State v. Vezina

State v. Vezina (2002-472); 177 Vt. 488; 857 A.2d 313

2004 VT 62

[Filed 01-Jul-2004]

                                 ENTRY ORDER

                                 2004 VT 62

                      SUPREME COURT DOCKET NO. 2002-472

                             JANUARY TERM, 2004

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont, 
                                       }	Unit No. 3, Orleans Circuit
                                       }	
  Douglas Vezina	               }
                                       }	DOCKET NO. 291-5-02OsCr

                                                Trial Judge: Walter M. Morris

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

       ¶  1.  Defendant Douglas Vezina appeals from the trial court's
  denial of his Motion to Exclude Breath Test Evidence.  Defendant argues
  that his right to a second breath test under 23 V.S.A. § 1202(d)(5) was
  violated when the arresting officer did not make an attempt to provide an
  alternative test after the testing instrument's failure to analyze the
  second breath sample, and that this failure  warrants suppression of the
  first test's results.  We affirm.

       ¶  2.  On April 22, 2002, a Newport Police officer found defendant
  sitting in his parked vehicle on an exit ramp of interstate 91.  After a
  field sobriety test, defendant was transported to the Newport Police
  Department, where he was requested to provide an evidentiary breath sample. 
  Defendant's breath sample was collected by a DataMaster Breath Testing
  Instrument, which reported a BAC of .118%.  Defendant then requested a
  second test as 23 V.S.A. § 1202(d)(5) permits. [FN1]  The officer attempted
  to perform the second test, but the DataMaster returned a reading
  indicating "out of range."  This message appears when there is an anomaly
  with the alcohol-water solution contained in the DataMaster's simulator and
  the testing sequence cannot be run. [FN2]  After the failure of the
  DataMaster, the arresting officer did not attempt to locate another
  instrument to conduct a second test.  The officer, however, advised
  defendant of his right to obtain an independent test at his own expense,
  [FN3] which defendant declined.  

       ¶  3.  Defendant filed a motion to suppress the first test result,
  arguing that suppression is the proper remedy for a violation of
  defendant's statutory right to a second State-administered test.  The trial
  court denied the motion, reasoning that while the statute provides for a
  right to a second test, it does not address the consequence of police
  inability to conduct the test because the instrument itself is indicating
  that it cannot run a second sequence.  The court noted that, unlike the
  denial of the statutory right to counsel in DUI processing, the
  circumstances resulting in the officer's inability to provide the second
  test do not rise to the level of a violation of implied consent rights that
  would warrant suppression.  The court further emphasized that there is no
  claim of bad faith on the part of the officer, and that defendant was
  properly advised of his right to seek independent testing.  After the trial
  court denied his motion, defendant entered a conditional plea agreement
  pursuant to V.R.Cr.P. 11(a)(2), pleading nolo contendere.  This appeal
  followed.

       ¶  4.  Defendant argues that the court erred in admitting the first
  breath test because the police failure to procure or attempt to procure an
  alternative second breath test after the DataMaster's "out of range"
  reading constitutes a violation of 23 V.S.A. § 1202(d)(5) that warrants
  suppression.  Defendant bases his argument on our holding in State v.
  Guidera, 167 Vt. 598, 707 A.2d 704 (1998) (mem).  In Guidera, we refused to
  suppress the result of a second breath test despite a procedural error by
  the police officer in obtaining the first breath sample.  We noted,
  however, that "[a]dmitting one valid infrared BAC result is fully
  consistent with the statute, even if another BAC result is invalid, as long
  as the invalidity does not go to the performance of the instrument."  167
  Vt. at 600, 707 A.2d  at 705 (emphasis added).  Defendant infers from this
  language that whenever the testing instrument precludes the administration
  of a second breath test, admission of the first test result is error
  requiring suppression.  We disagree. 
   
       ¶  5.  In Guidera, we stressed our holding in State v. Rolfe, 166
  Vt. 1, 686 A.2d 949 (1996), that " 'the results of an infrared breath test
  are admissible if the State shows that the analysis was performed by an
  instrument that meets the performance standards contained in the rules of
  the Department of Health, and the instrument met those performance
  standards while employed to analyze the sample.' "  Guidera, 167 Vt. at
  600, 686 A.2d  at 705 (quoting Rolfe, 166 Vt. at 13, 686 A.2d at 957).  The
  exception suggested in Guidera addresses concerns arising when the
  instrument's malfunction during one test sequence renders another test
  result suspect because it raises the question of whether the instrument met
  the requisite performance standards during the first test.  Such concerns
  are not an issue here.  The DataMaster functioned as expected by
  interrupting the testing process and warning the operator that the
  instrument should be taken out of service.  See Vermont Justice Training
  Council, Infrared Breath Testing Device: Student Manual.   Thus, contrary
  to defendant's suggestion, the fact that the DataMaster was able to detect
  the problem during the second sequence does not give reason to surmise that
  the instrument malfunctioned during the first one; rather, it is evidence
  that, had the problem been present during the first test, the instrument
  would have not issued a report.  See State v. Wells, 172 Vt. 603, 606, 779 A.2d 680, 683 (2001) (mem.) (upholding trial court's determination that
  DataMaster meets Department of Health performance standards for validity
  and reliability because determination was based on affidavit of a
  Department of Health chemist, who stated, among other things, that "[t]he
  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."). 

