*1
43
(Fla.
ward);
State,
147,
v.
accord Buchanan
482 So.
148
2d
Dist. Ct.
1983);
(Ill.
Torres,
752,
1986);
v.
App.
People
494 N.E.2d
755
App. Ct.
(Wis.
1998).
905,
State Thompson,
v.
585 N.W.2d
911
Ct. App.
Against
background,
treatment
patient undergoing
only
a brief period
area,
time cannot reasonably expect either to restrict access to the
families,
or to control whether other
their
patients,
or the other
categories
personnel
mentioned
are present
above
in the area.
Therefore, defendant
enjoy
objective,
did not
expectation
privacy
room,
the emergency ward treatment
where
subject
eyes
“conversations are
of passersby.”
ears
State
Brooks,
490, 493, 601
963, 964
157Vt.
A.2d
argues
Defendant
11
that Article
should provide occupants of
an emergency room treatment area privacy
interest commensurate
with that afforded
individuals
their homes.
recognized
We have
the home “represents a unique historical category
‘special
with
expectations of privacy1 warranting
strongest
constitutional
protection from
Geraw,
warrantless searches and seizures.”
Vt.
173
at
Morris,
Affirmed.
[890 68] A.2d No. 03-551 Dooley, Johnson, Skoglund Reiber, JJ., Present: Allen, (Ret.), C.J. Specially Assigned 22, 2005
Opinion July Filed Reargument September 22, 2005 Motion for Denied *2 Davis, Attorney, Dan and A. County M. Windham State’s Scott Brattleboro, Willison, Attorney, for Plaintiff- Deputy State’s Appellant. Fine, Athens, L.
Stephen Defendant-Appellee. for ¶ Skoglund, for stop processing 1. J. After traffic that resulted influence, arresting while under the officer served defend- driving Suspend Disqualify ant Anderson with Notice of Intention to and/or to 28 V.S.A. 1205. Privilege Operate, pursuant Driver’s License hearing, to dismiss for failure to At Anderson moved preliminary could based his motion on granted. state a claim on which relief He test, the suspen- breath as the fact that the results his indicated form, produced reading sion of an alcohol concentration of .08%,” which “equal is not to or more than on the form. The suspension court and the civil agreed appeals dismissed case. State court erred in to a argues allowing go the matter to hearing, expert final at which it would be allowed introduce evidence relating Anderson’s blood alcohol back to the time he was level operating a vehicle.We affirm the district court. that, argues The State when the test is below the
legal limit, the prove healing State should be allowed to at the final at operator’s operation BAC the time would been have by using than 0.08 officer’s affidavit of the State’s This at approach proof chemist. confuses State’s burden of civilsuspension hearing with the basis for a civil commencing suspension and fails to civil proceeding acknowledge the premise suspension procedure. The procedure is designed serve protecting public the remedial purpose safety by quickly removing potentially dangerous drivers from through purely the roads end, a administrative means. To that law enforcement officer to issue a suspend, authorized notice intention to which itself serves aas until temporary operator’s license the date the suspension unless, within seven days, contests the *3 (3). 1205(d)(2), in hearing § seeks a court. V.S.A. district In this case, the officer lacked the to statutory prerequisite issuance of a — notice of intention to suspend reading breath test of 0.08 BAC or more. the court was correct that the determining officer’s “facially affidavit was insufficient to civil support commencement of suspension proceedings.”
¶ A3. review the relevant statutes is A order. criminal DUI is defined “A person operate, as follows: shall attempt operate, to or be in physical actual of any control on a highway vehicle when the [] person’s more;... alcoholconcentration is 0.08or person or when the is (2). under the influence of intoxicating 1201(a)(1), § liquor.” V.S.A. resolve, Recognizing protracted criminal cases can be and slow to session, the 1989 created the suspension system to a speedy summary facilitate drunk procedure get to off drivers Stearns, the roads through State suspension. license 159Vt. 140, 142-43(1992).
