State v. Brooks

STATE_V_BROOKS.93-018; 162 Vt. 26; 643 A.2d 226

[Opinion Filed November 29, 1993]

[Motion for Reargument Denied May 3, 1994]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.



                                 No. 93-018

 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Franklin Circuit

 Gerald H. Brooks                             September Term, 1993




 Edward J. Cashman, J.

 Gary S. Kessler, Supervising Appellate Prosecutor, State's Attorneys and
    Sheriffs Department, Montpelier, for plaintiff-appellant

 Jeffrey L. Amestoy, Attorney General, Montpelier, and William F. Wargo,
    Assistant Attorney General, Burlington, for Department of Health

 Steve Dunham, Public Defender, St. Albans, for defendant-appellee



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



      MORSE, J.  The State appeals from the district court's interlocutory
 ruling that evidence of blood-alcohol content (BAC) measured by DataMaster
 infrared testing device is inadmissible in either a DUI civil suspension or
 a DUI criminal proceeding.  Well over one-hundred cases were joined and
 governed by the court's ruling.  We reverse.
      While driving a motor vehicle on Route 7 in St. Albans, defendant was
 stopped by a state trooper for an equipment defect.  During the stop, the
 trooper suspected defendant was DUI and conducted field sobriety tests.
 Defendant eventually submitted to a DataMaster breath test, resulting in a

 

 BAC reading of .175%.  Defendant requested a second DataMaster test, which
 was performed shortly after the first.  The second test resulted in a BAC of
 .183%, a reading that deviated slightly less than 5% from the first.
 Defendant was then charged with DUI.
      Defendant moved to exclude the DataMaster test results on grounds that
 the Department of Health had not properly promulgated rules to trigger a
 presumption of validity under 23 V.S.A. { 1203(d) ("analysis performed by
 the state shall be considered valid when performed according to a method or
 methods selected by the department of health") and because the Datamaster
 testing device did not conform to department performance standards.  The
 court held the department had not satisfied the statute's rulemaking
 requirement.  This determination was not appealed and is not before us.
      The sole issue on appeal is whether the State is precluded from
 demonstrating the scientific reliability of the DataMaster infrared testing
 equipment and testing methodology, in general, and the trustworthiness of
 defendant's test result in particular.  The trial court ruled that even if
 the State could show, without using the statutory presumption, that the test
 results were reliable, they would nonetheless be inadmissible.  The court
 acknowledged that its ruling directly contradicted our holding in State v.
 Mills, 133 Vt. 15, 17, 328 A.2d 410, 411-12 (1974) (even if presumption of
 test's validity is not triggered, test results are admissible upon proper
 evidentiary foundation), but contended that Mills did not apply following
 the amendment of 23 V.S.A. { 1203, the statute governing the admissibility
 of the test.  Defendant now urges that the amended version of 23 V.S.A. {
 1203 requires a reevaluation of Mills.
      In Mills, defendant contended that 23 V.S.A. { 1203(a) required the
 Department of Health to adopt rules for chemically testing breath samples

 

 before a given test result was admissible in a DUI prosecution.  Id. at 16-
 17, 328 A.2d  at 411.  At the time Mills was decided, 23 V.S.A. { 1203(a)
 provided:
           Chemical analysis of the person's breath or blood shall
           be considered valid under the provisions of this section
           when performed according to methods approved by the de-
           partment of health.
      In 1975 the legislature amended that section, requiring that infrared
 testing methods be adopted by rulemaking and that such tests "shall be
 analyzed in compliance with rules adopted by the department of health." 23
 V.S.A. { 1203(d) (emphasis added). The legislature also provided an identi-
 cal presumption of validity, stating: "[Infrared breath] analysis performed
 by the state shall be considered valid when performed according to a method
 or methods selected by the department of health."  Id.  The one difference
 -- an explicit mandate for rulemaking in the amended version -- is the basis
 for defendant's contention that Mills is distinguishable and not contrary
 to the court's ruling that DataMaster evidence is inadmissible.
      The trial court's initial rejection of the State's offer of the
 DataMaster evidence under a presumption of validity was mandated by { 1203
 (d) because rulemaking had not been properly conducted.  The court, however,
 went further and inferred that { 1203(d) required suppression of the Data-
 Master results in any instance where rulemaking was not accomplished.  This
 position is not borne out by analogous cases.  In the absence of a specific
 legislative sanction, it is improper to infer consequences not provided in
 the statute.  See, e.g., State v. Skilling, 157 Vt. 647, 648, 595 A.2d 1346,
 1347 (1991) (statutory time periods to give notice and hold hearing in civil
 suspension for DUI, with no sanction provided for failure to comply, are
 directory only; consequences for failure to comply may not be judicially
 inferred); see also In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890, 892-93

 

 (1987) ("In the absence of express statutory language to the contrary," 26
 V.S.A. { 201(b)'s requirement that candidates for architect's license be
 notified of exam results within 60 days is merely directory.).  Furthermore,
 when interpreting the notice requirement for a license suspension under 23
 V.S.A. { 1205(d), we held that the statute, with no mandated sanction for
 failure to comply, did not warrant the trial court's dismissal of charges
 against defendant for the State's alleged failure to give immediate notice
 within the time allotted.  State v. Camolli, 156 Vt. 208, 215, 591 A.2d 53,
 57 (1991).
      Compliance with the statutory rulemaking requirement is mandatory only
 to the extent that the State wishes to benefit from the presumption of
 validity.  The statute does not state or imply that department rulemaking
 is a prerequisite to admissibility.  The trial court's reliance on { 1203(d)
 as a ground for denying admission of the Datamaster results was erroneous.
 Without a statutory basis for excluding the DataMaster test, the rules of
 evidence determine whether defendant's BAC results are admissible.
      DUI test results may be proved by traditional evidentiary means, for,
 as we noted in Mills, despite the department's duty to use rulemaking,
 "[t]he judiciary has long had available to it a procedural and evidentiary
 framework to determine the validity of chemical analysis to establish
 [BAC]."  Mills, 133 Vt. at 17, 328 A.2d  at 411.  This evidentiary framework,
 though not fully articulated in Mills, finds its foundation in the Vermont
 Rules of Evidence promulgated nearly a decade after Mills was decided.  See
 V.R.E. 702-705 (rules for expert testimony and scientific evidence); see
 also V.R.E. 104(a) (preliminary questions of admissibility); V.R.E. 401-403
 (relevance, admissibility, and exclusion of relevant evidence).

 

      Traditionally, the standard most widely applied for admissibility of
 scientific evidence was the Frye test, which allowed admission of scientific
 evidence if it was generally accepted as reliable in the relevant scientific
 community.   Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)  The
 United States Supreme Court, however, recently held that the Frye test's
 restrictive view of admissibility was "superseded by the adoption of the
 Federal Rules of Evidence."  Daubert v. Merrell Dow Pharmaceuticals, Inc.,
 113 S. Ct. 2786, 2793 (1993).  In overruling the Frye test, the Court stated
 that "a 'general acceptance' requirement, would be at odds with the 'liberal
 thrust' of the Federal Rules and their 'general approach of relaxing the
 traditional barriers to opinion testimony.'"  Id. at 2794 (quoting Beech
 Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)).  The Court further
 noted that decisions to admit evidence under F.R.E. 702 should be considered
 in context with the general requirements of admissibility of relevant evi-
 dence contained in F.R.E. 402 and 403, and in light of F.R.E. 104(a).  Id.
 at 2794-96.  Similar principles should apply here because Vermont's rules
 are essentially identical to the federal ones on admissibility of scientific
 evidence.
      In Mills, the Court observed:
             "It is not required that the results of accepted
           chemical testing methods be infallible to be admissible.
           If the test affords reasonable assistance to the triers
           of the fact, technical shortages in the manner or method
           of proof may affect its weight but do not control its
           admissibility."
 133 Vt. at 17, 328 A.2d  at 411-12 (quoting State v. Magoon, 128 Vt. 363,
 367, 264 A.2d 779, 781 (1970)) (emphasis added).  Compare this standard with
 that for expert testimony articulated in V.R.E. 702:
         If scientific, technical, or other specialized knowledge
         will assist the trier of fact to understand the evidence
         or to determine a fact in issue, a witness qualified as

 

         an expert by knowledge, skill, experience, training, or
         education, may testify thereto in the form of an opinion
         or otherwise.
 V.R.E. 702 (emphasis added).  Like any case in which scientific "facts" are
 at issue, the State should not be precluded from proving the reliability and
 accuracy of the DataMaster's infrared breath analysis with expert opinion.
 A contest over the "science" or the specific result may be decided by the
 trier of fact by weighing the expert testimony.
      The trial court, on the other hand, believed that any "battle of the
 experts" would be against the legislative intent for efficient and speedy
 resolutions of DUI cases.  It determined that allowing scientific evidence
 would not only be inefficient and time-consuming, given the substantial
 number of DUI prosecutions and civil suspensions heard, but would also be
 prohibitively expensive for the litigants.  We doubt the burden is as great
 as the court predicted, and, although judicial economy and timeliness of
 disposition are important interests in the dispensation of justice, they
 cannot by themselves overcome the legislative mandate.
      For the past two decades and during several amendments to the statutory
 scheme, the legislature has seen fit to let our interpretation in Mills
 stand.  See In re Dixon, 123 Vt. 111, 115, 183 A.2d 522, 524 (1962) (that
 legislature had not seen fit to change the law tended to confirm propriety
 of earlier opinion).  Further, if this law is to be changed "after having
 been consistently applied over a considerable period of time, then it is the
 legislature which should make the change, for 'it is . . . the legislature,
 not the courts, which has both the right and duty under our State Constitu-
 tion to make the laws.'"  State v. Begins, 148 Vt. 186, 191, 531 A.2d 595, 598 (1987) (Gibson, J., dissenting) (quoting Langle v. Kurkul, 146 Vt. 513,
 528, 510 A.2d 1301, 1310 (1986) (Peck, J., dissenting)).  We have been

 

 offered no persuasive reason to blunt the pointed intent of the legislature
 in passing the present DUI law, "to promote public safety and welfare and
 to lessen, so far as possible, the danger to the public from intoxicated
 persons driving on the highways."  State v. Mastaler, 130 Vt. 44, 47, 285 A.2d 776, 778 (1971).
      The trial court further reasoned that the DataMaster infrared test did
 not meet regulatory performance criteria.  The Department of Health Regula-
 tion, Breath and Blood Alcohol Analysis 1(b), effective April 4, 1990,
 states:
         Analytical instrumentation shall be capable of analyzing
         replicate portions of a known alcohol sample with a
         precision of plus or minus 5% from their mean.  The
         instrumentation shall be capable of determining the
         blood alcohol concentration of the person sampled with
         an accuracy of plus or minus 10%. (FN1)
 (Emphasis added.)  Unlike the crimper test, which captures a single exhaled
 breath in three segments of an indium tube for analysis, the DataMaster
 infrared test collects different breaths exhaled at separate times.  In its
 decision, the trial court noted that it had seen other cases where the
 DataMaster had failed to analyze replicate breaths with an accuracy of plus
 or minus 5% from their mean.  It therefore concluded that the department

 

 standard could not be achieved with the DataMaster and that evidence
 gathered by the machine must not be admitted.
      The language of the department regulation, however, defines the 5%
 deviation standard as a laboratory calibration requirement for the Data-
 Master, not, as the trial court asserted, a field performance criterion.  In
 State v. Robitaille, we explained that the 5% deviation standard applied to
 the one breath crimper test, stating:
           The reason for the test of the second sample is to check
           the reliability of the first.  The integrity of the
           testing may be in doubt due to flaws in the testing
           equipment, the taking of the sample, or the sampling
           equipment.  If the two tests produce similar results,
           the validity of the results is relatively high according
           to departmental regulation.  If the two results vary
           more than 5% of their mean, however, the integrity of
           the tests is sufficiently in doubt to warrant discarding
           the results.
 151 Vt. 380, 382, 561 A.2d 412, 413 (1989); see also State v. Dole, 141 Vt.
 493, 494, 449 A.2d 979, 980 (1982) (when using crimper test, "regulations
 adopted pursuant to 23 V.S.A. { 1203(a) require two consistent samples for a
 valid analysis").  Given that the DataMaster infrared testing device
 analyzes two separate breaths, the 5% deviation rule will not apply.
 Regardless of the deviation rule applied, however, there is no evidence in
 this case that either standard was violated.  In fact, the analysis of
 defendant's two separate breaths were within 5% of their mean.
      In summary, the truth or falsity of an alleged scientific "fact" is
 not at issue in this appeal.  DataMaster's trustworthiness as an "evident-
 iary test" under 23 V.S.A. { 1200(3) is still an open question, but, because
 the same issue may be determined under V.R.E. 104(a), the court's refusal to
 admit any evidence concerning the DataMaster process and results was errone-
 ous.

 

      Reversed and remanded.


                                    FOR THE COURT:



                                    ________________________________
                                    Associate Justice

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                                Footnotes


FN1.        The 1992 Breath and Blood Alcohol Analysis
 regulations C(I)(2) and C(I)(3), methods for breath-
 alcohol analysis, are essentially identical to the 1990
 regulation 1(b) in regard to analytical accuracy
 requirements. They state:
        C(I)(2).  Analytical instrumentation shall be
 capable of analyzing replicate samples of breath con-
 taining a known amount of alcohol with a precision of
 plus or minus 5% from their mean when alcohol concen-
 trations are reported to three significant figures.
        C(I)(3).  Analytical instrumentation shall be
 capable of determining the blood or breath alcohol con-
 centration of the person sampled with an accuracy of
 plus or minus 10%.