State v. Wells

State v. Wells (2000-485); 172 Vt. 603; 779 A.2d 680

[Filed 02-Aug-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-485

                               MAY TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 3, Orleans Circuit
                                       }
Kim Marie Wells	                       }	DOCKET NO. 55-9-00 Oscs

                                                Trial Judge: Howard E. VanBenthuysen


             In the above-entitled cause, the Clerk will enter:


       Defendant Kim Wells appeals from a district court decision suspending
  her driver's license  after a civil suspension merits hearing pursuant to
  23 V.S.A. § 1205.  She contends that the district  court (1) erroneously
  applied the burden of proof in weighing her claim that the Datamaster
  breath  analysis test does not comply with the performance standards of the
  Heath Department breath  analysis rules, and (2) erred in concluding that
  the evidence submitted below was sufficient to find  that the Datamaster
  complies with pertinent Health Department breath analysis rules.  We
  affirm.

       At approximately 2:15 a.m. on September 2, 1999, a state police
  officer followed defendant's  car, without turning on the emergency lights,
  until it turned into a school parking lot. He stopped  behind it. 
  Defendant stepped out of her car and "walked in a large arc . . . stumbling
  as she did so."   Her speech was slurred, "and her eyes were watery and
  bloodshot."  She admitted to drinking  alcohol, and "tested positive for
  the presence of alcohol on the Alco Sensor preliminary breath  screening
  test.  She was unable to complete the walk and turn dexterity test
  successfully . . . . [S]he  failed the one-leg-stand test."  Consequently,
  the officer processed defendant for DWI, and brought  her to the police
  station.

       At the station, defendant was read her Miranda rights, as well as her
  implied consent rights  pursuant to 23 V.S.A. § 1202.  Defendant indicated
  that she wished to speak to an attorney before  deciding whether to take
  the breath test.  She concluded her conversation with an attorney at 3:08 
  a.m.  At 3:59 a.m. defendant gave a breath sample on a Datamaster machine,
  which registered .128%  BAC.

       To be considered valid, Vermont Department of Health regulations
  require all breath-testing  devices to measure alveolar, or deep-lung, air. 
  Datamaster devices require the subject to exhale for  six to eight seconds
  to ensure the expiration of deep-lung air.  The Datamaster will 
  not accept a 

 

  breath sample which does not exceed a specified volume, duration and
  minimum flow rate to ensure  that alveolar air is collected.  

       At defendant's final civil suspension hearing, she contested the
  validity of the Datamaster  testing device, arguing that such devices
  cannot accurately measure alveolar air.  To support her  claim, defendant
  submitted the affidavit of Dr. Michael Hlastala, an expert on pulmonary gas 
  exchange.  According to Dr. Hlastala's mathematical modeling, "there is
  little or no alcohol in  alveolar air and . . . any alcohol transported by
  exhaled breath comes from airway surfaces, not the  alveolar area of the
  lungs."  The State submitted the affidavit of Department of Health chemist
  Ted  Manazir, an expert on breath and blood alcohol analysis, the operation
  of breath-testing devices, and  the rate of absorption and elimination of
  alcohol in the human body.  According to Mr. Manazir's  affidavit, the
  Datamaster "analyzes a subject's expired alveolar, or deep lung, air." 
  Both experts  agreed that due to changes in air temperature from the lungs
  to the mouth, the alcohol concentration  in exhaled air is lower than that
  of alveolar air.  In other words, the Datamaster under-reports breath 
  alcohol levels.

       The court found that the Datamaster machine was working properly when
  defendant gave her  breath sample, and that the sample exceeded the legal
  BAC limit of 0.08%.  The court further found  that although "Dr. Hlastala
  has done extensive theoretical work on the question of alcohol exchange  in
  the human body," his attack on the validity of Datamaster testing was
  "highly theoretical."  The  court stated, "Dr. Hlastala characterizes his
  work as a 'working hypothesis'. . .  a theory which is  subject to
  scientific verification and testing."  Basing its decision on Mr. Manazir's
  affidavit, the  court found that Datamaster devices measure the alcohol
  content of expired lung air, and satisfy the  Department of Health
  statutory performance standards.  Citing State v. Pluta, 157 Vt. 451, 600 A.2d 291 (1991), the court held that defendant's theoretical attack was
  not sufficient to overcome the  statutory presumption of validity set forth
  in 23 V.S.A.§ 1205(h)(4).

       On appeal, defendant claims that the court erred in concluding that
  the Datamaster complied  with pertinent Department of Heath rules. 
  According to defendant, the court incorrectly applied a  "post-admission"
  standard in evaluating her evidence contesting the Datamaster's validity in
  testing  expired alveolar air. 

       Section 1205(h) establishes the framework for the summary procedures
  of a final civil  suspension hearing, limiting the issues to, inter alia:

    whether the [breath] testing methods used were valid and reliable
    and  whether the test results were accurate and accurately
    evaluated.  Evidence  that the test was taken and evaluated in
    compliance with rules adopted by  the department of health shall
    be prima facie evidence that the testing  methods used were valid
    and reliable and that the test results are accurate  and were
    accurately evaluated.  

 

  23 V.S.A. §1205(h)(4). As we explained in State v. Rolfe, 166 Vt. 1, 13-14,
  686 A.2d 949, 957-58  (1996), evidence of validity provides a foundation
  for admissibility of the breath test.  "Defendants  are free to offer
  evidence to contest the foundation facts." Id. at 13, 686 A.2d  at 957. The 
  presumption of validity as set forth in the statute "arises only after the
  test result is admitted."  Id. at  14, 686 A.2d  at 958.

