Tuesday, February 17, 2015

Let’s Not Get Too Technical

State v. Grenier & State v. Harris, 2014 VT 121

By Christopher A. Davis

In these consolidated cases, defendants Grenier and Harris appeal the trial court’s denial of their motions to suppress breath alcohol test results obtained by the DataMaster DMT machine.

Grenier was arrested for DUI on May 22, 2010, and Harris on February 8, 2011. Defendants moved in their respective cases to suppress the evidentiary breath-alcohol tests results (the one that’s admissible in court and typically is given during processing at the station, not the inadmissible roadside one that’s used for probable cause to arrest someone), arguing that: (1) the Vermont Commissioner of Health (“Commissioner”) did not approve the DataMaster DMT machine used to obtain the evidentiary breath-alcohol results as required by statute and Vermont Department of Health (“DOH”) rules; and (2) admission of the DMT results would violate defendants’ due process rights under the U.S. and Vermont constitutions because of alleged ongoing mechanical problems with the machines and unprofessional practices by DOH employees. Defendants requested an evidentiary hearing on these arguments.

On September 16, 2011, the trial court denied defendants’ motions without conducting an evidentiary hearing, reasoning that even if the court accepted defendants’ allegations as true, the parties did not dispute the facts relevant to the court’s determination of the motions. The trial court ruled that the DataMaster DMT was properly approved by the DOH (who the SCOV points out in a footnote no longer administers the breath-alcohol testing program – that’s now Department of Public Safety as of March 2012), based on letters issued by the Commissioner in 2006 and 2010 approving “the DataMaster using infrared technology” for evidentiary testing. The trial court rejected defendants’ arguments that the Commissioner’s approval was inadequate because it did not specifically approve the DataMaster DMT, noting that based on the statute (23 V.S.A. § 1203(d), if you’re interested) and SCOV case law, the Legislature did not require that level of specific approval. The trial court also rejected defendants’ due process arguments, finding that their allegations against the DOH could be properly tested through the trial process.

Undaunted, defendants filed motions for reconsideration, bringing forward additional evidence not previously considered by the court. Defendants continued to argue that the DataMaster DMT machine was not properly approved, further claiming that: (1) the initial 2006 approval letter could not have covered the DMT model because the State hadn’t formally purchased the DMT machines at the time the letter was issued; and (2) the Commissioner issued the 2010 approval letter without due diligence, basically just responding to a request by a state’s attorney who anticipated legal challenges to the continued use of the DMT machine. The Court considered these new claims, but affirmed its prior ruling.

Defendants proceeded to trial and attacked the reliability of the DMT evidentiary tests, relying on evidence of ongoing technical issues with the machines and alleged unprofessional conduct by the DOH in administering the breath-alcohol testing program. But faith in state employees was a river that ran deep that day, Grenier was convicted of DUI, and Harris entered a conditional guilty plea preserving her appeal (with Grenier) of the trial court’s rulings. Defendants appealed, arguing that the trial court abused its discretion in denying the original request for an evidentiary hearing, and also erred in denying the motions to suppress.

SCOV ground rules: they’ll defer to the trial court’s findings on appeal from a denial of a motion to suppress unless found to be unsupported by evidence or clearly erroneous . . . which in this case means the SCOV will also assume that defendants' allegations are true. Also, lights out by eleven and I’M SERIOUS NO VIDEO GAMES YOU GUYS.

Before we go further, Professor SCOV decides to give us a history lesson. The DOH deployed the first group of DataMaster BAC (not DMT) models for use in DUI cases in 1991. These machines used infrared spectrophotometry as opposed to gas-chromatography technology.


In 2005, the DOH looked to replace the BAC models for various reasons, and ultimately settled on the DMT model, which uses the same infrared-spectrophotometry technology but different parts, calibration and certification techniques, and software. On February 7, 2006, the Commissioner issued a letter entitled “Approval of Instrumentation and Procedures,” stating that “[t]he instrumentation approved for the analysis of breath alcohol for evidentiary purposes is the DataMaster using infrared technology,” and going on to note that the letter was issued pursuant to DOH regulations requiring such instrumentation and procedures for blood alcohol analysis to be approved by the Commissioner. The letter didn’t differentiate between BAC and DMT models. The DOH subsequently bought twenty DataMaster DMT machines. Defendants presented evidence as to a host of technical issues related to that first fleet of machines (including reference to testimony in 2008 by a DOH chemist and software engineer as to the issues, and a 2009 recommendation from DOH chemists to purchase machines from a competing brand). The DOH purchased more DMT machines and deployed them for use in 2009 and 2010. On September 24, 2010, the Commissioner issued another approval letter with the same language as the 2006 letter. Defendants also presented deposition testimony of two chemists who questioned the competence and ethics of the DOH technician responsible for maintaining the DMT machines and related documentation (citing shortcuts, falsifying reports, and other juicy intra-departmental allegations). In response to the complaints, an internal investigation was conducted that found no unethical practices. The trial court found no reason to question the investigation’s results.

