This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Washington Unit, Criminal Division. Thomas A. Zonay, J.
Gregory Nagurney, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.
David C. Sleigh and Kyle L. Hatt of Sleigh Law, St. Johnsbury, for Defendants-Appellants.
Present: Reiber, C.J., Dooley, Skoglund and Crawford, JJ., and Morse, J. (Ret.), Specially Assigned.
[¶1] These consolidated cases stem from defendants Brian Grenier and Jessica Harris's prosecutions for driving under the influence (DUI). Defendants appeal the trial court's denial of their motions to suppress the results of their breath-alcohol tests taken by the DataMaster DMT machine. For the following reasons, we affirm the trial court.
[¶2] We begin with the procedural history. Defendants Grenier and Harris were arrested for driving under the influence on May 22, 2010 and February 8, 2011, respectively. Defendants moved to suppress the evidentiary breath-alcohol test results, arguing (1) that the Vermont Commissioner of Health (Commissioner) did not approve the DataMaster DMT machine used to obtain the breath-alcohol results, as required by 23 V.S.A. § 1203(d) and rules adopted by the Vermont Department of Health (DOH); and (2) that admission of the DMT results would violate defendants' due process rights under the United States and Vermont constitutions because of alleged ongoing mechanical problems with the machines and unprofessional practices by DOH employees. Defendants requested an evidentiary hearing on their claims.
[¶3] The Washington Unit Criminal Division denied defendants' motions to suppress on September 16, 2011. The court declined to hold an evidentiary hearing, finding it unnecessary because, even taking defendants' allegations as true, the parties did not dispute the relevant material facts. The court ruled that the DataMaster DMT was properly approved by
the DOH for use as a breath-testing device, based on letters issued by the DOH Commissioner in 2006 and 2010 approving " the DataMaster using infrared technology" for evidentiary use. The court rejected defendants' arguments that the approval was inadequate because it was not specific to the DataMaster DMT, reasoning that based on the language of § 1203(d) and this Court's case law interpreting the statute, the Legislature did not require such a specific approach. The court also rejected defendants' arguments that admission of the test results would violate their due process rights because their allegations against the DOH would be adequately tested through the adversarial system and did not need to be resolved on a motion to suppress.
[¶4] On October 11, 2012, defendants filed motions for reconsideration with additional evidence not before the trial court at the time of its initial decision. Defendants continued to assert that the DataMaster DMT was not approved in accordance with DOH rules, but argued further that (1) the initial 2006 approval letter could not have covered the DMT model because the State had not yet formally purchased the DMT machines at the time the letter was issued; and (2) the Commissioner issued the 2010 approval letter without due diligence, but merely as a rote response to a state's attorney's request. The court considered this new evidence, but affirmed its prior ruling that the Commissioner approved the DataMaster DMT in accordance with DOH rules.
[¶5] At trial, defendants vigorously attacked the reliability of the test and urged the jury to give it no weight. In particular, defendants relied on evidence of ongoing technical problems with the machines and of unprofessional conduct within the DOH, allegations that a subsequent internal investigation determined to be unfounded. Defendant Grenier was convicted by a jury of DUI, and defendant Harris pled guilty to the same charge, but conditioned on her appeal of the trial court's rulings. On appeal, defendants argue that the trial court abused its discretion in denying defendants' requests for an evidentiary hearing and that it erred in denying defendants' motions to suppress.
[¶6] Some further elaboration on the factual background is necessary to provide context to defendants' arguments. Our understanding of defendants' allegations is informed substantially by the trial court's factual findings, to which we defer on appeal. State v. Burnett, 2013 VT 113, ¶ 14, 195 Vt. 277, 88 A.3d 1191 (stating that this Court defers to trial court's factual findings on appeal from denial of motion to suppress); see also State v. Zacarro, 154 Vt. 83, 86, 574 A.2d 1256, 1258 (1990) (stating that when reviewing denial of suppression motions, " [w]e will not disturb the trial court's findings of fact unless they are unsupported by the evidence or clearly erroneous." ). We recite these facts with the important caveat that, like the trial court, we assume -- without deciding -- the truth of defendants' allegations for purposes of our decision.
[¶7] In 1991, the DOH deployed its first fleet of DataMaster machines, all BAC models, for use in DUI cases. This marked a transition from the gas-chromatography technology the State had previously used to the more modern method of infrared spectrophotometry. In 2005, however, the DOH began evaluating new models to replace the aging DataMaster BAC machines, motivated by increasing difficulty in repairing the machines and by the availability of a grant through the Governor's Highway Safety Program to purchase new machines. The DOH considered
four competing brands, and ultimately settled on the DataMaster DMT because of its preferable features, satisfactory results from initial performance testing, and the DOH's good working relationship with the manufacturer. The parties do not appear to dispute that the DMT model uses the same underlying infrared-spectrophotometry technology as the BAC model, but that it uses distinct detector technology, electronics, calibration and certification techniques, and a different software operating system from the BAC model. They disagree about the legal significance of these differences.
[¶8] On February 7, 2006, the Commissioner issued a letter entitled " Approval of Instrumentation and Procedures," which stated that " [t]he instrumentation approved for the analysis of breath alcohol for evidentiary purposes is the DataMaster using infrared technology." The letter explained that it was issued pursuant to DOH regulations requiring that " analytical instrumentation and analytical procedures for blood alcohol analysis shall be approved by the Commissioner of Health." The letter named only the DataMaster brand and did not differentiate between the BAC and DMT models. In May 2006, the DOH purchased an initial order of twenty DataMaster DMT machines. According to defendants, the initial fleet had technical problems -- including one machine that emitted plumes of smoke when turned on -- and all ten devices in the first shipment had to be returned to the manufacturer. The DMT machines exhibited continuing technical issues between 2006 and 2008, including failure to run routine performance checks in compliance with specifications, problems with how tickets printed in response to prompts for a second breath test, failure to report errors when the simulator solution was out of range, and other problems. In 2008, both the DOH chemist who tested the machines and the machines' software engineer concluded that Vermont's DMT machines were not ready to be deployed in the field. The problems continued, and in 2009 two of the DOH chemists recommended purchasing machines from a competing brand. Ultimately, however, the DOH purchased more DMT machines, and the machines were deployed for evidentiary use ...