State v. Kinney
27 A.3d 348
Vt.2011Background
- Kinney convicted of DUI third offense and attempting to elude after ATV pursuit in Bennington at night.
- Officer observed Kinney driving a distinctive ATV and later identified him at scene.
- ATV abandoned; Kinney found intoxicated with key to ATV in his pocket.
- Kinney declined a preliminary breath test (PBT); later Datamaster BAC measured around .208–.245.
- Video camera on the pursuing cruiser provided limited view; eyewitness identifications supported Kinney’s status as driver.
- Jury convicted Kinney; he was sentenced to 2–5 years’ imprisonment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of PBT refusal evidence | State argues harmless error/no preservation. | Kinney contends PBT refusal admissible under Blouin despite §1203(f). | Harmless error; no reversal. |
| Prosecutor's closing remarks on credibility | Guilt evidence supported by credibility assessment. | Remarks improperly attacked credibility or commented on Silence. | No plain error; arguments within bounds. |
| Sufficiency of identity evidence | Identity proven by eyewitness and circumstantial link to Kinney. | Possible third driver undermines identity. | Identity evidence overwhelming; conviction affirmed. |
Key Cases Cited
- State v. Kulzer, 2009 VT 79 (VT 2009) (harmless-error review for evidentiary errors in criminal cases)
- State v. Curavoo, 156 Vt. 72 (VT 1991) (harmless-error standard; corroborating evidence required)
- State v. Gates, 141 Vt. 562 (VT 1982) (prosecutor's veracity remarks reviewed for plain error)
- State v. Rehkop, 2006 VT 72 (VT 2006) (credibility-focused prosecutor remarks; potential impact on verdict)
- State v. McGuigan, 2008 VT 111 (VT 2008) (PBT use and admissibility; probable cause role)