State v. Brian Kendall, 2016-179

At ~12:15 a.m. on Sept. 21, 2015, Rutland police responded to a report of an intoxicated underage male in a truck in a courthouse parking lot; officer's affidavit stated engine running and headlights on and that defendant sat in the driver’s seat.
Officer's affidavit recorded that defendant said he had driven from Ludlow to Rutland and had arrived about 25 minutes earlier (≈11:50 p.m.) and last drank around 9:30–10:00 p.m.
Officer observed indicia of intoxication (odor of alcohol, bloodshot/watery eyes, slurred speech), had defendant perform field exercises, then arrested him.
At 1:33 a.m. defendant submitted to breath testing: BAC .133 and .132 nine minutes later. He was charged under 23 V.S.A. § 1201(a)(1).
The only witness at the civil-suspension hearing was defendant’s girlfriend, who testified she took the keys, the engine was not running, and she returned with a car before police arrived.
Trial court credited the officer’s affidavit (including defendant’s statement that he drove from Ludlow), discredited the girlfriend’s timeline, found operation around 11:50 p.m., applied the §1205(n) two-hour presumption, and upheld the suspension.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Kendall)	Held
Whether State proved defendant operated the vehicle	Officer affidavit and defendant’s statement show he drove from Ludlow to Rutland ≈11:50 p.m.	Girlfriend testified engine wasn't running and she had the keys; no operation at officer arrival	Court credited officer affidavit/defendant’s statement, rejected girlfriend’s testimony, found operation ≈11:50 p.m.; suspension upheld
Whether BAC may be imputed to time of operation (relation-back/presumption under 23 V.S.A. §1205(n))	BAC > .08 within two hours creates statutory presumption that BAC exceeded limit at time of operation	Argues State failed to produce relation-back evidence and he rebutted presumption with girlfriend’s testimony	Court applied §1205(n) presumption because BAC tests were within two hours and defendant failed to rebut; presumption stands

State v. Pluta, 157 Vt. 451 (1991) (defendant bears burden to rebut §1205(n) presumption)
State v. Giard, 178 Vt. 544 (2005) (to rebut §1205(n) defendant need only produce evidence supporting finding BAC < .08 at time of operation)
State v. Green, 173 Vt. 540 (2001) (when suspension is based on BAC over limit, State must prove by preponderance that defendant operated the vehicle)
State v. Freeman, 177 Vt. 478 (2004) (trial court is factfinder for witness credibility and weighing evidence)