617 A.2d “The suspension scheme serves the rational purpose remedial of protecting public safety by quickly removing dangerous the roads.” State v. potentially from drivers Strong, 158Vt. 56, 61, 605 510, 513 A.2d
¶ that a person was grounds to believe 4. If an officer has reasonable control of a or in actual physical to attempting operate, operating, 1201,” that the request the officer shall “in of section violation vehicle person’s blood test to determine to or person submit breath 1202(a)(3). taking Consent to such 23 V.S.A. alcohol concentration. to implied pursuant content is determine blood alcohol tests to 1202(a)(1). enforcement officer process, the civil a law 5. Under of intention to test can issue a notice requests who vehicles, if the of motor on behalf of the commissioner suspend, “was 0.08 or alcohol concentration person’s indicates being to or actual attempting operate at the time operating, more 1201.” 23 in violation of section V.S.A. control a vehicle physical notice, 1205(c). must and it accompany The affidavit the officer grounds if the officer had sufficient it avers that reasonable shall be 1201, and, person operating that the violation of after believe was 1202(d), person his under submit- rights informed of or her being person’s whose “indicated that the alcohol concen- ted to a test results to submit to an person tration was 0.08 or the refused 1205(b). begins suspension process. Thus the civil evidentiary test.” 1205(a), upon 6. Pursuant of a law enforcement officer person that the officer believe inor actual control of a operating, attempting operate, physical person in violation of and the to a test and vehicle submitted results alcohol concentration was “the test indicated attempting being 0.08 or more at the time of operating, control, actual the commissioner shall of 90 and until the period days license ... operating 1205(a) governs with section 1209a of complies [Title 23].” Section commissioner, For actions of the not the law enforcement officer. his suspend. the officer issues a notice of intention to commis- part, after suspends any challenge finally sioner the civil opera- after has been determined or conceded that the resolved id. 0.08 at time See operation.1 tor’s BAC was or more also *4 given of the the commissioner This commissioner mimics authority authority prior finding the court the enactment of the civil when a that the suspension process, “[u]pon grounds operating, that the ... officer had reasonable to believe defendant was attempt highway ing [while or in of a motor a actual control vehicle on under operate, physical drugs, intoxicating of or other or the court shall forward the the influence both], liquor hearing who shall to the commissioner motor vehicles, report 1206(a) or after criminal conviction final (governing suspensions of an appeal). determination important 7. was aware of this distinction process only upon that the commence an officer’s (noting an
stating “[t]he officer obtained test time taken) person’s and date the test was the test indicated that the more____” 1205(b)(5). Id. alcohol was 0.08 or To be concentration clear, means number of of alcohol grams “alcohol concentration” breath, per person’s 210 liters of and the breath indicates the test (3). Id. 1200(1)(B), alcohol Obviously, concentration. only person’s
indicates alcohol concentration at the time the test. not, alone, It standing does establish the alcohol concentration at the time of operation.
