State v. Burgess, 2010 VT 64.
If I am ever called upon to train police in DUI stops, the first bit of advice I will give is this: No matter what, if you are planning on having a stopped driver exit for a sobriety test, always write in your notes that the car reeked of alcohol. You don’t have to get hit with a cloud of fermented hops and barley, but you do have to smell it. If you write it down, the SCOV will never overturn your justification for an exit order.
Such was certainly the case in the present appeal. Defendant was heading home after an evening amongst friends when he was pulled over by a state trooper for speeding. He also decided that Defendant had not reacted quickly enough to his lights or pulled over far enough onto the shoulder and approached the car with a suspicion of DUI. Sure enough, the Officer sensed a gentle breeze of alcohol emanating from the car where Defendant sat alone with his two friends, Unopened Beer in the Cup Holder and Unopened Beer in His Jacket. Officer asked Defendant if he would mind exiting the vehicle and performing a few feats of physical skill.
On appeal, Defendant contests the exit order as lacking any basis since Defendant was not drinking at the time, did not admit to having more than one beer (yet), and had not been driving erratically. The SCOV, however, affirmed the exit order based on Defendant’s poor choices (speeding in a snowstorm and being slow to respond) but particularly the Officer’s observations (slight scent of alcohol and watery eyes). Bingo. Scent of alcohol. You are nailed and coming out of the car.
After failing his physical tests and initially refusing a field breathalyzer, Defendant was arrested on suspicion of DUI and taken to the station for processing and further testing. Two hours later Defendants blew a 0.126 on the station’s Breathalyzer and a 0.117 three minutes later. Using these readings, the State employed retrograde analysis to determine that Defendant was under the influence while driving and arrested him.
At trial, Defendant sought to suppress the Breathalyzer tests because they were taken more than two hours after he operated his truck and because retrograde analysis under such circumstances can be less than accurate. The trial court agreed and suppressed the tests for the criminal trial. The State appealed. SCOV reversed the trial court under a Daubert analysis. The SCOV found that retrograde analyses are frequently used, even outside the two hour range and are widely accepted as accurate. It was error for the trial court to completely suppress this evidence as Defendant’s real issue is one of credibility and doubt that are the proper venue of cross-examination or rebuttal experts. Because the science is fairly sound and widely accepted, the SCOV concluded Daubert’s liberal “junk science” standard would allow it so long as Defendant could raise doubt through a counter-expert.
As a last resort, Defendant argues that the retrograde analysis is per se inaccurate because it does not take into account what Defendant ate prior to driving or whether he drank a lot of alcohol right before operating his truck. Defendant argues that he could have been operating his truck before the alcohol hit his system. This is known as the “chug-a-lug” theory. The SCOV refers to it as such but notes that it is pure speculation since Defendant did not admit to chugging a lug of alcohol directly before operating his truck. In fact, the evidence was that he paced his drinking through the night prior to operation. Without further evidence, there is no basis to attack the verdict, and Defendant’s appeal is dismissed while the State’s is granted.
In the future, Defendant plans to travel to and from parties with Foster Brooks to shift any blame when the Officer smells beer or starts asking about his friend.