Bearing all that in mind, the SCOV turns first to the issue of the trial court’s denial of defendants’ requests for an evidentiary hearing. The decision to hold an evidentiary hearing is in the discretion of the trial court. A hearing isn’t necessary unless the filings indicate that a real dispute exists for one or more relevant facts. Failure to hold an evidentiary hearing isn’t a due process violation unless such a factual dispute exists. Here, the trial court deferred to the agency interpretation of what was needed for approval of breath-testing technology (a general approval not specific to model), so the factual dispute over differences in the DMT and BAC models was irrelevant. Furthermore, the factual disputes over incompetent and unethical behavior within the DOH speaks to general administration of the DOH alcohol program, not its application to defendants’ cases specifically. Without contesting the foundational facts justifying admission of these defendants’ specific test results, those factual disputes are irrelevant as well. Defendants had an adequate opportunity at trial to raise the alleged shortcomings of the DOH.

On to the denial of the motions to suppress. SCOV defers to trial court’s factual findings and reviews its legal conclusions de novo (as if for the first time). Defendants’ first claim is that the DataMaster DMT was properly approved by the Commissioner. The SCOV reviews the statute covering DOH approval as well as the resulting rule promulgated by the DOH (which the SCOV in this case, found to comply with the requirements of the statute). Defendants claim: (1) the DataMaster DMT and BAC models are so different they require separate approval letters; (2) the 2006 approval letter could not have covered machines that weren’t purchased yet; (3) the letter was signed in September 2010, so even if it did cover the DMT, it couldn’t apply to Grenier, who was arrested in May 2010; and (4) the Commissioner did not engage in due diligence in issuing the approvals. The SCOV boils this down to whether the Commissioner’s approval letters complied with Paragraph 6 of the DOH rule (“The analytical instrumentation and procedures used for analysis of breath alcohol content for evidentiary purposes shall be approved by the Commissioner of Health”).

This question implicates the agency’s interpretation of its own regulations. The SCOV defers to an agency’s interpretation of its own regulations, and the presumption of validity that attaches to an agency’s interpretation of its regs may only be overcome by compelling indications of error. The primary goal of interpreting agency regulations is to discern the intent of the drafters, and we start with the plain meaning of the regulatory language. Let’s administer!

The Commissioner’s letters indicate that the Commissioner interpreted “instrumentation” (for purposes of the rule) to refer to one or both of two types of instruments that perform the same function (one using gas chromatography and one using infrared-spectrophotometry). The history of the Commissioner’s letters consistently approve of using infrared spectrophotometry for breath-alcohol analysis, and specifically DataMaster. Starting in 2004, the Commissioner’s letters omit reference to gas chromatography for use in breath-alcohol testing, but reference both infrared technology and DataMaster as the instrumentation approved. The legal framework for blood-alcohol-analysis is the same (by statute and rule), and the Commissioner’s letters from 1997-2010 in that context reference approval of gas chromatology as the instrumentation. So the SCOV sees consistency in the way the Commissioner interprets “instrumentation” in a general way over time (and not specifically as defendants argue should be the case). Furthermore, any doubt should be cleared up by the Commissioner’s response to the state’s attorney’s letter in 2010, which stated that the Commissioner was in the process of drafting a new approval letter, and that the approval of DataMaster instruments using infrared technology covers former and new equipment.

The DOH rule entrusts approval of instrumentation and procedures related to analysis of breath alcohol content to the Commissioner, and so the SCOV will defer to the Commissioner’s interpretation if it’s reasonable. The rule itself doesn’t define “instrumentation,” but does define “method” as “an analytical technique for performing chemical analyses” and states that a method may require specific instrumentation, thereby differentiating between “method” (technique) and “instrumentation” (device). The SCOV rejects defendants’ argument that “instrumentation” must refer to specific DataMaster models (like BAC or DMT). The Commissioner’s interpretation of “instrumentation” as meaning a class of instruments rather than specific models is reasonable. We get some dictionary action in the course of this discussion.

The SCOV presumes that the DOH chose the term “instrumentation” in its rule for a reason. Also, approval of a brand (DataMaster) instead of a model (BAC or DMT) comports with the Legislature’s intent to adopt a more general approach that gives the DOH flexibility in administering the statute and adapting to changes in operation of instruments that infrared technology to analyze breath samples. Basically, let’s leave the science to the DOH nerds and get back to the important business of what’s for lunch. The SCOV’s Rolfe decision upheld the delegation of ensuring that any machinery meets non-instrument-specific performance standards, and interpreted the enabling statute to provide a generic approach to those performance standards. Defendants’ argument that the Commissioner’s approval had to specify a model for use of infrared technology is not supported by the history of general interpretation. Defendants’ arguments as to differences in the BAC and DMT models fall flat because the interpretation of the term “instrumentation” is not dependent on differences or similarities between models, but rather a class of instruments employing a specific kind of technology (in this case DataMaster machines using infrared technology). Because the Commissioner has consistently approved DataMaster machines using infrared technology since 1992, defendants’ argument that the 2010 approval doesn’t apply to Harris is wrong.

Finally, the SCOV disposes of the defendants’ arguments regarding the Commissioner’s bad-faith or pro forma issuance of the 2010 approval letter as one would expect them to, relying on the trial court’s conclusions that the approval was exercised with due diligence. Trial court decisions affirmed.

So sayeth the High Court.

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