¶ However, 8. also a statutory presumption created to support allegation person’s an that the BAC was 0.08 or more at the 1205(n) that, time of Section provides a proceeding “[i]n section, under if any this there was at of operat- time within two hours ing, or attempting operate being in actual physical control a vehicle an alcoholconcentration of 0.08 or it shall be a rebuttable presumption person’s alcohol or concentration was 0.08 more at the time operating, attempting operate actual being control.” if a test taken one and one-half hours after an officer has stopped results in BAC of a the law will presume, may and the presume, officer that the alcohol was 0.08 concentration or more when operating he or she was case, In vehicle. operate. does not contested, When the intended civil is hearing a is scheduled. The issues to be decided at civilsuspension hearing the final 1205(h). are set forth At the final hearing, pertains to this the court must determine whether the 1201, violating believe the 23 V.S.A. whether the
person’s rights adequately explained, were and whether a test was properly higher taken indicated BAC of 0.08 or “at the time of operating, attempting in actual being physical control violation of section 1201.” Id. 1205(h)(1), vehicle in (2), It only after hearing the final suspends commissioner license license ... for of one No. See also operator’s period year.” Sess.),§4. (Adj. 1983, No. 134 *5 BAC was 0.08 person’s that, operation, at the time of
grounds 1205(a). §Id. operation. time of more at the ¶ officer’s affidavit rely can on the the State hearing, 10. At the that the to believe had reasonable the officer prove to influence, explained the officer that under the driving while officer trained by properly taken a that a test person’s rights, rely on the State can then 0.08 or more. The BAC level of indicated a Health, Department works for a chemist who affidavit of regulations Department Health complied with that the test certifying valid indication of accurate and and was an methods breath-testing of the system at the time in the defendant’s the alcohol concentration 0.08 or and there reading a Thus, produces if a test result test. operation, time of back to the relating the test result is no question summary. hearing is indeed suspension Legislature’s from the in this case stems 11. The confusion 1205(a) §in operation” “at the time of of a test result specification (h)(4). above, to be address the elements those sections explained As court and the ultimate hearings final before the at contested proven license, not the initial basis a suspend the commissioner to authority of necessary of a prerequisite The suspend. a notice of intention for stating officer processing an affidavit from the civil notice is that the test and “the test indicated a breath requested that he 1205(b)(5) (emphasis more.” Id. was 0.08 or alcohol concentration added). only to the result necessarily can attest The officer’s affidavit operator. during processing taken generated by the test trial court noted: as the be in- might from which nothing is the statute [t]here enforce- intended to imbue law that the ferred chemists, allowing them expertise officers with the ment their own upon speculation notices issue likely would be ex- result than .08% a DataMaster lower concentration above tó a breath alcohol trapolated reliably Rather, presumably limit at the time of legal straightforward a and streamlined creating the interests of suspen- a notice of Legislature provided proceeding, indicating “[t]he an affidavit supported sion must be date (noting an test the time and officer obtained taken) al- and the test indicated the test was more____” added), (emphasis was 0.08or cohol concentration 1205(c)(5). V.S.A.§ 12. In had no issue a of intent to this officer notice basis alcohol did not defendant’s license because the blood test produce equal result to or than 0.08.2Nor could 1205(n) rely support on the contained in to suspend. notice Legislature, crafting procedure summarily sus- vehicle, license
pend person’s bright motor intended prosecute line to be a result of 0.08. The still criminally State can less, assuming if the test driving drunk there is *6 either a test to of opera- other evidence to relate result back the time tion or to indicate actions and behavior support finding a summary intoxication. But the ability suspen- to commence a license based on an affidavit not solely sion officer’s does exist unless the test is 0.08 more. or ¶ 14. suggests “imposes The dissent that the district court’s an ruling additional for civil element offense suspension purposes is, that a operator test result must show that the had an alcohol Post, concentration 0.08or when the greater test was administered.” ¶ First, (emphasis original). exactly that is what a test result necessary shows. The dissent confuses the elements to support civil suspension above, as delineated subsection (a)'(specifying, as noted license) when the commissioner suspend legal shall with the suffi- ciency of suspend the officer’s of intention notice to and its supporting (b). found subsection These are not same. argues The dissent that the Legislature expected could have trained officer identify grounds” able to “reasonable to believe person was an operating with alcohol concentration over 1205(a). § citing to wrong. This is That clearly requires section a law enforcement officer have to believe that a person 1201(a), was operating violation of which governs both operation with an alcohol driving concentration of 0.08or more or while 1201(a)(1), But, under the influence. V.S.A. this case does not crime, involve a suspension, it involves a which needs as 1205(b)(5). genesis its breath result of 0.08.Id.
