State v. Pitner

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 88-495

                              JUNE TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Chittenden Circuit
                                  }
James Pitner                      }          DOCKET NO.  2132-6-88CnCr


             In the above entitled cause the Clerk will enter:

     The presumption contained in 23 V.S.A. { 1204(a)(1) -- that if there
was 0.05 percent or less by weight of alcohol in a person's blood or breath,
it shall be presumed that the person was not under the influence of intoxi-
cating liquor -- is a rebuttable mandatory presumption rather than an irre-
buttable conclusive presumption.  See, e.g., Pigee v. Israel, 670 F.2d 690,
692-93 (7th Cir.) (comparing "conclusive," "mandatory," and "permissive"
presumptions), cert. denied, 459 U.S. 846 (1982); Washington v. Harris, 502 F. Supp. 1267, 1271-72 (S.D.N.Y. 1980) (same), cert. denied, 455 U.S. 951
(1982); see also Town of Dorset v. Fausett, 133 Vt. 476, 479-80, 346 A.2d 200, 203 (1975) (presumptions that are evidentiary in nature are rebuttable,
not conclusive).

     There is nothing in the statutes to indicate that the Legislature
intended to allow a driver to be slightly impaired while operating a motor
vehicle; rather, the Legislature has attempted to draw a line below which
most people would not be mentally or physically impaired.  Therefore, {
1204(a)(1) does not invalidate the instruction enunciated in State v.
Storrs, 105 Vt. 180, 185, 163 A. 560, 562 (1933), which has been repeatedly
reaffirmed by this Court.  See State v. Abbott, 151 Vt. 618, 621, 563 A.2d 640, 642 (1989); State v. Schmitt, 150 Vt. 503, 507-08, 554 A.2d 666, 669
(1988).

     Affirmed.


                                   BY THE COURT:



                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice