State v. Burnett (2012-255 & 2012-296)
[Filed 27-Nov-2013]
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 by email at: JUD.Reporter@state.vt.us or by mail at: 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.
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Nos. 2012-255 & 2012-296 |
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State of Vermont |
Supreme Court |
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On Appeal from |
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v. |
Superior Court, Chittenden Unit, |
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Criminal Division |
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Jason Burnett |
February Term, 2013 |
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Alison S. Arms, J. (2012-255) Brian J. Grearson, J. (2012-296) |
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Thomas J. Donovan, Jr., Chittenden County State’s Attorney, Andrew R. Strauss,
Deputy State’s Attorney, Burlington, and Gregory S. Nagurney, Deputy State’s Attorney,
Montpelier, for Plaintiff-Appellee.
Richard R. Goldsborough and Gregory J. Glennon of Kirkpatrick & Goldsborough, PLLC,
South Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. DOOLEY, J. Defendant appeals the civil suspension of his driver’s license and the admission of the breath-test results in his criminal prosecution for driving under the influence of intoxicating liquor (DUI). Defendant contends that because the test results were obtained after the testing machine registered a “fatal error,” the breath-test analysis did not meet the requisite performance standards, and thus the necessary foundation for admissibility was not laid. We affirm the court’s decision denying suppression in the criminal case, and reverse and remand the civil suspension.
¶ 2. On December 4, 2011, at around 3 a.m., an officer of the Burlington Police Department stopped defendant after observing him speeding and driving erratically. Based on the officer’s observations, he commenced a DUI investigation. After the officer had defendant perform standard field-sobriety tests, he arrested defendant and transported him to the police station for DUI processing. At the stationhouse, defendant agreed to provide an evidentiary breath sample. The officer used a DataMaster infrared breath-testing machine to conduct the breath analysis. During the first attempt, the machine produced an error message of “standard out of range.” The officer restarted the machine and attempted again to obtain a test result. This time, the machine produced a result of .229 without an error message.
¶ 3. Defendant requested a second test result. The officer attempted another test but received another “standard out of range” error message. Again, the officer restarted the machine and obtained a result of .260 without indication of error.
¶ 4. Defendant was charged with DUI subject to criminal proceedings pursuant to 23 V.S.A. § 1201(a)(2) and a civil license suspension under 23 V.S.A. § 1205. Defendant filed a motion to suppress and dismiss in both cases, claiming that after receiving a standard-out-of-range error, the officer’s training instructed him to use a different machine. Because the officer failed to follow the correct procedure, defendant argued that the result was not reliable, citing 23 V.S.A. § 1205(h). Defendant filed a supplemental motion to suppress and dismiss arguing that the discrepancy between the two tests negated their reliability and made them inadmissible. In support, defendant submitted a letter and affidavit from an expert.
¶ 5. On April 11, 2012, the court held a hearing on defendant’s motions. The day before, the State had filed a motion to allow its chemist to testify by telephone on the basis that the witness would be inconvenienced by the travel. Defendant’s attorney objected. The trial court denied the State’s motion because the State provided defendant insufficient notice of its request, and this prevented defendant from properly preparing for or conducting an effective cross-examination in both the civil and criminal cases. The court then indicated its intent to dismiss the criminal case based on the State’s lack of an expert. Pursuant to the State’s request, the court agreed to delay entering dismissal for ten days.
¶ 6. The court proceeded with the suppression hearing in the civil suspension proceeding. Without objection, the court admitted the chemist’s affidavit, the DUI processing form, the officer’s affidavit and the DataMaster tickets.
¶ 7. The Burlington police officer testified for the State. He described administering the breath-alcohol test to defendant. He explained that after he received the first error message, he understood from his training that he was supposed to transport defendant to a different location and use a different machine, but he decided not to proceed in this fashion. The officer testified that based on his experience, the DataMaster machine sometimes produces an error message when there is alcohol emitting from the defendant’s person in an enclosed area. He therefore went ahead and restarted the machine and conducted a test. When describing his attempt to obtain a second test result, he explained that he received a second standard-out-of-range message before restarting the machine and obtaining a usable result. On cross-examination, he agreed that the standard-out-of-range message was a “fatal error.” He also agreed that, according to his training, he was supposed to proceed to a different machine after encountering such an error. Defendant introduced the section of the manual produced by the Vermont Criminal Justice Training Council that catalogued this message as a fatal error.