¶ 16. The dissent also suggests that the rebuttable presumption 1205(n) in found shows that the Legislature understood that some 2This obtaining is, that an course, officer a test result of less than 0.08 say cannot 1201(a)(2), operating for a violation of under the influence of process operator intoxicating liquor. would have to bear “the State no such test and would be cases there ¶ Post, 40. This is the test result.” relating back burden refused, then the defendant because If is no test
incorrect. there a civil For burden is lessened. The State’s is automatic. or a test result either a refusal there must be proceed BAC That operation. the time of BAC of 0.08 or more at indicating a back through or relation by the rebuttable can be shown 0.08. result of at least there must be a test But first evidence. (a) (h) the ele- address that subsections Understanding and thus place to take summary suspension for a proved to be ments relates merely affidavit that officer’s the difference between explain question ultimate whether showed and the the test result what 1205(c) It requires explanation. further violating was to serve notice of intention authorizes a law enforcement test, “the results of which submits to a on a who 0.08 or more at the alcoholconcentration indicate being in actual attempting operating, time of control of 1205(c)(emphasis 1201.”Id. a vehicle in violation of section added). will blush, to assume the test appears At first this section However, the statu- Again, evidence. cannot. provide relation-back 0.08 conjunction with a test result of tory presumption, 0.08 alcohol concentration was operator’s an inference that an permits or more at the time of summary suspension proce- 18.When the created *7 involvement, court
dure, any a to occur without permitted suspension it hearing. a To requested the contested the issue unless affording it added a section law suspension, create a threshold that, if a result taken the courts a enforcement and of 0.08 or one produced a result operation within two hours of 0.08 operation alcohol concentration at the time of could an presume of 0.08 or more that would more. In this there is no test result statutory had no statutory presumption. The officer permit use the trial court is to initiate a civil case. The authorization affirmed.
Affirmed. face, Dooley, J., dissenting. majority ap- On its the decision statutory scheme as interpretation pears plausible particularly plausible It is to the circumstances of this case. applied bright line standard so that Legislature would have enacted predictable could suspension procedure the license summary fashion. The majority good decision states why reasons the essence, scheme should work it has described. In majority the have, describes the statutory scheme that the could have, perhaps should created. Legislature, We are not the however. As desirable as the statu-
tory be, scheme majority described the may is not the scheme actually enacted. The majority tries to deconstruct fit, not, the statute to make pieces they but do and therefore dissent.
¶ 21. Both majority and I agree that to suspend operator’s license under the statute the State must show that the operator had a BAC of 0.08 or at the time above But majority adds an additional element to the State’s burden of proof defendant’s —that BAC was 0.08 or more at the time the evidentiary test was taken. This additional element is not Further, contained the statutory scheme. the extent that there are scheme, inconsistencies in legislative history unequivocally demonstrates that the provision the majority upon relies in support of its holding was not intended to prevent the State from initiating suspensions in cases where the evidentiary test result indicates a BAC below 0.08 at the time the test was administered. Nor majority’s does the holding further Legisla- policy ture’s of quickly drunk getting roads, drivers off the as the majority suggests; if anything, the holding makes it more difficult for law enforcement officers to accomplishthat goal.
¶ 22. It important to state the facts of this case to get a better understanding of scope of majority’s At holding. 10:38 p.m. evening October a state trooper pulled defendant over for failing to stop completely and signal before turning onto a highway. that, officer’s affidavit indicates upon approaching defendant’s truck, the officer detected an odor of alcohol emanating from the vehicle. The affidavit also indicates that the officer observed that de- fendant watery eyes and that unsteady he was on his feet. After defendant had difficulty executing tests, field sobriety the officer test, administered a roadside alco-sensor which indicated BAC of .093 at later, 11:03p.m. Forty minutes at 11:43p.m., defendant submitted an evidentiary breath sample indicating a BAC of 0.077. The officer issued defendant a notice of intention to his license and wrote “.077”in the form to indicate the evidentiary test result.
