State v. Parah

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-367

                            DECEMBER TERM, 1990


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Franklin Circuit
                                  }
Mildred I. Parah                  }
                                  }          DOCKET NO. 1569-10-88Fcr


             In the above entitled cause the Clerk will enter:


     Defendant appeals her conviction after trial by jury of operating a
vehicle while under the influence of intoxicating liquor in violation of 23
V.S.A. { 1201(a)(2).  We reverse and remand.

     The State was allowed to introduce, over objection, defendant's .149%
blood-alcohol-content (B.A.C.) test result without evidence relating the
result back to the time of operation.  Admission of a numerical test result
without relation-back evidence is ordinarily reversible error.  State v.
McQuillen, 147 Vt. 386, 387-88, 518 A.2d 25, 26 (1986); State v. Dumont,
146 Vt. 252, 255, 499 A.2d 787, 789 (1985).  The State attempts to avoid
this line of cases by arguing that defendant's .149% B.A.C. test result was
admissible pursuant to 23 V.S.A. { 1204(a)(4), which establishes a
permissive inference that a person was in violation of { 1201(a)(2) if, at
any time within two hours of the alleged offense, that person's B.A.C. test
result was .15% or more.  This argument is not persuasive, however, because
the State has failed to show that the legislature, in specifying .15% as the
threshold for { 1204(a)(4)'s permissive inference, meant to include .149%.

     In so holding, we are mindful of our prior admonition that "[i]t is
important that evidence of the numerical test result be treated with care in
a prosecution under 23 V.S.A. { 1201(a)(2)."  McQuillen, 147 Vt. at 387, 518 A.2d  at 26.  Further, we note that "a penal statute is to be interpreted
favorably to the accused."  In re Hough, 143 Vt. 15, 19, 458 A.2d 1134,
1136 (1983).  Finally, we point the State to our prior disapproval of its
argument that, because rounding off is the accepted practice of the Vermont
Department of Health, the statute should be read to incorporate this
practice.  In State v. Lamelle, 133 Vt. 378, 381, 340 A.2d 49, 51 (1975)
(dicta), we stated that "if the actual test established a level of less than
.10% and a rounding-off would result to elevate it to the minimum, or more,


of the level prohibited by the statute, this would indeed be prejudicial to
the accused."  Likewise, we reject the State's position here that
defendant's B.A.C. test result should be rounded off to fall within {
1204(a)(4).

     Reversed and remanded.










                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice