On Appeal from Superior Court, Chittenden Unit, Criminal Division, February Term, 2013, Alison S. Arms, J. (2012-255), Brian J. Grearson, J. (2012-296).
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. 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, 686 A.2d 949 (1996), and 23 V.S.A. §§ 1203(d) and 1205(h), the results of an infrared breath test are admissible if the State shows that the analysis was performed by an instrument that meets the performance standards set by the Department of Health,  and the instrument met those standards at the time of the test. The State alleged that defendant could contest the foundation facts, but could not otherwise challenge the admissibility of the test. According to the State, defendant did not contest the facts relevant to admission, including that: the DataMaster met the relevant standards, operated according to those standards during the tests, and was operated by a person certified to administer the test. Because these ...