¶ 23. At the preliminary hearing, defendant noted that 0.077 *8 figure was inconsistent with of language the notice form. The State responded that it could establish at the final hearing that defendant’s
52 by relating back the operation at the time of
BAC was 0.08 or ruling that suspension, court dismissed the civil The district test result. support insufficient to facially in this case was trooper’s affidavit because it did not state proceeding a civil commencement of obtained, a BAC of 0.08 or more been indicating that a result test 1205(b)(5). court, According to the “the 23 V.S.A. required by as that the plainly contemplates civil statutory scheme for a DataMaster test initiation summary procedures requires .08%, was above operator the conclusion supports majority affirms officer’saffidavit.” The arresting as evidenced 1205(b)(5). language on the ruling, relying also ¶ summary suspen- construction. The statutory 24. This is a case 1989, 1989, 68, virtually No. with all was created see procedure sion 23 piece law. The one additional pieces contained the current 1205(b), 1991, majority the subsection on which the V.S.A. added 1989, As enacted in the statute contained even partially relies. BAC 0.08 indicating hint must a test result produce that the State (then 0.10) at the time the test was administered. To the or above below, in more all references to contrary, as discussed detail at BAC was to be measured were to the time the the time which the physical or ... actual “operating, attempting 1205(a)). 68, 23 V.S.A. As it does (amending control.” No. State to today, the statute contained a allowed the id. (adding relate back a test result to the time See 1205(m)). states, it was intended in majority opinion V.S.A. As the summary procedure get 1989to “a drunk drivers off speedy ¶ Ante, 3; Strong, see State through suspension.” the roads license (1992) (explaining summary 605 A.2d 511-12 Vt. procedure). majority necessarily possibilities 25. The believes one of two about (1) saying anywhere, required 1989law: without so the law original (changed
that the officer obtain a test result of 0.10 BAC now to 0.08 BAC) higher proceed suspension; with with a under 0.10 as the proceed long officer could test result 0.10 at could relate back to show that the had BAC above attempted operation time of or actual control. operation, holds, majority largely cannot tell which of these because positions support it cites numerous subsections that existed the 1989law to its result of 0.08BAC is now position required. — If majority believes the former that a test result of 0.10 judicially legislating BAC was in 1989 it is this result
53 any statutory without in the I believe that the support language. only possibility real is the latter that the 1989 law did not require produce that the officer a test result at or 0.10 BAC. That above requirement had to come from a later Consequently, amendment. whether, in real issue this case is intended 1205(b)(5) § to preclude initiating suspension State from proceedings situations when the indicates a BAC Mountain, See Okemo Inc. v. Town of below maximum. statutory Ludlow, (2000) 1219, 1227 762 (primary objective Vt. A.2d in construing statute to Legislature). My reading effectuate intent of statutory of the legislative history underlying scheme 1205(b)(5) § leads me to the inevitable conclusion did not intend such a result. In my 27. explaining position, first examine the scheme. violation, operative statement of the prosecution both criminal 1201(a)(1):
and civil suspension, § is contained in 23 V.S.A. (a) A person operate, shall not to attempt operate, or be physical actual control of any highway: vehicle on (1) when the person’s alcohol concentration is 0.08 or more subsections,
Nine additional sections or either or directly indirectly by cross-reference, language contain the specifying that the BAC is measured at operation, the time of attempted operation or actual physical purposes control.3 For of this important applications 1202(a)(3) (evidentiary § person See 23 V.SA. test is when officer has grounds person operating, attempting reasonable to believe that operate, was to or in control, 1201); (when physical id. § § actual in violation of officer has reason to 1203® person may § believe preliminary violated screening conduct breath alcohol test); 1205(a) (Commissioner id. § Department suspend of Motor Vehicles must driver’s person license of when stating law enforcement officer submits affidavit that officer had grounds person operating, reasonable to believe that attempting operate, was or in control, physical test, § actual person violation of 1201 and refused to submit to (2) person indicating person’s submitted to test “that the alcohol concentration was 0.08 1205(b)(3) (officer’s id. operati[on]”); more at the time of affidavit is sufficient if it states grounds that officer person had reasonable operating, attempting believe was operate, control, 1201); 1205(c) (officer physical or in actual id. in violation gives suspend notice of intent to person’s when test results indicate alcohol concentration was operating, attempting operate, control); 0.08 or more at time of id. physical or actual 1205(h)(1) (issues suspension hearing at final civil include whether officer had grounds person operating, attempting operate, believe or in actual control, 1201(h)(1); 1205(h)(4) (issues in violation of id. also include whether section, provisions DUI statute are the the civil (a) provides upon §in Specifically,
