State v. King

EO.92-326; 160 Vt. 612; 624 A.2d 1144        


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-326

                              MARCH TERM, 1993


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 3, Caledonia Circuit
                                   }
 Donald King                       }
                                   }          DOCKET NO. 10-1-92CaCs



              In the above entitled cause the Clerk will enter:


      Defendant appeals from civil suspension of his license based on the
 district court's finding that he refused to take an infrared breath test.
 He argues that because the Department of Health had not yet promulgated
 regulations governing use of the Datamaster infrared device for which he
 refused to provide a sample, he did not refuse to submit to an "evidentiary
 test" and, therefore, did not violate the "implied consent" law.  We affirm.

      "Every person who operates ... any vehicle on a highway in this state
 is deemed to have given consent to an evidentiary test of that person's
 breath for the purpose of determining the person's alcohol concentration ...
 in the blood."  23 V.S.A. { 1202(a) (emphasis added).  An "evidentiary test"
 is "a breath or blood test which indicates the person's alcohol concen-
 tration and which is intended to be introduced as evidence."  23 V.S.A. {
 1200(3) (emphasis added).  The fact that several sections of Title 23 speci-
 fically refer to infrared devices leaves no doubt that the Datamaster test
 was meant to measure blood-alcohol concentration and was intended to provide
 samples to be introduced in evidence.  See 23 V.S.A. {{ 1202(d)(5), 1203(c)
 and (d), 1203a(c).  The failure of the Department of Health to promulgate
 regulations for analyzing infrared samples under 23 V.S.A. { 1203(d) does
 not suggest otherwise.  Moreover, there is absolutely no nexus between
 defendant's refusal to provide a breath sample and the Health Department's
 failure to promulgate regulations regarding use of the infrared device.
 Defendant does not suggest that he refused to provide a sample because
 regulations concerning use of the device had not been promulgated.  Cf.
 State v. Hamm, ___ Vt. ___, ___, 597 A.2d 1048, 1049 (1991) (defendant
 failed to show that his reason for refusing to provide a sample was related
 to his receipt of incomplete information regarding waiver of counsel).


  Affirmed.

                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
 [ ]  Publish
                                    _______________________________________
 [ ]  Do Not Publish                Denise R. Johnson, Associate Justice