On Appeal from Superior Court, Caledonia Unit, Criminal Division. Michael C. Pratt, J., Specially Assigned.
Gregory Nagurney, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.
David C. Sleigh and Kyle Hatt of Sleigh Law, PC, St. Johnsbury, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] Defendant Kelly M. Taylor appeals the civil suspension of her driver's license. On appeal, defendant argues that the trial court erred in finding that the State met its burden of showing that the breath-alcohol concentration " testing methods used were valid and reliable" and that " [t]he test results were accurate and accurately evaluated," 23 V.S.A. § 1205(h)(1)(D), when the printout (" ticket" ) generated by the DataMaster DMT breath-alcohol testing device was not admitted into evidence. We affirm.
[¶2] The following facts are uncontested. In July 2014, defendant was stopped by a police officer in Lyndonville on suspicion of driving under the influence of alcohol (DUI). At the stop, defendant submitted to a preliminary breath test showing an alcohol concentration above the legal limit. Defendant was arrested and taken to the Vermont State Police barracks in St. Johnsbury, where she took an evidentiary breath-alcohol test using a DataMaster device. This test showed that defendant's alcohol concentration was 0.158, above the legal limit. See 23 V.S.A. § § 1201(a)(1), 1205(a)(1).
[¶3] The State filed a civil-suspension notice in the superior court. See id. § 1205(c). The State submitted affidavits from the arresting officer, who also administered the test, and from a chemist employed by the Vermont Forensic Laboratory. The officer's affidavit describes the events leading up to the arrest, defendant's appearance and demeanor at the time, and the administration of the evidentiary test. Attached to the officer's affidavit was the printout generated by the DataMaster device in connection with defendant's test. The chemist's affidavit states that the chemist reviewed the officer's affidavit (including the attached ticket), and that based on this information as well as her own knowledge of the device and review of the device's maintenance
records, " the test result of 0.158 ... is an accurate and valid indication" of defendant's alcohol concentration at the time of the test.
[¶4] At the final civil-suspension hearing, see id. § 1205(h), the trial court granted defendant's motion to exclude the ticket from evidence. The court concluded that the officer's affidavit did not incorporate the ticket by reference, so the ticket could not be considered to be part of the affidavit. The court found, however, that other evidence -- the affidavits of the officer and chemist -- had established that " the testing methods used were valid and reliable" and that " the test results were accurate and accurately evaluated." As a result, the court concluded that the State met its burden of showing, by a preponderance of the evidence, that the officer had reasonable grounds to believe that defendant was operating a vehicle under the influence of alcohol, that defendant had submitted to the breath-alcohol test, and that the test results indicated that her alcohol concentration was above the legal limit. Id. § 1205(i), (j).
[¶5] The court reiterated its ruling in denying defendant's motion for reconsideration on the issue of whether the State could meet its burden of proof without the ticket itself in evidence. The court explained that while the printout was excluded from evidence, " the information on the ticket was not suppressed" because the State had " provide[d] the information shown on the ticket through statements of fact contained in the affidavits of the officer and chemist," which averred that the correct procedures for administrating the test had been followed, and the accuracy and reliability of the test results were established.
[¶6] On appeal, defendant argues that without the printout as evidence, the State cannot establish, by a preponderance of the evidence, some of the required elements of the State's civil-suspension case: that " the testing methods ... were valid and reliable, and ... [that] the test results were accurate and accurately evaluated." Id. § 1205(h)(1)(D). Defendant argues ...