Monday, December 3, 2012

“Dead” DataMaster Delivers Defendant



State v. Spooner, 2012 VT 90

One of the most-amusing parts about this case is how it starts its path through the judicial system.  Just before midnight, Defendant gets stopped after ignoring a “Road Closed—High Water” sign and crossing a flooded roadway.   

Now I don’t know about you, dear reader, but a sign like that is a challenge to someone like me.  Some people might say that’s because I’m a moron, but “some people” is downstairs reading a book after the kids have gone to bed and can’t hear me muttering—so there.


Back to said story . . . Trooper smells booze, makes Defendant do the field-sobriety tests and the PBT.  Based on those, Defendant wins a ride to the local police department, where Trooper works the DataMaster DMT blood-alcohol-content-measurement device . . . .

The DMT is not cooperative.  The first test goes fine, and the Trooper gets a .101 reading.  A minute later, the DMT reads “standard out of range.”  The third time is not the charm, and seven minutes after the second attempt, he gets an “invalid sample.”   On the fourth try, we get a reading of .109.  Trooper informs Defendant of his right to obtain an independent test.  Defendant is processed and charged with DUI. 

In Vermont (and many other states), there are two prongs to a DUI: one civil, one criminal.  The civil part is the theoretically-almost-immediate suspension of one’s privilege to operate motor vehicles.  While a defendant does get a hearing if he or she requests one, the potential issues are statutorily limited, and the final civil suspension hearing is generally set well before things progress on the criminal prong. 

Here, we’re in civil-suspension territory.  At Defendant’s final civil-suspension hearing he argues that the statutory requirements for civil suspension had not been met based on two allowed issues: (1) that the State lacked valid and reliable testing methods that were accurate and accurately interpreted; and (2) he didn’t get his statutorily permitted second test, due to the errors with the DMT machine and the Trooper’s failure to follow the instruction manual.     

Give any guy a “toy” like a new tool or electronic gadget and nine times out of ten, the instruction manual is the last thing said guy will look at.  This trait, so dominant in the male of our species, can create problems.  Just ask “some people.”

As it turns out, there’s a training manual in this case.  The manual provides “proper” operating procedures for the DMT and also specifies that there are fatal and nonfatal errors during operation (sorry, but as a card-carrying guy I have to put quotes around proper).  As roughly implied by the terms, a nonfatal error can be remedied by the operator, a fatal error cannot.   Incidentally, “standard out of range” is a fatal error.  So, assuming the Trooper had read the manual . . . that was the time to place the machine out of service, find another DMT to use, or draw some blood.  As we know, none of these things happened.  This screw is a half-inch shorter than what I need!  I’m never buying anything from IKEA again!  Simple assembly, my &$%*(*& $$%!!!

Anyway, the State’s chemist—whose paycheck is written by . . . the State—testifies that the DMT was probably fine and that, yeah, the whole fatal-error thing is in the manual, but if the operator breathes life into the machine (so to speak), then, you know, “it’s fine.”  Defendant cross-examined the State’s chemist on her expressed frustration with DMTs, their malfunctions and glitches . . . and “one device that emitted plumes of smoke when turned on.”  Yeah, those quotes are straight out of the opinion.  Sometimes I don’t even have to change anything to make it amusing. 

The State submitted an after-hearing memorandum arguing that the State’s chemist’s testimony established that the methods complied with the Department of Health’s rules and were entitled to a validity-reliability-and-accuracy presumption.  What it sounds like from the opinion is that the State argued that in light of the chemist’s testimony and the word “should” in the manual, the whole if-you-get-a-fatal-error-then-take-the-machine-out-of-operation thing is discretionary and the test is good.

The trial court doesn’t buy it, reasoning that when the State doesn’t follow its own rules, it gets no reliability presumption.  The trial court reasons that the State’s failure to follow protocol deprived Defendant of a valid and reliable second test, and it dismisses the civil-suspension complaint.  The State appeals.

The State has two main arguments: (1) the training manual doesn’t provide sufficient grounds to render the second test unreliable and that the trial court can’t “exclude” breath-test results based on the “mere possibility” of inaccuracy; and (2) the first test was enough to sustain a civil suspension.  The SCOV rejects both arguments, though it uses a fancy word, finding both arguments unavailing

First, the SCOV notes that the dismissal of the civil-suspension complaint didn’t rest on admissibility or exclusion of the breath-test results, but on the State’s failure to comply with the civil-suspension statutes.   This sets the stage for a later we’re-talking-about-statutory-compliance-not-evidence-admissibility-here discussion.

The standard of review here is mixed: findings of fact are reviewed for clear error; conclusions of law are reviewed by some Latin term, which means roughly “we go over the whole thing.”

The SCOV concludes that determining whether the tests were reliable involved assessing the State’s chemist’s credibility, and thus, is a finding of fact.  The trial court’s decision to give more weight to the training manual and to not credit the chemist’s testimony is within its purview as fact-finder, and thus, there’s no error.  Regardless of the statutorily-provided-validity presumption arising under rule-compliant tests, when the State doesn’t follow its rules, the fact-finder can decide the opposite of the presumption.   

The State also argues that the first test was good enough to do the trick.  And the trial court’s finding that a reliable second test is a necessary element of the civil-suspension procedure is a conclusion of law, which gives us a go-over-the-whole- thing-statutory-construction-type-of review. 

The SCOV notes that civil suspension is a summary proceeding, intended to get potentially unsafe drivers off the road quickly.  At the final hearing, potential issues are restricted by statute to a narrow range of issues.   Two of the limited issues a judge can consider are whether the testing methods used to establish blood-alcohol content were valid and reliable and whether the State complied with the requirements of the blood-alcohol-testing statute.  The SCOV concludes that the statutes must be read in light of one another and, specifically, “if a person elects to have a second test, the methods of that test are reviewable for validity and reliability by the court at a final civil-suspension hearing.”

The SCOV disagrees with the State’s contention that a first, valid and reliable test is sufficient for civil suspension.  As the SCOV sees it, this would render the statutes meaningless: there’s a review procedure and it specifically provides for review of compliance with the testing-procedure statute.  One good test just doesn’t cut it because a second test is specifically provided for.  And so, the SCOV holds, “If a court finds that the second test was conducted in an unreliable fashion, the State has necessarily failed to carry its burden to establish compliance with § 1202, and the court must then deny the civil suspension of a defendant’s license.”  Boom. 

As noted above, the SCOV distinguishes between admissibility of evidence and statutory compliance.  The State, it seems, relies on a number of cases dealing with the admissibility of breath-test evidence, even when a second test isn’t administered in compliance with the statute.  “Wrong proceeding” says the SCOV.  The dismissal here is based on a lack of statutory compliance, not on suppression of the breath-test results.  

Defendant wins.  

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