State v. Pluta

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.



                                No. 91-080


State of Vermont                             Supreme Court

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

                                             September Term, 1991


Ronald F. Kilburn, J.

William H. Sorrell, Chittenden County State's Attorney, and Scot L. Kline,
   Deputy State's Attorney, Burlington, for plaintiff-appellant

David R. Cowles of Jarvis and Kaplan, Burlington, for defendant-appellee


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

     JOHNSON, J.   The State appeals from the district court's order
refusing to suspend defendant's automobile operator's license following a
civil license suspension hearing pursuant to 23 V.S.A. { 1205(m).  We
reverse.
                                    I.
     On November 10, 1990, at approximateLy 1:10 a.m., a state trooper
stopped and arrested defendant for driving while intoxicated.  A chemical
breath test conducted at 2:40 a.m., revealed that defendant's blood alcohol
content was .15%.
     Subsequently, the State served notice that it intended to suspend
defendant's license pursuant to 23 V.S.A. { 1205(g),(FN1) for "operating . . . 
a motor vehicle [with] 0.10 percent or more by weight of alcohol" in his
blood.
     During the civil license suspension hearing, the State introduced
affidavits from the arresting officer and the chemist who had tested
defendant's breath sample.  Defendant introduced an affidavit from another
chemist, Theodore Manazir, who indicated that numerous factors influence the
relationship between a driver's blood alcohol content (BAC) when he is
arrested and his BAC when tested.  He also presented general information
about average human alcohol absorption rates, and about blood alcohol
testing, such as standard error rates.  At the hearing, Manazir testified:
"it is possible for a person to have a test result over .10 percent within 2
hours of operation and be under .10 percent at the time of operation."
Manazir stated, however, that his conclusion was solely theoretical; he was
unable to render an opinion about defendant's BAC at the time of arrest
because Manazir had not analyzed defendant's case in particular.  The three
affidavits and Manazir's testimony comprised the sole evidence at the
hearing.
     The central issue at the civil suspension hearing was whether Manazir's
affidavit and testimony rebutted a presumption in 23 V.S.A. { 1205(m), which
states:
          In a proceeding under this section, if there was at any
          time within two hours of operating, attempting to
          operate or being in actual physical control of a vehicle
          an alcohol concentration of 0.10 or more, it shall be a
          rebuttable presumption that there was 0.10 percent or
          more by weight of alcohol in the blood at the time of
          operating, attempting to operate or being in actual
          physical control. (FN2)
     The district court determined  that although the State had properly
invoked the statutory presumption, it was rebutted by Manazir's affidavit
and testimony.  The court stated that even though the presumption was
rebutted, the State could have prevailed if it had introduced evidence that
related the test result back to the time of operation; "however, the State
has failed to introduce any evidence to show that there is a rational
connection between a test result of a .151[%] BAC one hour and thirty
minutes after operation and a BAC of 0.10 at the time of operation."
Defendant prevailed, then, because the State did not relate the evidence
back to show that defendant's blood alcohol content was 0.10% or higher at
the time of operation.
       The State contends on appeal that, to rebut the presumption, a
defendant must present more than a theoretical possibility that the presump-
tion may not be true in all cases; he must present evidence to show that the
presumption of intoxication for the particular defendant was untrue at the
time of operation.  The State argued that the legislature designed the 23
V.S.A. { 1205(m) presumption as "an evidentiary shortcut . . . to simplify
the suspension process by effectively avoiding the relation-back issue
except when relation back is truly called into question by the defendant
with case-specific evidence."  Defendant argues that the general information
presented by Theodore Manazir in the affidavit and at trial was sufficient
to rebut 23 V.S.A. { 1205(m)'s presumption.
     Under Vermont law, a civil presumption effectively places the burden of
going forward with the evidence on the party against whom it operates.
Rocque v. Co-operative Fire Ins. Ass'n of Vermont., 140 Vt. 321, 325-326,
438 A.2d 383, 386 (1981); V.R.E. { 301(a).  Thus, defendant had to present
evidence to rebut the presumed fact that his level of intoxication violated
the statute.  See 9 Wigmore on Evidence { 2494, at 379 (Chadbourn rev. 1981)
