,
  such evidence was unquestionably relevant  because it had some tendency to
  explain the alleged inconsistency between defendant's condition and  the
  test result.  Cf. State v. Rollins, 141 Vt. 105, 110, 444 A.2d 884, 887
  (1982) ("'It can well be  argued that if a person exhibited no physical
  signs of intoxication whatever but that the chemical test  for alcohol
  shows a level above .10% that the test was inaccurate.'") (quoting 1 R.
  Erwin, Defense of  Drunk Driving Cases, § 16.05, at 16-25 (3d ed. 1981)).

       We are not persuaded by the State's arguments that allowing defense
  counsel to cross-examine the state chemist concerning the variability of
  partition ratios would be inconsistent with the  statutory scheme and lead
  to jury confusion.  It is true that the Legislature has defined BrAC in
  terms  of "the number of grams of alcohol per 210 liters of breath," §
  1200(1), and that permissive  inferences may apply whenever a defendant's
  "alcohol concentration," as defined by statute, exceeds  0.08.  But
  allowing testimony on the variability of partition ratios would not prevent
  the jury from  accepting the statutory inference.  Because defendant is
  charged with driving while under the  influence rather than driving with an
  alcohol concentration exceeding the statutory limit, admitting 
  scientifically accepted evidence concerning the variability of partition
  ratios will not negate a  statutory offense or even an element of a
  statutory offense; rather, it will merely allow defendant to  challenge the
  permissive inference and the State's charge that he was impaired.  Thus,
  the cases 

 

  relied upon by the trial court and the State are not on point.  See
  Bransford, 884 P.2d  at 74 n.10  (holding that evidence on variability of
  partition ratios is irrelevant with respect to prosecution under  per se
  statutory provision defining offense on basis of grams of alcohol per 210
  liters of breath, and  declining to address whether refusal to allow such
  evidence in generic DWI prosecutions would  convert permissive inference of
  impairment into impermissible mandatory presumption); see also  Brayman,
  751 P.2d  at 296 (by redefining per se DWI offense in terms of specified
  breath-alcohol  ratio, statutory amendments rendered evidence of
  relationship of breath alcohol to blood alcohol  irrelevant "because breath
  alcohol content now forms an element of the per se DWI offense").

       Evidence on the variability of partition ratios would simply reveal to
  the jury that the breath-test result is based on a statutorily accepted
  conversion rate that tends to favor defendants, but that  the result is not
  unassailable with respect to demonstrating impairment.  We fail to see how
  such  evidence would be confusing to the jury or unduly prejudicial to the
  State; to the contrary, not  allowing defendants to reveal these
  scientifically recognized facts would make it difficult, if not 
  impossible, for a defendant to challenge a test result that is admissible
  in generic DWI prosecutions  only as a permissive inference on the ultimate
  question of impairment.  Accordingly, we conclude  that the district court
  abused its discretion in determining that such testimony would be unduly 
  prejudicial and confusing.

       Not surprisingly, the State has not argued, in the alternative, that
  any error on the part of the  trial court in limiting defendant's
  cross-examination of its expert was harmless.  The question of  whether
  defendant was impaired was hotly contested at trial.  In closing argument,
  the state's attorney  repeatedly acknowledged that defendant was not
  "falling down" drunk, but emphasized that, under  the law, the State had to
  prove only that defendant was slightly impaired.  The state's attorney 

 

  also emphasized the existence of the permissive inference created by the
  test result, stating that it  indicated defendant's alcohol concentration
  was well over the legal limit at the time of operation.   Under these
  circumstances, the trial court's limitation of relevant and potentially
  exculpatory  testimony concerning the variability of partition ratios
  cannot be deemed harmless.  See State v.  Carter, 164 Vt. 545, 555, 674 A.2d 1258, 1265 (1996) (adopting beyond-reasonable-doubt standard  for
  determining whether nonconstitutional errors are harmless in criminal
  cases).

       Reversed.

FOR THE COURT:

_________________________________________
Associate Justice

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                                  Footnotes


FN1.  The trial court held a hearing on the State's motion in limine
  on the morning of trial before  the jury was brought in.  At the behest of
  the trial court, the state chemist was examined and cross-examined at that
  hearing concerning the variability of partition ratios.

FN2.  The district court judge who presided over the Hanks case also
  presided over a case named  State v. Austin, which involved the same
  attorneys and identical issues.  In an October 29, 1999 entry  order, the
  court announced that it was incorporating the record of the Austin
  proceeding into the  record of the Hanks proceeding.