State v. Diesl

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-560

                              JUNE TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Windham Circuit
                                  }
Richard Diesl                     }
                                  }          DOCKET NO. 111-10-90WmCS


             In the above entitled cause the Clerk will enter:


     Defendant driver appeals from a district court finding pursuant to 23
V.S.A. { 1205(g) that the police officer who stopped him had reasonable
grounds to believe that he was operating a motor vehicle in violation of 23
V.S.A. { 1201 and test results indicated a BAC in excess of .10 percent or
more at the time he was operating the vehicle, which finding resulted in
suspension of his license.  We affirm.

     At the district court review hearing under 23 V.S.A. { 1205(e) the
State proceeded by affidavit, as provided in 23 V.S.A. { 1205(h).  On appeal
defendant argues that 23 V.S.A. { 1205(f)(1) requires an in-court identi-
fication of the defendant as the person who was operating a vehicle in
violation of { 1201.  That section provides:

          (f) Issues at hearing.  The issues at the hearing shall
          be limited to the following:

            (1) whether the law enforcement officer had reasonable
          grounds to believe the person was operating, attempting
          to operate or in actual physical control of a vehicle in
          violation of section 1201 of this title.

This provision focuses on the actions of the driver, not his identity.  No
in-court identification is required by the statute.  State v. Nichols, 150
Vt. 563, 565, 556 A.2d 75, 77 (1988).  Moreover, there is no question as to
defendant being the driver in this case.  He admitted in testimony that he
had been stopped by the officer on the date in question and that he had
been driving the vehicle identified in the affidavit.

     Defendant also argues that he did not receive "immediate notice of
intention to suspend" under 23 V.S.A. { 1205(b), since the arresting officer
sent the notice to suspend eleven days after the breath sample was analyzed.
Defendant's rights were not violated by the delay in the suspension process.
It is clear that the statutory language is designed to prompt officials to
act expeditiously in these matters, not to establish a ten-day (or shorter)
statute of limitations on suspensions.  Defendant was not harmed by receipt
of a notice eleven days after completion of the test.  State v. Camolli, 2
Vt. L.W. 76, 78 (Feb. 19, 1991) (the statutory language is merely directory,
and compliance is not essential to a proceeding's validity).

     Affirmed.





                                   BY THE COURT:


                                   _____________________________________
                                   Frederic W. Allen, Chief Justice


                                   _____________________________________
                                   John A. Dooley, Associate Justice


                                   _____________________________________
                                   Denise R. Johnson, Associate Justice

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