¶ 8. Defendant presented expert testimony from a forensic consultant, who formerly worked as a state employee. The witness explained that she had reviewed the breath-test memory reports and status record summaries for the instrument used on defendant, as well as maintenance records from the Department of Health. She opined that it was not a “good choice” for the officer to proceed with using the machine after it produced the standard-out-of-range message because the message was an indication that the simulator vapor was not reading within the required five-percent accuracy. She further testified that the particular machine’s reliability was suspect because the breath test summaries showed a history of errors, and because apparently the machine failed its accuracy testing shortly after it was used on defendant and was sent back to the manufacturer. The witness also questioned the reliability of defendant’s tests because of the discrepancy between the results. She opined that the disparity between the tests was greater than is typically seen. On cross-examination, she conceded that a standard-out-of-range message does not always indicate that a test result is unreliable. She maintained, however, that given the discrepancy between the results, and the machine’s history of problems, she believed the tests were not reliable.
¶ 9. The court took the civil suspension matter under advisement. The court also informed the parties that it would allow the State to file a supplemental motion, and would wait ten days before dismissing the criminal proceeding.
¶ 10.
The State submitted a post-hearing motion to reconsider the dismissal of
the criminal case. The State argued that under State v. Rolfe, 166
Vt. 1,
¶ 11. In response, defendant claimed that he was indeed attacking the admissibility of the test in the criminal proceeding. He alleged that because the officer did not follow the proper procedure following the error message, the DataMaster failed to meet the applicable performance standards, and the results were inadmissible.
¶ 12. The court issued a written order on July 2, 2012. As to the civil suspension, the court found that the State’s expert’s affidavit provided a sufficient basis to establish that the test in this case was performed by an instrument that meets the standards of the Department of Health rules and that the instrument met those standards while analyzing the sample in this case. The court found that although the machine returned a standard-out-of-range message, it subsequently returned a breath-alcohol reading, which indicated that the machine was working at the time of the test. The court concluded that the results were not invalid simply because the officer did not follow directions from the training manual. Rather, he elected to restart the machine based on other training and experience. The court explained that the officer’s failure to follow the instructions in the training manual did not warrant exclusion of the test result because deficiencies in the procedure were different from evidence refuting the reliability of the instrument. The court emphasized that even defendant’s expert conceded that the error message did not necessarily indicate that the results taken before or after the message were invalid. Therefore, the court concluded that defendant had failed to rebut the presumption in § 1205(h), and entered judgment for the State.
¶ 13. As to the criminal case, the court denied the motion to suppress, concluding that defendant’s challenge went to the weight of the evidence, not admissibility. The court also concluded that there were no grounds to dismiss the criminal charge because the State had sufficient evidence of impairment other than the test to demonstrate a prima facie case. The court denied defendant’s motion to reconsider its decision. Defendant then entered a conditional guilty plea in the criminal case and appealed both judgments.
¶ 14.
We begin with the criminal proceeding. Defendant was charged with
operating a vehicle under the influence of intoxicating liquor. 23 V.S.A.
§ 1201(a)(2). Defendant filed a motion to suppress the results of his
evidentiary breath test, which the court ultimately denied. On appeal
from denial of a motion to suppress, we give deference to the court’s factual
findings and review the legal questions de novo. State v. Fletcher,
¶ 15.
Defendant’s motion to suppress was based on a challenge to the
admissibility of the breath-test results. The relevant statute sets out
the foundation required to admit a breath test: “The analysis performed by the
state shall be considered valid when performed according to a method or methods
selected by the department of health.” 23 V.S.A. § 1203(d). We have
held that the sentence should be read with “the term ‘admissible’ rather than
‘valid.’ ” Rolfe,
¶ 16. Defendant argues that the State offered insufficient evidence to demonstrate the necessary foundation facts. Initially, the court agreed that without expert testimony, the State lacked a sufficient basis to demonstrate the foundation facts. The court reconsidered its decision, however, and held that because admissibility is a determination for the court not subject to the rules of evidence, V.R.E. 104(a), the court could consider the state chemist’s affidavit in assessing admissibility. On appeal, defendant does not challenge the court’s ability to consider the affidavit in assessing admissibility, but instead argues that the affidavit alone is insufficient because defendant rebutted it with testimony from his expert.