contained 1205. subsection to believe of an officer that the officer had reasonable operation, of 0.08 at time of had an alcohol concentration must the Commissioner of Motor Vehicles 1205(a). (c) requires license. 23 V.S.A. Subsection operator’s the circumstances notify officer to when 1205(c). (h) (a) Id. Subsection describes the present. described are review, limiting court the issues related to the test result to whether “the indicated that the alcohol concentration was test results 0.08 or more at the time of ... in violation of section 1201.” operating 1205(h)(4). § Id. Here, however, decision, accepted by the district court’s *10 — 1205(b)(5), § was
majority, based another subsection which was 1205(b), § in No. 6.4 added Subsection entitled “Form of affidavit,” in provides, part, officer’s relevant that an officer’s affidavit 1205(a) § in support of a under in shall be a standardized form for use state throughout and shall be sufficient if it contains the following statements:
(5) evidentiary (noting The officer obtained an test the time taken) and date the test was and the test indicated that the person’s alcohol concentration was 0.08 or per- son to submit an evidentiary refused test. parties’ dispute 29. The centers around the meaning 1205(b)(5).
§ effectively plain The district court ruled that the language 1205(b)(5) § imposes an additional element of the offense for civil — is, suspension purposes that a test result must show that the when the test an alcohol concentration of 0.08 or test results show alcohol concentration of or more at 0.08 time of operation, attempted (after 1201); id. § hearing, or actual in violation of control, operation, physical 1205® license shall remain if court finds that officer had reasonable suspended operating, attempting believe that or in actual control, person operate, physical (2) violation of 1201 and refused to submit submitted test test, person indicating “that alcohol concentration was 0.08 or more at time [of] ”); 1205(n) (if id. alcohol concentration was 0.08 or more within two hours of operation] or actual there is rebuttable control, operation, attempted operation, presump- operation). tion that it was above 0.08 at time of 4 1205(b) language relettering When the of current it was added caused of subsequent (1). through subsections subsection above, of a new offense As discussed the addition was administered.5 other statements of the offense many is discordant with the element More driving. importantly, on drunken subchapter elements 1205(h), proceed- in the court which limits the issues conflict with 1205(b)(5) construction, § adds an court’s Under the district ing. 1205(h) yet prevents must prove, element to the case the State among permissible because it is not being that element from shown suspension hearing. at a final civil issues that can be raised inconsis resolving rules for internal recognize 30.1 that we have statutes, an first such rule is that we must deal with tencies but the sections avoid apparent inconsistency by harmonizing 223, 235, 789 Rutland, 173 City Vt. inconsistency. Gallipo See with a close harmonizing process begins A.2d This meaning plain examination of the district court’s conclusion 1205(b)(5) I find the is to add an additional element to the offense. First, unpersuasive respects. district court’s conclusion two affidavit, only speci subsection deals with the content of the officer’s form, stating that it must be on a standard that “it shall be fying 1205(b). sufficient” if it contains certain “statements.” V.S.A. if provide subsection does not that the affidavit is insufficient it does Indeed, not contain those statements. content of the (a), (b), specified affidavit is subsection not subsection and subsection (a) a minimum alcohol 0.08 requires concentration of at the time of operation, testing. not at the time of The district court held that “the Legislature provided supported by that a notice of must be an affidavit indicating ‘[t]he officer obtained taken) (noting the time and date the and the test indicated test was mare____’ (empha- alcohol concentration was 0.08 or *11 1205(c)(5).”6 added), above, § 23 sis V.S.A. As discussed the “must be Rather, supported” language appear does not the statute. the statute what content of describes the affidavit is “sufficient” without specifying required. what content is 5 Although ruling not the district court’s would not criminal issue, directly prevent ruling of the because the is limited to the subsection
