Defendant was charged with operating a motor vehicle while his blood alcohol content was .10 per cent or more, 23 V.S.A. § 1201(a) (1), and with operating a motor vehicle while under the influence of intoxicating liquor (DUI), 23 V.S.A. § 1201(a) (2). He was convicted by jury of violating the .10 per cent blood alcohol provision. We affirm that conviction.
The facts indicate that defendant had been drinking during the afternoon of November 1, 1981. Later that dаy, while driving a large dump truck on Vermont Route 105 in Rich-ford, he nearly collided head-on with a border patrol agent. The agent observed the dеfendant’s truck swerving over the centerline and, at times, traveling in the left lane of the road. Eventually defendant was stopped by the border рatrol agent, who was then joined at the scene by a Vermont state trooper. From their observations both officers were of the opinion that defendant was operating the truck while under the influence of intoxicating liquor. The trooper also observed fifteen emрty beer bottles on the floor of defendant’s truck.
Defendant submitted to a breath test which was analyzed by a State chemist. At trial, based on the test results and *633 defendant’s own testimony about his drinking pattern that day, the chemist estimated defendant’s blood alcohol level at .135 per cent аt the time of operation. In rebuttal the defendant presented evidence of a reenactment of his November 1, 1981, drinking pattern which hаd been conducted in a doctor’s office. Blood tests were taken by the doctor, who estimated defendant’s blood alcohol level at the time of operation to be between .04 and .034 per cent.
On appeal, defendant argues that (1) the trial court erred in rejecting his requested instruction concerning a presumption under 23 V.S.A. § 1204(a) (1) j 1 and (2) he was denied due process of law when the State charged thе defendant with both offenses and presented evidence to the jury on both the .10 per cent blood alcohol charge and the driving under the influence charge.
In 1981, prior to the alleged offenses here, the legislature amended 23 V.S.A. § 1201 (a) by substituting the word “convicted” for “charged” in subseсtion (a)(4).
2
Whereas the statute prior to amendment prohibited the State from
charging
a defendant with both a .10 per cent blood alcohol сount and a DUI count, the amended statute prohibited only
convictions
of both. Thus, the legislative ban on charging both was lifted, and 23 V.S.A. § 1201 (a) (1) and 23 V.S.A. § 1201(a) (2) charges may now bе brought against a defendant arising from the same incident. This was recognized in
State
v.
Rollins,
Where, as in this case, the State proceeds to trial charging both violations, our warning in Rollins has special significance:
[Ejvidence concerning the symptoms of intoxication must be treated with care in a prosecution for driving with .10% or more alcohol in the blood. Prejudice to the defendant would result if the jury was unclear about the offense charged, and confused the .10% offense with driving under the influence.
Id.
at 110,
Under the аmended 23 V.S.A. § 1201 (a) (4) this danger still exists, but this does not create a due process of law violation as urged by defendant. The Court in
Rollins
identified how potentiаl prejudice to a defendant may be avoided: “The trial court’s scrupulous instruction on the elements of the offense safeguarded this dеfendant against any such prejudice in the trial below.”
The trial judge instructed the jury that 23 V.S.A. § 1201 may be violated in either of two ways, and clearly explained the differences between the two charges brought by the State. Next, the court delineated the essential elements of each charge. We find these instructions to be clear and aсcurate; the jury could easily have distinguished one offense from the other. Furthermore, the trial judge instructed the jury that,
[i]f . . . you decide that the defеndant has violated . . . one of the sections which I read to you earlier, you need not consider whether he violated the other section. . . . If your verdict is guilty, it may be either of operating contrary to one section or another, but not both.
These excerpts, and the instructiоns as a whole, take heed of our warning in
Rollins, supra,
Since the defendant was convicted of the .10 per cent blood alcohol offense, we need not reach his claim of error concerning the presumption under 23 V.S.A. § 1204(a) (1). It is manifest that the jury determined that defendant had .10 per cent or more blood аlcohol at the time of operation since he was convicted under 23 V.S.A. § 1201(a) (1). Therefore, the jury did not believe defendant’s demonstration which indicated a blood alcohol level below .05 per cent. Since the jury did not believe the basic fact under 23 V.S.A. § 1204 (a) (1), any instruction on thе presumed fact is of no consequence. The jury apparently believed the State’s chemist and the results of the breath test. The evidence amply supports the verdict.
Affirmed.
Notes
(1) If there was at that time 0.05 per cent or less by weight of alcohol in the person’s blood or breath, it shall be presumed that the person was not under the influence of intoxicating liquor.
(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on the highway while:
(1) there is .10 per cent or more by weight of alcohоl in his blood, as shown by analysis of his breath or blood; or
(2) under the influence of intoxicating liquor; or
(4) A person may not be convicted of more than one offense under this section arising out of the same incident.
(1981, No. 103, § 2.)