¶ 17.
The threshold for admissibility is set by § 1203(d). State v.
McQuillan,
As long as the State demonstrates that the analysis of the challenged sample was performed by an instrument that meets the [Health] Department’s performance standards, the defendant may not otherwise challenge the admissibility of the test result; rather, the defendant can only contest the foundation facts or urge the factfinder to give little or no weight to the test.
Id. Here, the State met those requirements. The state chemist averred that the DataMaster machine used on defendant met the performance standards established by the Department of Health. The affidavit further stated: “The reporting of an alcohol concentration of a person’s breath by the DataMaster is evidence that the instrument had successfully met all internal and external quality control reviews and had been operating properly at the time the breath sample was analyzed.” In other words, the fact that the officer was able to obtain a test result indicates that the machine was operating properly at the time of the test.[2] Therefore, the chemist’s affidavit was sufficient to meet the standard for admissibility of the breath-test result.
¶ 18. Defendant raises two issues he claims negate the admissibility of the tests. We consider each in turn. First, defendant argues that the officer’s failure to follow the procedures set forth in the training manual after receiving the standard-out-of-range message renders the test result inadmissible. In support of this argument, defendant’s expert testified that the officer did not administer the tests in accordance with the officer’s training. The officer agreed that according to his training, when he received the error message, he was supposed to turn off the DataMaster machine and use a different one. This testimony is supported by the admitted portion of the manual, which instructs that an officer “should consider [certain messages, including the ‘standard out of range’] ‘fatal errors’ and proceed to a different DataMaster.” Although we agree that the officer did not follow his training and the procedures set forth in the manual, we conclude that this failure implicates the reliability of the tests and not their admissibility.
¶ 19.
As explained above, the admissibility standard is met when the test is
performed according to standards set forth by the Department of Health.
None of those standards dictate how the officer is to employ the
DataMaster. The statute’s directive to the Department of Health is to set
performance standards, not the manner of collection. McQuillan,
¶ 20.
This distinction is confirmed by the testimony of defendant’s
expert. As to the significance of following the correct procedure,
defendant’s expert offered that continuing to use the DataMaster after
receiving the error implicated the reliability of the results. She did
not opine that the DataMaster was incapable of meeting performance standards
after returning an error message, or that the error message indicated some
inherent nonfunctioning of the particular machine. The expert also did
not rebut the state chemist’s statement that a machine’s reporting of a
breath-alcohol concentration indicates that all required internal and external
quality controls have been met. See Vezina,
¶ 21. Defendant’s second attempt to undercut the foundation facts for admissibility is based on the discrepancy between the two results. Defendant’s expert testified that there was a “large difference” between the two results and this raised a concern. Again, we conclude that the discrepancy between the two test results is insufficient to undermine the foundation facts necessary for admissibility. There is no requirement in the Department of Health rules that the two tests be within a certain percentage of one another. Further, the expert did not define how much of a discrepancy is too much or opine that the discrepancy indicated the machine did not meet Department of Health performance standards. The crux of her testimony was that she had concerns about whether the instrument was working properly. While this evidence is relevant to the reliability of the machine and whether the test results should be given weight, it does not undercut the fact that the machine met the performance standards necessary for admissibility of test results.[5] Therefore, we conclude that the test results were admissible and affirm the court’s denial of defendant’s motion to suppress in the criminal proceeding.
¶ 22.
Next, we turn to the civil suspension adjudication. Civil
suspension is a summary proceeding “designed to serve the remedial purpose of
protecting public safety by quickly removing potentially dangerous drivers from
the roads through purely administrative means.” State v. Anderson,
¶ 23.
To achieve the goal of having “a speedy and summary procedure to get
drunk drivers off the roads” the statute employs the use of presumptions.