(a presumption imposes on the party against whom it operates the burden of
producing evidence sufficient to defeat the presumed fact).  To satisfy that
burden, defendant was not required to "overcome" the presumption with evi-
dence.  Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 23-24, 192 A. 184, 192
(1937); Rocque, 140 Vt. at 326, 438 A.2d  at 386.  He was required only to
produce evidence sufficient to support a finding that his blood-alcohol
level was under 0.10 percent at the time of operation.  See Fidelity &
Deposit Co. of Maryland v. Wu, 150 Vt. 225, 228, 552 A.2d 1196, 1198 (1988)
(to rebut a statutory presumption, a defendant need only produce evidence
sufficient "to get to the jury on the issue.")
     To rebut a statutory presumption the opponent's evidence must do more
than raise a mere theoretical possibility that the presumed fact does not
exist.  See Insurance Co. of North America v. Millers' Mutual Ins. Ass'n of
Illinois, 139 Vt. 255, 258, 427 A.2d 354, 355 (1981) (party using automobile
with permission raises proper use presumption; rebutting presumption
requires specific evidence that consent was withdrawn or use was major
deviation from consent given).  Otherwise, the use of a presumption to
shift the burden of going forward with certain evidence would be
meaningless.  Since a rebuttable presumption already assumes that the
presumed fact will not be true in all cases, it is not rebutted simply by
recognizing the possibility that it can be rebutted.  To fairly put the
presumed fact in issue, specific evidence is required to that show that the
presumed fact was not true in the particular case, given its actual
underlying facts and circumstances.
     In the instant case, defendant's evidence was insufficient to defeat
the statutory presumption that a person is intoxicated at the time of
operation if his BAC within two hours of operation is .10 percent or more.(FN3)
The trial court erred in concluding that evidence of a general, theoretical
nature was sufficient to rebut 23 V.S.A. { 1205(m)'s presumption.  Cf.
Rocque, 140 Vt. at 326, 438 A.2d  at 386 (party trying to defeat presumption
that mailed letter was received must introduce specific nonreceipt
evidence); Gardner v. Department of Social Welfare, 135 Vt. 504, 508, 380 A.2d 87, 90 (1977) (party's burden to rebut presumption that personal funds
were transferred to allow qualification for Medicaid could be met by pro-
viding specific evidence of "some external event triggering the transfer of
funds.").  Such a holding defeats the obvious purpose of the statute, which
is to shift the burden of submitting relation-back evidence to the party
most able to provide it.  Reporter's Notes, V.R.E. 301.
     Defendant contends that our holdings in State v. Rollins, 141 Vt. 105,
110, 444 A.2d 884, 886-87 (1982), and State v. Dumont, 146 Vt. 252, 254, 499 A.2d 787, 788 (1985), require the State to establish that defendant was
actually intoxicated at the time of operation.
     Rollins and Dumont both involved criminal prosecutions for driving
under the influence.  Neither implicated the precise presumption at issue in
a civil license suspension hearing under 23 V.S.A. { 1205 and they are not
relevant to this appeal.  The purpose of the { 1205(m) presumption is
elimination of the necessity for the State to introduce evidence that
relates a breath test result back to the time of operation.  Requiring the
State to produce relation-back evidence would be to nullify the presumption.
     Reversed and remanded.




                                        FOR THE COURT:



                                        ______________________________
                                        Associate Justice



FN1.   23 V.S.A. { 1205(g), which was amended in 1991, forms the substance
of what is now { 1205(h).  The section relevant to this case stated, in
part:

     Upon a finding by the court that the law enforcement officer had
reasonable grounds to believe that the person was operating, attempting to
operate, or in actual physical control of a vehicle in violation of section
1201 of this title and that the person submitted to a test and that the test
results indicated that there was 0.10 percent or more by weight of alcohol
in the blood at the time the person was operating, attempting to operate or
in actual physical control, the court shall forward the report of the
hearing to the commissioner who shall suspend the person's operating
license, or nonresident operating privilege, or the privilege of an
unlicensed operator to operate a vehicle for a period of 90 days and until
the person complies with section 1209a of this title.

FN2.   This subsection has been amended, but only to change the blood alcohol
content intoxication presumption to .08%.

FN3.  Defendant argued orally that he was attacking the presumption's
validity, and not the sufficiency of the evidence used to rebut it.  No such
argument was made in the trial court or briefed in this Court, however, and
we will not consider it.