Saturday, July 26, 2014

DataMaster's "Fatal" Error revived with CTRL-ALT-Delete

State v. Burnett, 2013 VT 113

By Ember Tilton

After being arrested for DUI, Jason Burnett attempted to blow into the DataMaster (Vermont's evidentiary station-house breath-alcohol-testing machine). He might have thought he hit the DUI jackpot when the machine returned a "fatal error" message. Machine's broken! Game over. But, like with Microsoft windows, one may only need to turn it off and turn it back on again. 

Well, that's exactly what the police officer did. And, the second time it worked "like a charm" returning a .229 reading (that's a pretty high test result in case you were wondering). Under Vermont law, a person is entitled to a second try. So, when he attempted again and the machine again returned a error message, the process was repeated. Again, the machine worked after the restart and Burnett blew a .260 (assuming that the machine is accurate, that's over halfway to dead, medically speaking). He was subsequently charged with DUI and issued a civil suspension complaint.

Now enters the attorney for Mr. Burnett, who promptly files motions to dismiss and suppress on both the civil and criminal dockets. At the hearing on the motion to suppress, defendant produced an expert who testified that the machine might not have produced an accurate result, though she could not say for sure. The State produced the officer who had to admit that according to his training he should have used a new machine after encountering the error.

The trial court denied both motions on the grounds that the misuse did not render the results inadmissible but rather the errors went toward the weight of evidence. Defendant entered into a conditional guilty plea, contingent on the outcome of this appeal.

On appeal, defendant argues that the State failed to lay a foundation for the results, which must include evidence that the results are reliable. He claimed that the proper procedure was not followed and that the discrepancy between the results demonstrated that the machine was not working properly.

The majority reasons that since the admissibility of DataMaster results is guided by statute and just requires that the machine comply with the Department of Health guidelines, the results are admissible. Even though the machine seemed to be having problems, at the time that it produced the "valid" result, the machine was compliant, so therefore, the admissibility could not be challenged. Nothing in the statute required that the officer follow the procedures laid out in the manual, so the State had met its burden.  The dissent has some things to say about that

Next, the majority turns to the civil suspension. Because civil-suspension cases have a special set of court procedures to expedite license suspensions, the results are analyzed in that context as well. Because there is a presumption that a person was drunk if the DataMaster results show an alcohol level at or above .08 within two hours of operation, the defendant must overcome this presumption. Here, the majority concludes that the evidence produced by defendant was sufficient to rebut the presumption. 

Therefore, the majority remands the case back to the trial court to make findings about whether the test results were reliable. The "fatal error," it seems, does not affect admissibility but does go to the evidentiary value and must be considered along with factors demonstrating the results were not reliable. 

The majority seems satisfied with the jiggle-the-handle approach.

The dissent is not so convinced. Justice Skoglund, joined by Justice Robinson, writes: "Simply put, the State failed to demonstrate that the DataMaster used on defendant’s breath sample was operating according to the standards set by the Department of Health at the time of the test." One doesn't fix this kind of thing by simply turning the machine off and turning it back on.  

The dissent notes that this was a "fatal error." The officer knew he should go find a new machine, but instead flicked it on and off. This, the dissent reasons is "the equivalent, I suppose, of kicking the vending machine to get what you paid for when your candy is stuck."  As Dave Barry would say, I swear to God I am not making that up.   

The dissent, because the tests were not reliable and in accordance with the applicable guidelines, wouldn't let the tests in in either the civil or the criminal proceedings.  

With a 3-2 split, this probably isn't the end of this discussion.  Stay tuned.  

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