Thursday, April 28, 2016

Challenging the Reliability of the Government’s Say-so

State v. Taylor2015 VT 104

By Andrew Higley

Nobody likes to lose his or her license. That’s why there are DUI attorneys. The facts here are pretty common of the typical DUI case in Vermont. Defendant was driving through the town of Lyndonville; the police stopped her on suspicion of drunk driving; she submitted to a “preliminary” breath test, and she was then transported to the St. Johnsbury police barracks. There, the officer asked her to submit to another breath test. The test at the police station was conducted on what’s called a DataMaster device. That name always sounded like something out of the Terminator movies. For that reason, I think I’ll refer to it as the “Machine.” The Machine is supposed to be more scientific and reliable than the simple roadside test. At the station, the Defendant blew a 0.158, which is just about twice over the so-called “legal limit.”

Sidenote: for purely criminal DUI purposes, proving a blood alcohol concentration of 0.08 is not necessarily required. Instead, the State needs to prove a person was operating a vehicle under the influence of intoxicating liquor (is there a non-intoxicating liquor?). Hence the reason the above quotation marks. But, this case is only an appeal of a civil license suspension. Here, the State is only required to show your blood-alcohol concentration was above .08. The other key difference is the burden of proof. Because the sanction is non-criminal—a license suspension—the State’s burden is only by a preponderance of the evidence, which is roughly only 51%. So the State doesn’t even need a passing grade. 

Back to our main programming. In the trial court, the State filed a notice to suspend the Defendant’s license supported with two affidavits: one from the arresting officer and one from a state chemist. The arresting officer also attached the Machine’s “ticket,” a print-out of the Machine’s test results, to the affidavit. At the final civil suspension hearing, the State attempted to admit that ticket into evidence. In what a lay-person may call a technicality, the trial court refused to consider the ticket because the officer’s affidavit did not incorporate the ticket. The court, however, would not let such a small mistake go unrewarded. The court then concluded that the testing methods were nevertheless “valid and reliable,” and that the results were “accurate and accurately evaluated” based on the affidavits alone. Finding such, the trial court also found the State had met its burden (again, the burden here is not that high).

Defendant appeals, arguing that the State needed the ticket printout (which she had successfully excluded) to prove that the test results indicated she was over the legal limit. She argues that the State cannot just produce a number in an affidavit, but must submit evidence of the “scientific process” that created that number.

SCOV disagrees, pointing out that the statute does not require that element. If the legislature wanted to include that requirement, it would have. The only question the State needs to answer is whether the test was reliable. SCOV holds that the statements in the affidavit that the Machine was working properly is sufficient to answer that question and get the State past its minimal burden. The government’s say-so is enough.

Defendant also argues that the officer could not testify about the results of the ticket, which again, the court excluded from evidence, precisely because it was excluded from evidence. SCOV counters that “liberal evidentiary” rules in civil suspension hearings permit the officer to testify about the ticket because it is the type of evidence commonly relied upon by someone in his field. This is the case even if the ticket is not itself admitted into evidence. Basically, if everyone is using it, it must be reliable.

Finally, SCOV notes that the Defendant could cure this problem by producing the ticket herself to challenge the reliability of the test. This has the faint smell of burden shifting. But I just summarize the cases. 

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