Anderson,
¶ 24. As set forth above, the State satisfied the § 1203(d) test regarding the admissibility of the evidence based on the affidavit from the state chemist. Therefore, the State had the benefit of the §1205(h)(1)(D) presumption regarding the validity and reliability of the test results.
¶ 25. The question is therefore whether defendant’s evidence was sufficient to rebut the statutory presumption. See V.R.E. 301 (explaining effect of statutory presumptions). The trial court concluded that defendant’s evidence was insufficient because it was theoretical and not specific to defendant.
¶ 26.
To rebut the presumption, defendant was required to “produce evidence
fairly and reasonably tending to show that the real fact is not as
presumed.” State v. Giard,
¶ 27.
Our conclusion is consistent with our recent decision in State v.
Spooner,
¶ 28. Thus, Spooner confirmed that an operator’s failure to abandon a machine that returned a standard-out-of-range message may undercut the reliability of any test result obtained thereafter, but does not affect its admissibility. It further confirmed that if a defendant produces evidence that a sample was collected in a manner inconsistent with an officer’s training, this is sufficient to rebut the presumption of reliability in the a civil suspension proceeding. Id. ¶ 13. Because defendant introduced such evidence in this case, as in Spooner, he rebutted the statutory presumption in § 1205.
¶ 29.
Once defendant rebutted the presumption, the State retained the burden
of persuasion to demonstrate that the tests were indeed reliable. Giard,
¶ 30.
“Whether a test is reliable or accurate is a factual finding.” Spooner,
¶ 31.
Defendant’s final argument with respect to the civil suspension
proceeding relates to the reliability of his second test. Under the
statute, a defendant is entitled to request a second test. 23 V.S.A.
§ 1202(d)(5). Assuming that the first test is deemed reliable,
defendant argues that he was denied a reliable second test. This argument
relates solely to the civil suspension proceeding because a valid second test
is not an element of criminal DUI charge. See Spooner,
The civil suspension is reversed and remanded. The order denying the motion to suppress in the criminal proceeding is affirmed.
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FOR THE COURT:
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Associate Justice |
¶ 32. SKOGLUND, J., dissenting. Simply put, the State failed to demonstrate that the DataMaster used on defendant’s breath sample was operating according to the standards set by the Department of Health at the time of the test. Before returning any results, the machine produced a standard-out-of-range error, indicating that it could not properly analyze the breath sample to the degree of accuracy required. The machine was not working. This “fatal error,” as it is described in the Vermont Criminal Justice Training Council’s manual on Infrared Breath Testing Device, could not be remedied by simply turning the machine off and on again. Because of this error, the necessary foundation for admissibility of a test result was not laid. Accordingly, I would reverse the civil suspension adjudication and the denial of the motion to suppress in the criminal case.
¶ 33.
Under State v. Rolfe,
¶ 34. Contrary to the State’s argument and the majority’s conclusion, the state chemist’s boilerplate affidavit fails to provide the necessary foundational facts. The chemist stated that a DataMaster machine was an approved method of breath testing, was a reliable instrument for measuring breath-alcohol content, and met its internal and external quality controls if an alcohol concentration was reported.
¶ 35.
Although the affidavit is sufficient to show that the DataMaster
instrument, as a device to discern what percentage of alcohol is in a specific
breath sample, meets the Health Department’s standards, it is insufficient to
establish that the instrument employed in this case met those standards at the
time of the test. See id. at 13,
¶ 36.
Moreover, the State offered no testimony to rebut the defense expert’s
opinion that it was improper for Officer Mellis to proceed with using the
machine after it produced the standard-out-of-range message. She
explained that the message was an indication that the “simulator
vapor . . . is not reading within the five percent accuracy
required.” This violates a performance standard set by the Department of
Health. Breath and Blood Analysis Rule § (C)(I)(2), 4 Code of Vt. Rules
13 140 003 (2012). The State produced no evidence to counter defendant’s
expert’s testimony that the error message meant the machine was not meeting its
internal quality controls. Because the machine did not function in
accordance with the Department of Health performance standards, the State
failed to establish that the necessary admissibility requirements were
met. See Kennedy v. Dir. of Rev.,
¶ 37.
