State v. Skilling

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-416

                            JANUARY TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Windham Circuit
                                  }
Patricia Skilling                 }
                                  }          DOCKET NO. 72-7-90WmCS


             In the above entitled cause the Clerk will enter:


     Defendant, whose operator's license was suspended as a result of a
civil suspension hearing under 23 V.S.A. { 1205, appealed, arguing that the
case should have been dismissed for failure to meet statutory time limits
and that certain findings are clearly erroneous.  It is undisputed that the
law enforcement officer involved did not send a notice of suspension to
defendant immediately on receiving the test results and did not mail a copy
of his affidavit to defendant within seven days of the notice to suspend.
See 23 V.S.A. { 1205(b).  Nor was the court hearing held within 30 days of
the date of the request for the hearing as required by 23 V.S.A. { 1205(e).
We have held that the requirement that the notice be mailed immediately is
directory so that "compliance is not essential to a proceeding's validity."
State v. Camolli, 2 Vt. L.W. 76, 79 (Feb. 19, 1991).  We conclude that the
other time limits involved here are also directory because the statute does
not specify any consequence for failure to comply.  See In re Mullestein,
148 Vt. 170, 174, 531 A.2d 890, 892 (1987).  Since defendant was not
prejudiced by the failure to meet the statutory time limits, the motion to
dismiss was properly denied.

     Defendant next argues that the evidence could not support a finding, as
required by { 1205(f)(2), that the officer informed her of the consequences
of "taking and refusing the test substantially as set out in subsection
1202(d)" because the officer used a form that did not fully inform defendant
of her rights under { 1202(d)(4).  We have reviewed the consent form and
find the differences between the language of the statute and the advice
given to be technical and inconsequential.  We conclude that the officer
advised the defendant of her rights "substantially" as set forth in {
1202(d).

     Defendant's last claim is that the court erred in concluding that "the
testing methods used were valid and reliable and . . . the test results were
accurate and accurately evaluated," as required by { 1205(f)(4), because
there was no evidence that the officer took the sample pursuant to Vermont
Department of Health rules.  We do not believe that the statute requires
evidence of that specificity before the court can make the findings required
by { 1205(g).  Of course, defendant is always free to offer evidence that
the test was administered in a defective fashion so that the State is
required to respond.

     Affirmed.



                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice