State v. Singer

State v. Singer (98-578); 170 Vt. 346; 749 A.2d 614

[Filed 04-Feb-2000]


       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. 98-578


State of Vermont	                         Supreme Court

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

Eldon W. Singer	                                 January Term, 2000



Howard E. Van Benthuysen, J.


       Lauren Bowerman, Chittenden County State's Attorney, and John R.
  Treadwell, Deputy State's  Attorney, Burlington, for Plaintiff-Appellant.

       Paul D. Jarvis and Robert S. Behrens of Jarvis and Kaplan, Burlington,
  for Defendant-Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.    The State appeals from the district court's dismissal
  of the civil license  suspension proceeding against defendant Eldon Singer. 
  The court dismissed the matter because a  final hearing could not be held
  within forty-two days of the date of the alleged offense, and the State 
  had not shown good cause for the delay.  See 23 V.S.A. § 1205(h).  We
  affirm.

       The relevant facts are not in dispute.  On October 17, 1998, defendant
  was charged with  driving while intoxicated (DWI), in violation of 23
  V.S.A. § 1201.  The police officer who charged  defendant did not
  administer a breath test; rather, defendant was taken to Fletcher Allen
  Health Care,  where a sample of his blood was obtained.  On December 9,
  1998, the officer delivered to defendant  a notice of intent to suspend his
  driver's license.  See id. § 1205(c).  On December 11, 1998,  defendant
  requested a hearing before the district court on the issue of license
  suspension.  See id.  § 1205(f).

 

       The court held a preliminary hearing on December 24, 1998, see id. §
  1205(g), at which time  defendant asked the court to dismiss the civil
  suspension proceeding because a final hearing could  not be held within
  forty-two days of the date of the alleged offense as required by statute. 
  See id.  § 1205(h).  The State argued that the language of §1205(h) was
  directory, not mandatory, and that  it had good cause for the delay in this
  case because defendant had been given a blood test.   According to the
  State, a blood test is per-se good cause.  The court disagreed, holding
  that the  language of the statute was mandatory, and that the fact that the
  state was relying on a blood test,  rather than a breath test, was not, in
  and of itself, good cause for the delay.  The State appealed  pursuant to
  23 V.S.A. § 1205(k).

       The State argues that the court erred in dismissing the civil
  suspension proceeding because  (1) the above-quoted language of 23 V.S.A. §
  1205(h) is directory, not mandatory, (2) a blood test  is per-se good
  cause, and (3) the court did not give the State an opportunity to develop
  its argument  that a blood test is per-se good cause.  We address these
  arguments in order.

       23 V.S.A. § 1205(h) states, in relevant part:

     If the defendant requests a hearing on the merits, the court shall 
     schedule a final hearing on the merits to be held within 21 days of the 
     date of the preliminary hearing.  In no event may a final hearing occur 
     more than 42 days after the date of the alleged offense without the 
     consent of the defendant or for good cause shown.  The final hearing 
     may only be continued by the consent of the defendant or for good 
     cause shown.

       According to the State, the statute does not specify a consequence for
  failure to comply with  the forty-two-day time limit, and therefore, the
  statute is directory, not mandatory.  We disagree. 
	
       As we have previously stated, "[t]he 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).  
  In Mullestein, we held that a statutory time limit is directory when it
  "'directs the  manner of doing a thing, and is not of the essence of the
  authority for doing it.'"  Id. at 174, 531 A.2d  at 892-93 (quoting Warner
  v. Mower, 11 Vt. 385, 394 (1839)).  In other words, the language  of a
  directory statute "relates to procedure."  Id., 531 A.2d  at 893.  See also
  State v. Camolli, 156 Vt.  208, 

 

  214, 591 A.2d 53, 57 (1991) ("Where a statute's language is directory,
  compliance is not essential  to a proceeding's validity.").  On the other
  hand, a statutory time limit is mandatory only if it  contains both an
  express requirement that an action be undertaken within a particular amount
  of time  and a specified consequence for failure to comply with the time
  limit.  See Mullestein, 148 Vt. at  174, 531 A.2d  at 892-93.  Thus,
  "[w]here the Legislature has intended a time limit to be mandatory,  it has
  clearly expressed that intent."  Id., 531 A.2d  at 893.

       As noted, 23 V.S.A. § 1205(h) provides, in pertinent part:  "In no
  event may a final hearing  occur more than 42 days after the date of the
  alleged offense without the consent of the defendant  or for good cause
  shown."  Thus, in the event the court cannot, or does not, hold a final
  hearing until  more than forty-two days after the date of the alleged
  offense, the Legislature has specified a  consequence:  no hearing is to
  occur on the matter.  Therefore, the time requirement does not relate 
  merely to procedure, nor does it simply direct the manner of holding a
  civil license suspension  hearing.  Rather, the forty-two-day requirement
  is "'of the essence of the authority'" for holding a  license suspension
  hearing.  Id., 531 A.2d  at 892-93  (quoting Mower, 11 Vt. at 394).  Here,
  by  providing for a consequence for failure to comply with the mandated
  time limit, the Legislature has  clearly expressed its intent that the time
  limit be mandatory.

       This is in contrast to the statutes at issue in Mullestein and
  Camolli, relied upon by the State.  In Mullestein, Linda Mullestein (the
  applicant) applied for an architect's license from the Vermont  Board of
  Registration of Architects' (Vermont Board).  As a prerequisite to
  licensure, the Vermont  Board required, among other things, a passing grade
  on the national standardized design exam.  The  applicant took the design
  exam in June 1982.  Pursuant to the Vermont Board's procedures, exams  were
  graded first by the National Council of Architectural Registration Boards
  and subsequently  graded independently by the Vermont Board.   If the two
  grade results differed, the exam was sent  back to the National Board for
  regrading.  In Mullestein's case, the two boards reached different 
  results: the National Board determined that she had passed, the Vermont
  Board determined she had  failed.  Following a re-grading, the National
  Board agreed with the result reached by the Vermont 

 

  Board.  On December 27, 1982, 194 days after the applicant had taken the
  exam, the Vermont Board  informed her that she had failed the exam.

       On appeal to this Court, the applicant pointed out that, under the
  architect licensing statute,  26 V.S.A. § 201(b), the Vermont Board was
  required to notify her of the results of the exam within  sixty days of the
  date she had taken it.  See Mullestein, 148 Vt. at 173, 531 A.2d  at 892
  ("[The  applicant] shall, in order to become registered, pass written
  examinations under a syllabus prepared  by the board . . . .  Notification
  of the results . . . shall be mailed to each candidate within sixty days 
  thereafter.") (quoting 26 V.S.A. § 201(b)).  She argued that the sixty-day
  time limit was mandatory,  and that, after sixty days had expired, the
  Vermont Board had no authority to take any action with  regard to her exam,
  and thus was required to accept the initial passing grade.  We disagreed,
  holding  that the language of the architect licensing statute provided no
  consequence for failure to meet the  statutory time limit.  As we stated,
  "its language relates to procedure:  it 'directs the manner of doing  a
  thing, and is not of the essence of the authority for doing it.'"  Id., 531 A.2d  at  892-93 (quoting  Warner, 11 Vt. at 394).  Therefore, we held that
  the language of 26 V.S.A. § 201(b) was directory,  not mandatory, and
  upheld the Vermont Board's decision.

       In Camolli, the defendant was stopped by a state trooper and processed
  for DWI on January  21, 1990.  The trooper administered a breath test using
  a gas chromatography (crimper) device.  He  received the lab report on
  February 28, 1990, and, the next day, mailed the defendant a notice of 
  intention to suspend his driver's license.  The defendant timely requested
  a civil license suspension  hearing.  At the hearing, the defendant moved
  to dismiss the civil license suspension proceeding.  The district court
  granted the motion, holding that (1) under 23 V.S.A. § 1205(a), evidence
  obtained  from a crimper device could not be used in a civil license
  suspension proceeding; only evidence  obtained from infrared testing
  equipment could be used, and (2) the trooper failed to serve the  defendant
  with "immediate notice" of intention to suspend his license, as required by
  23 V.S.A.  § 1205(b).  Camolli, 156 Vt. at 210, 591 A.2d  at 54-55.  We
  concluded that the court erred on both  grounds.

 

       On the issue of whether the trooper had complied with the statute's
  notice requirement, we  held that the language of 23 V.S.A. § 1205(b) was
  directory, not mandatory, and therefore, a failure  to timely serve the
  defendant with notice did not require dismissal of the proceeding.  23
  V.S.A.  § 1205(b), provided, in pertinent 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."  Id. at 213, 591 A.2d 
  at 56 (quoting 23 V.S.A. § 1205(b)).  However, as we noted, "the statute 
  entirely fails to specify a consequence for failure to comply."  Id. at
  215, 591 A.2d  at 57.  Therefore,  we concluded, the requirement of
  immediate notice was directory, not mandatory, and the district  court
  erred in dismissing the case. 