The officer’s testimony that, in his experience, a machine may produce
this error message when there is alcohol emitting from a subject in an enclosed
space is insufficient to rebut defendant’s expert’s testimony. This Court
has emphasized in the past that instrument- performance standards exist in
order to make it clear whether a machine is operating properly by having “the
machine itself [] find and indicate errors, obviating the need to prevent
errors by precisely regulating the breath-testing procedure.” Rolfe,
¶ 38. It bears repeating that Officer Mellis agreed that the standard-out-of-range message he received was a “fatal error.” He understood from his training that he was supposed to transport defendant to a different location and use a different machine, but instead chose to proceed, turning the machine off and on again—the equivalent, I suppose, of kicking the vending machine to get what you paid for when your candy is stuck. Because the DataMaster is designed to identify internal abnormalities and alert the user that there is an error in its calibration abilities, turning the machine on and off until you get a result hardly seems appropriate.
¶ 39.
The majority’s reliance on cases rejecting challenges to admissibility
based on noncompliance with procedures in the training manual are not relevant
to this case. See ante, ¶¶ 18-19. Although defendant’s
argument is presented as one involving the officer’s failure to comply with his
training, it is not so much the officer’s failure to follow the procedures that
makes the results inadmissible here, but the machine’s self-reported internal
error. I agree that the manual itself is not part of the Health
Department’s performance standards, and that an officer’s failure to follow
procedures outlined in the training manual does not affect the foundation
requirements for admissibility. See State v. Massey,
¶ 40.
Finally, the fact that the machine produced a result subsequent to the
fatal error message does not validate the test result. In State v.
Vezina,
¶ 41.
The majority’s attempt to distinguish our decision in State v.
Spooner is unpersuasive. In Spooner, the State sought to rely
on a successful test conducted after a fatal- error message. The trial
court “determined that the State did not comply with its own testing procedures
and that this failure to adhere to the protocol deprived defendant of a valid
and reliable second test as required by § 1202.”
¶ 42. Because the State failed to meet the § 1203(d) test regarding the admissibility of the evidence based on the affidavit from the state chemist, the test results were not admissible in the civil or criminal proceeding.
¶ 43. I am authorized to state that Justice Robinson joins this dissent.
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FOR THE COURT:
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Associate Justice |
[1] At the time this case was filed, § 1205 delegated rule-making authority to the Department of Health. Due to a legislative change, the Department of Public Safety is now responsible for adopting the relevant rules. See 2011, No. 56, § 16 (eff. March 1, 2012).
[2]
This point is the center of the disagreement between this opinion and the
dissent. The dissent says summarily “The machine was not working.” Post,
¶ 32. To the contrary, the State’s expert affidavit states that the
machine was working properly if it reports an alcohol concentration, which it
twice did here. This is the conclusion of State v. Vezina, 2004 VT
62, ¶ 5,
[3] Following a legislative change, the Department of Public Safety is now delegated with the rule-making authority over breath-testing devices. We note that the Department of Public Safety’s rules do incorporate the manual, instructing: “The operator will follow procedures incorporated in the Vermont Criminal Justice Training Council Student Manuals in effect at the time of testing and approved by the Commissioner of Public Safety.” See Vt. Dep’t of Public Safety, Breath and Blood Alcohol Analysis Rule (C)(II), Code of Vt. Rules 28 060 002 (2013). We make no judgment on the significance of this regulatory change.
[4]
Defendant cites cases from Missouri to support his contention that an officer’s
failure to turn off a breath-testing machine after an error message makes the
result inadmissible. See, e.g., Kennedy v. Dir. of Rev., 73 S.W.3d
85, 87 (Mo. Ct. App. 2002) (concluding that there were sufficient facts to
support court’s finding that there was an insufficient foundation for breath
test results after officer used machine that had returned an error message), overruled
on other grounds by Verdoorn v. Dir. of Rev.,
[5]
We have held that a disparity in two test results does not make the results
inadmissible in at least two nonprecedential three-justice memorandum
decisions. See State v. Howe, Nos. 2006-429, 2006-432, 2007 WL
5313288, at *3 (Vt. Mar. 28, 2007) (unpub. mem.) (holding that Department of
Health rules do not require agreement between two successive results); State
v. Springer, Nos. 2006-433, 2006-434,