       ¶  6.  Nevertheless, defendant argues that suppression is warranted
  here, comparing the violation of § 1202(d)(5) to the violation of the
  statutory right to counsel in DUI processing provided for in §1202(d)(4),
  for which we adopted the remedy of suppression.  See State v. Gilman, 173
  Vt. 110, 119-20,  787 A.2d 1238, 1245-46 (2001) (State's failure to provide
  suspect with on-call public defender before deciding whether to submit to a
  breath test mandated suppression of evidence of defendant's refusal); see
  also State v. Duff, 136 Vt. 537, 540, 394 A.2d 1145, 1146 (1978) (breath
  test suppressed where officer failed to notify defendant of statutory right
  to counsel); State v. Madonna, 169 Vt. 98,101, 726 A.2d 498, 500 (1999)
  (suppression affirmed  where processing form failed to advise detainee of
  right to speak with public defender even if detainee is not indigent). 
  Defendant's comparison is inapposite.  As we explained in Gilman,

    We adopted [the suppression remedy] because we would not allow the
    State to take advantage of its own violation of the law. The
    critical point was made in Duff: "When a driver makes a
    complicated decision, without the option of consulting counsel as
    is his statutory right, he should not be bound by that decision,
    since he might with counsel have made it differently."  Duff, 136
    Vt. at 540, 394 A.2d  at 1146.

  Gilman, 173 Vt. at 115, 787 A.2d  at 1242.   We cannot agree that the
  DataMaster's inability to produce a second test sequence compares with the
  irreparable harm caused by the State's actions in denying a defendant's
  right to counsel during DUI processing, particularly in light of
  defendant's ability to challenge the instrument's reliability, either by
  seeking independent testing or by introducing evidence of the "out of
  range" reading.

        
       ¶  7.  It is true that we have recognized that statutory
  violations other than denial of counsel may  also compel suppression.  See
  State v. Yudichak, 147 Vt. 418, 421, 519 A.2d 1150, 1152 (1986)
  (administering blood test, without offering to give a breath test as
  required by the statute, necessitates suppression of test results).   In
  support of his argument that suppression is warranted here, defendant
  relies on State v. McCrossen, 385 N.W.2d 161 (Wis. 1986), which we cited
  approvingly in Gilman for the proposition that a violation of a statutory
  right to an elective second breath test warrants suppression of the
  evidentiary test.  Gilman, 173 Vt. at 116, 787 A.2d  at 1243.  This reliance
  on McCrossen is misplaced.  The statute at issue in McCrossen provides that
  a DUI suspect "shall be permitted, upon his or her request, [an]
  alternative test provided by the agency . . . or, at his or her own
  expense, reasonable opportunity to have any qualified person of his or her
  own choosing administer a chemical test." McCrossen, 385 N.W.2d  at 165 n.3
  (quoting W.S.A. 343.305(5)).  The defendant in McCrossen asked for a second
  test because she could not believe the result of the breathalyzer.  She
  informed the officers that she wanted either a blood or urine test.  The
  officers told defendant that she would have to pay for it, to which
  defendant agreed.  The officers, however, retained defendant in jail and
  never administered the requested alternative test.  Defendant was never
  informed that she could be released in order to get an alternative test, or
  that there was an alternative test that the police department could
  administer at the department's expense.  McCrossen, 385 N.W.2d  at 163.  In
  sum, this constituted a deliberate violation of defendant's statutory
  rights that deprived her of a meaningful opportunity to challenge the
  State's evidence.

       ¶  8.  In contrast, defendant here was adequately informed of his
  statutory rights during DUI processing.  The processing officer attempted
  in good faith to comply with defendant's request of a second
  police-administered test, and defendant was advised of his right to secure
  independent testing once the DataMaster returned the error message. 
  Therefore, there is no evidence of the deliberate deprivation of statutory
  rights that occurred in McCrossen.  In other words, nothing suggests here
  that the State was trying to benefit from its own violation of the law,
  which is one of the concerns that we have addressed by adopting the
  suppression remedy.  See Gilman, 173 Vt. at 115, 787 A.2d  at 1242.  We
  discern no reason to extend the remedy of suppression where, as here, there
  is no evidence that performance of the instrument affected the validity of
  the first BAC result, there is no claim of bad faith on the part of the
  officers, and defendant has been properly advised of his right to
  additional independent testing. 

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice


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                                  Footnotes


FN1.  The statute provides: "A person who is requested by a law enforcement
  officer to submit to an evidentiary test administered with an infrared
  breath-testing instrument may elect to have a second infrared test
  administered immediately after receiving the results of the first test." 
  23 V.S.A. § 1202(d)(5).

FN2.  The simulator is designed to contain a water-alcohol solution at
  constant temperature to provide a high precision alcohol-air standard. 
  Vermont Justice Training Council, Infrared Breath Testing Device: Student
  Manual (1996).  At the beginning of each test sequence, the DataMaster
  automatically runs a sample for the simulator.  If the standard is out of
  the proper range, the instrument will print a "Simulator Out of Range"
  message and will not allow further operation until it is serviced and
  reset.  Id.

FN3.  23 V.S.A. § 1202(d)(4) provides that "[a] person who is requested by a
  law enforcement officer to submit to an evidentiary test . . . has the
  right to have additional tests made by someone of the person's own choosing
  at the person's own expense."