State v. Camolli

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-224


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Thomas Camolli                               Unit No. 1, Windham Circuit

                                             September Term, 1990


Robert Grussing III, J.

Gary S. Kessler, Supervising Appellate Prosecutor, and Pamela Hall Johnson,
Appellate Prosecutor (On the Brief), Montpelier, for plaintiff-appellant

Hertz and Wesley, Brattleboro, for defendant-appellee


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     GIBSON, J.   The State of Vermont appeals, pursuant to 23 V.S.A. {
1205(i), from a district court decision dismissing the State's civil-
license-suspension proceeding against Thomas A. Camolli.  We reverse.
                                    I.
     The relevant facts are as follows.  On January 21, 1990, defendant was
stopped by a state trooper and processed for driving while under the
influence of intoxicating liquor.  A breath sample was collected by means of
a gas chromatography (crimper) testing device.  Analysis of the sample on
February 15, 1990 by the Department of Health revealed a blood-alcohol
content of 0.15 percent.  The trooper received the lab report on February
28, 1990, and completed the affidavit required by { 1205(a) that same day.
The next day he mailed defendant a notice of intention to suspend driver's
license.
     Defendant timely requested a hearing before the district court.  At
the hearing, defendant orally moved to dismiss the proceeding.  The court
granted the motion, holding that { 1205 was intended to be used only with
infrared testing equipment and not with a crimper device, and that the State
had not complied with { 1205(b)'s requirement that notice of intent to
suspend be mailed immediately.  On appeal, the State contends that the
district court erred on both grounds.  Defendant has moved to dismiss the
appeal on grounds that the State is not allowed to appeal from the district
court's decision.
                                    II.
     We turn first to defendant's threshold argument, that 23 V.S.A. {
1205(i) does not authorize the State's appeal.  Section 1205(i) provides
that "[a] decision of the district court under this section may be appealed
as a matter of right to the supreme court.  The suspension shall not be
stayed pending appeal unless the defendant is reasonably likely to prevail
on appeal."  Defendant asserts that the State may not appeal because (1) the
trial court's decision was not a decision "under this section," and (2) any
right of appeal under { 1205(i) is limited, by implication, to a motor
vehicle operator.
     With respect to his first point, defendant contends that the right of
appeal found in { 1205(i) is limited to the issues delineated in { 1205(f) (FN1)
and that the trial court never reached the merits of those issues.  Section
1205(i) does not, however, limit the right of appeal to the issues set forth
in subsection (f).  Instead, it grants a right of appeal from any decision
made "under this section."  As defendant concedes, the word "section"
ordinarily refers to the entire section, not just one of its subsections.
The hearing held by the district court was convened pursuant to { 1205.  The
fact that the decision was based on what the court considered to be juris-
dictional and procedural irregularities did not take the proceeding out
from under the section.  The statute's meaning is plain on its face; the
term "section" encompasses all of { 1205, and the district court's decision
was therefore one made "under" { 1205.
     Nor are we convinced by defendant's argument that the reference in the
second sentence of subsection (i) to "[t]he suspension" necessarily implies
that the Legislature intended to afford only the defendant the right to
appeal an adverse decision.  Instead, we think that the two sentences may be
read independently.  The first sentence authorizes an appeal from any
adverse decision made by the district court under { 1205.  The second
sentence addresses the distinct issue of obtaining a stay in the event the
defendant loses before the district court and is reasonably likely to pre-
vail on appeal.  Defendant's motion to dismiss the appeal is accordingly
denied.
                                   III.
                                    A.
     The State's first argument on the merits is that the district court
erroneously decided that { 1205's summary suspension procedure is not
available when the crimper device is used.  Defendant counters that the
express terms of { 1205 support the district court's conclusion.
     Section 1205(a) does not distinguish between types of tests.  Rather,
the statute speaks generally in terms of "a test."  23 V.S.A. { 1205(a)
(emphasis added). (FN2) While { 1200(3) defines "evidentiary test" to include
both breath and blood tests, (FN3) the statute does not define the word "test."
"Words used in a statute which have not been specifically defined in that
statute are to be given their plain and commonly accepted meaning."  Vincent
v. Vermont State Retirement Bd., 148 Vt. 531, 535-36, 536 A.2d 925, 928
(1987).  "Test" is a generic term, referring, at the very least, to the use
of crimpers in addition to the infrared test.  Had the Legislature intended
to distinguish between specific tests, it would have used specific test
names rather than the generic term "test."  See Vermont State Colleges
Faculty Fed'n v. Vermont State Colleges, 138 Vt. 451, 455, 418 A.2d 34, 37
(1980) ("Presumably, this language was inserted advisedly, and with intent
that it should be given meaning and force.").  Section 1205's summary
suspension procedure is accordingly available for use when a crimper testing
device is used.
                                    B.
     The State also contends that the district court erroneously computed
the time period for { 1205(b)'s immediate-notice requirement.  The district
court concluded that immediate notice of intent to suspend should be com-
puted from the time the sample is analyzed and the result obtained, if not
the time when the defendant is stopped by the law enforcement officer.
Section 1205(b) provides, in relevant part:

