On Appeal from Superior Court, Orange Unit, Criminal Division May Term, 2012 Harold E. Eaton, Jr., J.
The opinion of the court was delivered by: Reiber, C.J.
State v. Spooner (2011-312)
PRESENT: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Zonay, Supr. J.,
¶ 1. The State of Vermont appeals from the trial court's dismissal of a civil driver's license suspension complaint. The trial court found that the statutory requirements for civil suspension had not been met. We affirm.
¶ 2. The following facts are uncontested. On April 30, 2011, at 11:51 p.m., defendant was stopped in Newbury by Vermont State Trooper David Shaffer after ignoring a "Road Closed--High Water" sign and crossing a flooded roadway. Trooper Shaffer, smelling alcohol, asked defendant to perform a preliminary breath test and field sobriety tests. Based on the results of those preliminary tests, defendant was taken to the Bradford Police Department, where Trooper Shaffer performed a series of breath tests with the station's DataMaster DMT blood-alcohol-content-measurement device.*fn1
¶ 3. At 1:51 a.m., Trooper Shaffer obtained a reading of .101 from the first DMT test. Defendant requested a second test. At 1:52 a.m., the DMT device returned a reading of "standard out of range." Trooper Shaffer attempted to perform a third test, but received a report of "invalid sample" at 1:59 a.m. On the fourth try, at 2:01 a.m., the DMT reported a blood-alcohol content of .109. Defendant was informed of his right to obtain an independent test.
¶ 4. Defendant was processed for driving while under the influence, and the State sought civil suspension of defendant's license. On August 3, 2011, a final civil suspension hearing was held pursuant to 23 V.S.A. § 1205(h). At the hearing, defendant argued primarily that the statutory requirements for civil suspension had not been met. In particular, defendant raised the following issues: (1) whether valid and reliable testing methods were used and whether the results of the tests were accurate and accurately evaluated, and (2) whether the requirements of 23 V.S.A. § 1202 were satisfied. Most specifically, defendant contended that he did not receive the statutorily permitted second test under § 1202(d)(5), which allows a motorist who submits to an evidentiary breath test to "elect to have a second infrared test administered immediately after receiving the results of the first test." Defendant argued that the second test was invalid because it was not taken in compliance with the testing procedure adopted by the Vermont Criminal Justice Training Council and the Vermont Department of Health in the DataMaster DMT Addendum to its breath testing manual.
¶ 5. The manual, which dictates the proper operating procedures for DMT testing, specifies that DMT devices can experience fatal and nonfatal errors. Nonfatal errors are those that "may be remedied by the test operator," and once "the error has been cleared," the testing procedure can be resumed. When a fatal error occurs, however, the manual provides that the DMT should be designated "out of service" and a detailed message should be left for the DMT supervisor. The manual states that a report of "standard out of range" is a fatal error. After receiving a fatal error, the manual instructs that the officer should "proceed to a different DataMaster," and, "[i]f another DataMaster is not reasonably available, blood may be drawn." The manual's stated objective is for police officers to operate the DMT machine "in accordance with the specified procedure incorporated in this training."
¶ 6. At the final merits hearing, the State presented testimony from its forensic chemist, Amanda Bolduc. Ms. Bolduc testified that she believed that the DMT device was "functioning properly at the time of the test[s]" and that there was no reason to doubt the reliability of the result obtained from the successive test effort that yielded the .109 BAC. Although the manual indicates that a machine should be taken out of service following the receipt of a fatal error, such as a "standard out of range" reading, Ms. Bolduc opined that if an officer tries the device again and it gives a valid reading, "it's fine." She noted that the Department of Health's manual uses the word "should" not "must" when describing the procedures to follow after obtaining a "standard out of range" reading. During cross-examination of Ms. Bolduc, defendant sought to cast doubt on the reliability of the majority of DMT machines and the validity of their test results, questioning Ms. Bolduc about her own expressed frustration with the devices, their malfunctions and glitches, and in particular, her dissatisfaction with one device that emitted plumes of smoke when turned on.
¶ 7. In a memorandum of law submitted after the final hearing, the State contended that Ms. Bolduc's testimony established that the testing methods complied with the Department of Health's rules. As a result, the State maintained, the testing methods and results were entitled to a presumption of validity, reliability, and accuracy.
¶ 8. The trial court dismissed the State's contention that use of the term "should" in the Department of Health's manual allowed the officer to exercise his own discretion with respect to the testing procedure. The 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. Noting that the civil-suspension statute requires compliance with the testing statute, the trial court found the ...