       The State also relies on State v. Skilling, 157 Vt. 647, 595 A.2d 1346
  (1991) (mem.).  There,  the defendant's driver's license was suspended
  pursuant to 23 V.S.A. § 1205.  On appeal, he argued,  among other things,
  that the proceeding should have been dismissed because the court did not
  hold  a hearing within the statutory time limit.  At that time, the time
  limit was contained in 23 V.S.A.  § 1205(e), which provided:  "Unless
  continued for good cause shown, the hearing shall be held not  later than
  30 days from the date the request for hearing is received by the
  commissioner."  1991 No.  55 § 6.  In Skilling, we held that the thirty-day
  time limit contained in 23 V.S.A. § 1205(e) was  directory "because the
  statute [did] not specify any consequence for failure to comply."  Id. at
  648,  595 A.2d  at 1347.

       Since our decision in Skilling, the statute has been amended.  The
  statutory time limit now  appears in 23 V.S.A. § 1205(h), quoted above, and
  contains an express consequence for failure to  meet the time limit
  imposed.  The legislature was clear: if the hearing is not held within the
  requisite  time limit, no hearing is to be held. Our decision herein is
  akin to that of Glabach v. Sardelli, 132 Vt. 490, 321 A.2d 1 (1974), 
  overruled on other grounds by Leo's Motors, Inc. v. Town of Manchester, 158
  Vt. 561, 613 A.2d 196 (1992).  There, we held that the language of 24 V.S.A. § 4470(a), a
  zoning statute, was  mandatory, not directory.  See id. at 495, 321 A.2d  at
  5.  The governing statute in Sardelli, provided  that, "[i]f the board does
  not render its decision within the period prescribed by this chapter, the 
  board shall be deemed to have rendered a decision in favor of the appellant
  and granted the relief  requested by him on the last day of such period."
  24 V.S.A. § 4470(a).  Thus, the language of 24  V.S.A. § 4470(a) expressly
  provided for a consequence for the Board's failure to meet the statutory 
  time limit.

       Finally, it bears noting that, if the Legislature had intended for the
  forty-two-day time limit  to be directory and not mandatory, it would not
  have included exceptions.  Indeed, if the time limit  were directory, the
  State would have no need to justify a delay by demonstrating that it had
  either  the defendant's consent or good cause.  Thus, if the time limit
  were directory, the statutory  exceptions would be mere surplusage, a
  result we avoid in interpreting statutes.  See State v.  Hatcher, 167 Vt.
  338, 343-44, 706 A.2d 429, 432 (1997) ("Defendant's construction of the
  statute  would render the deliberation element of first-degree murder mere
  surplusage, a result which we  have repeatedly cautioned against.");
  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.").

       Therefore, we conclude that the language of 23 V.S.A. § 1205(h) is
  mandatory: if a final  hearing is not held within forty-two days of the
  date of the alleged offense, the civil license  suspension proceeding must
  be dismissed unless the State demonstrates either that it had the 
  defendant's consent or good cause for the delay.  We next discuss whether,
  in this case, the State has  demonstrated good cause.

       The State argues that it had good cause for the delay because
  defendant was given a blood  test rather than a breath test.  According to
  the State, obtaining a blood test is per-se good cause.  We  disagree.  

 

       First, as the trial court noted, in enacting the civil license
  suspension statute, the Legislature  did not distinguish between types of
  tests.  As we noted in Camolli, "the statute speaks generally in  terms of
  'a test.'"  Camolli, 156 Vt. at 212, 591 A.2d  at 56 (quoting 23 V.S.A. §
  1205(a)).  Had the  Legislature intended to distinguish between a blood
  test and a breath test for purposes of good cause,  it would have included
  language to that effect.  See id. at 213, 591 A.2d  at 56. 

       Furthermore, whether good cause exists is a mixed question of fact and
  law.  See, e.g., State  v. Palmer,         Vt.        ,        , 740 A.2d 356, 358 (1999); State v. Ahearn, 137 Vt. 253, 263, 403 A.2d 696, 703
  (1979).  In some cases, difficulty in capturing or analyzing a blood test,
  for example,  may provide good cause for a delay.  Here, however, the State
  neither presented, nor attempted to  present, any facts to support a
  finding of good cause other than simply stating that a blood test was 
  involved.  Therefore, the court did not err in concluding that the State
  failed to show good cause for  the delay.

       Finally, the State argues that the court erred, and the case should be
  remanded, because the  court did not allow the State to develop its
  argument that there was good cause for a delay.   However, an examination
  of the transcript reveals that the State had a sufficient opportunity to 
  develop its argument at the hearing.  There was no error.

       Affirmed.



                                       FOR THE COURT:


                                       

                                       ______________________________________
                                       Associate Justice