          On behalf of the commissioner of motor vehicles, a
          law enforcement officer requesting or directing the
          administration of an evidentiary test shall serve
          immediate notice of intention to suspend and of
          suspension . . . on a person who submits to a test
          the results of which indicate that there was 0.10
          percent or more by weight of alcohol in the blood
          . . . .  The notice shall be signed by the law
          enforcement officer requesting the test.  A copy of
          the notice shall be sent to the state's attorney
          and the commissioner of motor vehicles and a copy
          shall be mailed or given to the defendant.  If
          mailed, the notice is deemed received three days
          after mailing to the address provided by the
          defendant to the law enforcement officer.  A copy
          of the affidavit of the law enforcement officer
          shall also be mailed or given to the defendant
          within seven days of the date of the notice, return
          receipt requested.

(Emphasis added.)
     The district court's conclusion that the time for giving "immediate
notice of intent to suspend" begins when the sample is analyzed, if not at
the time of the initial stop, is inconsistent with the statutory language
and would lead to an irrational result.  The statute makes clear that the
law enforcement officer who requested administration of the test must give
notice of intention to suspend a license.  In cases where a test is admin-
istered, the officer must have knowledge of the test results before he can
send a suspension notice.  If, as we have held, the statute contemplates
that an officer may use a crimper device, the officer will not be in a
position to give notice of an intent to suspend until the results of the
test are available.  The statute provides for this contingency by author-
izing the notice and affidavit to be sent by mail.  It is the law enforce-
ment officer, not the chemist, who has defendant's address.  Accordingly, we
hold that, where a test has been administered, the time period begins to run
when the law enforcement officer receives the test results.
     The statutory purpose is "speedy license revocation for those who
refuse a breath test or whose breath test exceeds the statutory limit[,] in
a manner fair to each defendant."  Reporter's Notes, D.C.C.R. 80.5.  Here,
the law enforcement officer received the test results on February 28, 1990.
He then completed the { 1205(a) affidavit and, the next day, mailed the
notice of intent to suspend.  In these circumstances, the one-day delay in
mailing is, as a matter of law, within { 1205(b)'s meaning of the word
"immediate."
     Further, compliance with the statutory requirement that notice be
mailed immediately is merely directory and not mandatory.  Where a statute's
language is directory, compliance is not essential to a proceeding's
validity.  See In re J.R., 153 Vt. 85, 92, 570 A.2d 154, 157 (1989).  "The
determination of whether statutory language is mandatory or directory is one
of legislative intent."  In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890,
892 (1987).  We have previously stated that "'"[a] statutory time period is
not mandatory unless it both expressly requires an agency or public official
to act within a particular time period and specifies a consequence for
failure to comply with the provision."'"  Id. at 173-74, 531 A.2d  at 892
(emphasis in original) (quoting Thomas v. Barry, 729 F.2d 1469, 1470 n.5
(D.C. Cir. 1984) (quoting Fort Worth Nat'l Corp. v. Federal Sav. & Loan Ins.
Corp., 469 F.2d 47, 58 (5th Cir. 1972))); but see Sierra Pacific Indus. v.
Lyng, 866 F.2d 1099, 1112 (9th Cir. 1989) (affirming district court
imposition of sanction pursuant to its equitable powers where government
failed to comply with statutory time period and enforcement of the deadline
served statutory purpose).  In the instant case, the statute entirely fails
to specify a consequence for failure to comply.  Dismissal would be an
unwarranted sanction and would unnecessarily undermine legislative intent of
a "speedy license revocation . . . in a manner fair to each defendant."
Defendant's legal rights were not prejudiced since the effective date for
his suspension was dependent on the date the notice of intent to suspend was
mailed, see 23 V.S.A. { 1205(b) and (d), and he did in fact receive the
notice in ample time to request a hearing pursuant to { 1205.  Accordingly,
we hold that the notice of intent to suspend validly initiated the license-
suspension procedure.
      Defendant's motion to dismiss is denied.  The trial court's decision
is reversed and the cause remanded for a hearing under 23 V.S.A. { 1205(f).