       The defendant's theory of error in this case rests on two predicate
  assumptions.  The first is that  the court - in evaluating the sufficiency
  of the State's evidence as well as defendant's evidence  challenging the
  foundational facts regarding the validity and reliability of the breath
  testing method - gave the State the benefit of a presumption of validity
  and reliability. The second is that the affidavit  of the State's expert
  submitted to demonstrate that the Datamaster device is a valid and reliable 
  testing method was "conclusory" and therefore an insufficient evidentiary
  foundation for  admissibility of the breath test.  We do not accept either
  of the assumptions that underlie defendant's  argument.

       Defendant - by parsing ambiguous language in the trial court's
  decision - contends that the  trial court: (a) incorrectly applied the
  reasoning of State v. Pluta, 157 Vt. 451, 454, 600 A.2d 291,   293 (1991),
  to the court's evaluation of the evidence of validity and reliability of
  the breath testing  method; and, (b) in so doing, afforded the State a
  "presumption of admissibility" without which the  State could not have
  established the factual foundation necessary for admissibility of the
  breath test.   Although the trial court did state that "Pluta is not
  limited, either by its express language or  implication to post-admissions
  challenges," the trial court's discussion of the applicability of Pluta, 
  taken as a whole is in the context of determining whether defendant's
  expert has met the burden of  overcoming the statutory presumption of 23
  V.S.A. § 1205(h) - that is the presumption that arises  only after the test
  result is admitted.  In this regard the trial court notes:

    As in Pluta, here the Defendant/operator raises nothing more that
    "a mere  theoretical possibility" with the Hlastala information. 
    She fails to offer any  "specific evidence" calling into question
    the accuracy of her own test. . . .  The Defendant here has not
    met her burden with "specific evidence" in her  case sufficient to
    overcome the statutory presumption.

  (Emphasis added.) 

       In any event, even if we were to adopt defendant's construction of the
  trial court's language, a  review of the record persuades us that the court
  did not need the benefit of a presumption to conclude  that the State's
  affidavit was sufficient to establish that the Datamaster testing method is
  valid and  reliable.  Notwithstanding defendant's characterization of the
  State's affidavit as "conclusory," the  affidavit provides a sufficient
  basis for the trial court's determination that the Datamaster meets the 
  Department of Health performance standards for validity and reliability of 

 

  breath testing methods. (FN1)  We have previously noted that in a civil
  suspension proceeding, the  foundation facts for admissibility of test
  results may normally be established by affidavit.  Rolfe, 166  Vt. at 14,
  686 A.2d  at 958.

 

       Defendant further contends that the evidence below does not support
  the trial court's findings  regarding the Datamaster's "operational
  characteristics."  Mr. Manazir's affidavit contained a  sufficient basis
  for the trial court's factual findings describing the Datamaster's
  operational capacities.  Defendant's generalized claim that the Datamaster
  "does not, and cannot, capture breath that is  alveolar in character" and
  is therefore neither in compliance with Health Department performance 
  standards, nor "operationally valid," falls short of demonstrating that the
  reliability and validity of the  testing methods and the accuracy of the
  test results are not there "in the particular case, given its  actual
  underlying facts and circumstances."  Pluta, 157 Vt. at 454, 600 A.2d  at
  293.  The facts and  circumstances of this case, which provide more than an
  ample basis for suspending the defendant's  license are irrelevant only if
  the trial court erred in determining that the State presented sufficient 
  evidence from which it could be concluded that defendant's test was taken
  and evaluated in  compliance with rules adopted by the Department of
  Health.  The trial court made no such error.


       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  Mr. Manazir's affidavit included, in pertinent part, the following
  statements made under  oath:

    Through rulemaking the Department of Health has established 
    performance standards for all breath tests.  The DataMaster meets
    the  performance standards because:

	--The DataMaster analyzes a subject's expired 
	alveolar , or deep lung, air.
	-The DataMaster is capable of analyzing replicate 
	samples of breath containing a known amount of 
	alcohol with a precision of plus or minus 5% from 
	their mean when alcohol concentrations are reported 
	to three significant figures.
	- The DataMaster is capable of determining the breath 
	alcohol concentration of the person sampled with an 
	accuracy of plus or minus 10% when the 
	concentration is expressed as weight (CGS) of alcohol 
	per 210 liters of expired air.
	- The DataMaster is capable of detecting the presence 
	of potentially interfering compounds which may be 
	present in breath and which may otherwise interfere 
	with an accurate determination of an equivalent breath 
	alcohol concentration.
	- The DataMaster has been approved by the 
	Commissioner of Health for evidentiary purposes as 
	have the procedures for its use.

                                 * * *

         Based upon testing performed within and without the state of 
    Vermont, my knowledge of the scientific literature regarding
    breath  alcohol testing, and my training and experience with the
    instrument, it  is my opinion that the DataMaster is an accurate
    and reliable  instrument for determining the ethyl alcohol
    concentration of a  sample of a person's breath.

         The Datamaster provides a reliable and accurate means for 
    analysis of breath alcohol samples.  The reporting of an alcohol 
    concentration of a person's breath by the DataMaster is evidence
    that  the instrument had successfully met all internal and
    external quality  control reviews and had been operating properly
    at the time the breath  sample was analyzed.