prosecution applicable only 1205(b)(5). § to civil 23 The difference in result is anomalous and V.S.A suspension, justified proceeding cannot be the nature of the civil because by proceeding means that the civil of an additional not element, requires proof proceeding. in the criminal required 6 1205(c)(5). § The district court cited the section as 23 A. It is clear from V.S erroneously 1205(b)(5). § the context that it meant
56 1205(b)(5) Second, that explicitly the words of do state required testing. language BAC of 0.08 is at the time of The is-silent on While I that in isolation timing agree the the BAC measurement. the logical interpretation wording more is that the BAC indicated result alone must be the minimum the test above the failure to explicitly ambiguity, especially state that introduces an because all of statutory explicitly point the other sections the scheme do state the time for which the alcohol concentration must be found. 1205(b)(5) possible it is used the words of longer shorthand for the statement the BAC determination is made at the time of 1205(b)(5) reasons, 32. For these two conclude that does not a plain meaning, ambiguous. -ambiguity
have and is While the can be alone, resolved from the we have in this case language another — statutory legislative history construction tool to harmonize the Communications, statutes. See Green Power Corp. Sprint Mtn. 687, Vt. 779 A.2d (recognizing that when language ambiguous, “legislative history may used to determine Here, of the Legislature”). legislative history the intent the greatly undercuts district majority’s court’s and the interpretation Indeed, legislative history plain statute. makes it that the Legisla- ture did not intend to add as an opera- element of the offense that the tor must have an alcohol concentration.above 0.08 at the time the test was administered.
¶ 33. The 1989 had no law subsection on the form of the officer’s 1205(a) affidavit; requirements generally were set out without statewide, 1991, concept of a form. In standardized (b) added 55, subsection on the form of the officer’s affidavit. No. 1205(b), amendments). 23 V.S.A. (adding among other 1205(b) part addition of was not of the original bill introduced in 1991. Rather, the language by Gary was drafted Kessler of the State’s Attorneys and Sheriffs Department and inserted into bill by Judiciary Senate Committee. At a March 1991 hearing before the Committee, Kessler testified that he provision drafted the to respond to police complaints about the amount paperwork involved in processing suspensions. He explained provision intended to standardize and streamline police paperwork by shorten- ing length of the required affidavit. He emphasized he arrived at the criteria set provision by forth incorporating the issues 1205(h). allowed at the final hearing under When members of the Committee asked if Kessler then Defender General Bud Allen had *12 room to find Allen Kessler left the committee approved provision, language as that Allen was content -with reported and later back 1205(h). contained in preserved the issues long provision as the new ¶ changed not and later by 34. The drafted Kessler was provision 1205(b). whether the At no time did the Committee discuss became add an additional element to the State’s burden provision new would suspension, certainly to initiate a civil proof power or the officer’s Rather, apparent hint was intended. there is no that such result burden, not to lighten amendment was to the State’s intent behind the case, any nothing holds. In the Commit- majority increase it as the that it “intended the line to be a test suggests bright tee’s discussion ¶ Ante, Indeed, of the Committee’s result of 0.08.” the content contrary. discussion is to the legislative history 35.1 conclude from the that the district court’s 1205(b)(5) clearly §of is incorrect. There was no intent