                                   FOR THE COURT



                                   __________________________________
                                   Associate Justice



FN1.    23 V.S.A. { 1205(f) provides:
	     (f) Issues at hearing.  The issues at the hearing
	shall be limited to the following:
	    (1) whether the law enforcement officer had
	reasonable grounds to believe the person was operating,
	attempting to operate or in actual physical control of a
	vehicle in violation of section 1201 of this title;
	     (2) whether at the time of the request for the
	evidentiary test the officer informed the person of the
	person's rights and the consequences of taking and
	refusing the test substantially as set out in subsection
	1202(d) of this title;
	     (3) whether the person refused to permit the test;
	     (4) whether the test was taken and the test results
	indicated that there was 0.10 percent or more by weight
	of alcohol in the blood at the time of operating,
	attempting to operate or being in actual physical
	control of a vehicle in violation of section 1201 of
	this title, whether the testing methods used were valid
	and reliable and whether the test results were accurate
	and accurately evaluated.  Evidence that the test was
	taken and evaluated in compliance with rules adopted by
	the department of health shall be prima facie evidence
	that the testing methods used were valid and reliable
	and that the test results are accurate and were
	accurately evaluated;
	     (5) whether the requirements of section 1202 of
	this title were complied with.

FN2.    23 V.S.A. { 1205(a) provides:
	  (a) Refusal; BAC of 0.10 or more; suspension periods.
	Upon affidavit of a law enforcement officer that the
	officer had reasonable grounds to believe that the
	person was operating, attempting to operate, or in
	actual physical control of a vehicle in violation of
	section 1201 of this title and that the person refused
	to submit to a test, the commissioner shall, unless the
	person requests a hearing, suspend the person's
	operating license, or nonresident operating privilege,
	or the privilege of an unlicensed operator to operate a
	vehicle for a period of six months and until the person
	complies with section 1209a of this title.  Upon
	affidavit of a law enforcement officer that the officer
	had reasonable grounds to believe that the person was
	operating, attempting to operate, or in actual physical
	control of a vehicle in violation of section 1201 of
	this title and that the person submitted to a test and
	the test results indicated that there was 0.10 percent
	or more by weight of alcohol in the blood at the time of
	operating, attempting to operate or being in actual
	physical control, the commissioner shall, unless the
	person requests a hearing, suspend the person's
	operating license, or nonresident operating privilege,
	or the privilege of an unlicensed operator to operate a
	vehicle for a period of 90 days and until the person
	complies with section 1209a of this title.

FN3.    23 V.S.A. { 1200(3) provides as follows:
	As used in this subchapter,
	. . .
	(3) "Evidentiary test" means a breath or blood test
	which indicates the weight of alcohol in a person's
	blood, as shown by analysis of the person's breath or
	blood and which is intended to be introduced as
	evidence.
        Both the infrared and crimper testing devices are evidentiary tests.