interpretation suspension proceeding to be considered in the civil expand issues — 1205(h) had a BAC of “0.08or specified by whether the BAC at the time of admini- operation].” more at the time The not an issue court in a suspension proceeding stration is before the 1205(h).Rather, language it is that the drafter likely under chose 1205(b)(5) requirement as. a shorthand for the all the other 1205(h)(4). sections, Thus, that of specifically 1205(b)(5) to the BAC at the time of must be construed refer majority’s 36.1 cannot with the distinction between elements agree hearing the State must at the civil and those that prove prepares must be when the law enforcement present operator begins affidavit. The statute sets out one integrated proceeding by with the officer’s and concludes with review the district if requested.7 majority court The distinction advanced would make sense if the State could initiate a civil suspension proceeding affidavit, affidavit, despite prove without an a flawed the final 1205(h). hearing specified Obviously, issues as 23 Y.S.A. majority process does believe such bifurcation is it would affirm the in this possible; process termination case with hearing came at the there issue first but is no up preliminary require ment that it raised then. we have had where the numerous Indeed, eases, appeals challenges hearing. majority, a test result at the final I assume the its despite hearing would the district court to dismiss the civil if the distinction, require hearing. issue of the test result first arose at the final opportunity no for the State to hearing. reach the final majority advocating a distinction without irrespective a difference arises, of how the issue the majority would hold that no suspension *13 could ever occur without a showing that the had a BAC above administered, 0.08 at obviously the time the test was an element of the 1205(h). beyond offense in specified those in majority’s The real conflict attempt parse through statutory language explain inconsistency with its construction comes 1205(c). when it authorizes, reaches The only subsection not but requires, the officer to submit a notice of to an operator whose test shows a BAC of 0.08 or above at time of The language reads: “On vehicles, behalf the commissioner of motor law enforcement officer ... directing administration of an eviden- tiary test shall serve notice of intention to on a suspend... person who submits to a test the results of which indicate that the alcohol concentration was 0.08 or more at the time of operating, attempting to operate or in being actual control of a vehicle violation of 1205(c). § 1201 of this title.” Id. If the majority’s distinction were correct, and Legislature require intended to a test result with a above, 0.08 BAC or it Instead, would have said so in this subsection. just sections, other specifies that the time for the measurement of the BAC is “the of operating, time attempting to being in control,” id., actual physical says nothing requirement about a that there be a test result above 0.08 BAC. The majority suggests that the legislative language can explained by presence of the eviden- 1205(n) tiary that relates back a test result of 0.08 greater, BAC or a presumption that existed in 1989 before the major- ity’s new requirement. It is far easier and better explained by a plain meaning interpretation that does import requirements nonexistent into language.
¶ 38. Based on the facts described in dissent, the outset of this this case statute; followedthe command of the he could not do otherwise. majority The provides no answer to the position conflicted officer, which it has placed the ignore other than to the language of the statute duty and his under it.
¶ 39. Defendant and the district court have raised additional reasons for requiring a test result over they but persuasive. are not trial court reasoned that the Legislature did not intend “to imbue law enforcement officers with chemists, the expertise allowing them to issue civil suspension upon notices their own speculation DataMaster result than lower .08% likely would be extrapolated limit at the legal concentration above reliably to a breath alcohol is that “the I that the standard note operation.” time believe” officer had know it with and not that the officer with a BAC over 0.08 operating 1205(a). could have I 23 V.S.A. believe certainty. without a trained officer to meet standard expected that, agree In that those saying instances. above 0.08 some rare, those rare relatively but this case demonstrates instances will be (1) intoxication, physical signs the officer had circumstances because (2) tests; dexterity inability complete field including defendant’s limit; legal above the roadside alco-sensor test result contemporaneous (3) than an hour after test result submitted more limit; and information legal 0.003 under the operation yet only immediately drinking history before person’s eating about the stop. that the rebuttable Finally, agree I do not with defendant 1205(n) forth in demonstrates
presumption set
*14
to limit civil
to instances which the test result
suspensions
intended
showing
That
that a
provides
was 0.08 or more.
statute
operation
0.08 or
within two hours after
creates
higher
BAC was
operation
BAC at time of
presumption
rebuttable
the burden of
purpose
place
above 0.08. The
of the statute is
—
best able to meet it
producing
party
relation-back evidence
Pluta,