State v. Anderson
Annotate this Case
State v. Anderson (2003-551); 179 Vt. 43; 890 A.2d 68
2005 VT 80
[Filed 22-Jul-2005]
[Motion for Reargument Denied 22-Sep-2005]
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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2005 VT 80
No. 2003-551
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Arvi Anderson September Term, 2004
John P. Wesley, J.
Dan M. Davis, Windham County State's Attorney, and Scott A. Willison,
Deputy State's Attorney, Brattleboro, for Plaintiff-Appellant.
Stephen L. Fine, Athens, for Defendant-Appellee.
PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and
Allen, C.J. (Ret.), Specially Assigned
¶ 1. SKOGLUND, J. After a traffic stop that resulted in
processing for driving while under the influence, the arresting officer
served defendant Anderson with a Notice of Intention to Suspend and /or
Disqualify Driver's License for Privilege to Operate, pursuant to 23 V.S.A.
§ 1205. At the preliminary hearing, Anderson moved to dismiss for failure
to state a claim on which relief could be granted. He based his motion on
the fact that the results of his breath test, as indicated on the
suspension form, produced a reading of an alcohol concentration of 0.077,
which is not "equal to or more than .08%," as required on the form. The
court agreed and dismissed the civil suspension case. The State appeals and
argues that the court erred in not allowing the matter to go to a final
hearing, at which it would be allowed to introduce expert evidence relating
Anderson's blood alcohol level back to the time he was operating a vehicle.
We affirm the district court.
¶ 2. The State argues that, when the evidentiary test is below the
legal limit, the State should be allowed to prove at the final hearing that
the operator's BAC at the time of operation would have been greater than
0.08 by using the officer's affidavit and an affidavit of the State's
chemist. This approach confuses the State's burden of proof at a civil
suspension hearing with the statutory basis for commencing a civil
suspension proceeding and fails to acknowledge the premise of the civil
suspension procedure. The civil suspension procedure is designed to serve
the remedial purpose of protecting public safety by quickly removing
potentially dangerous drivers from the roads through purely administrative
means. To that end, a law enforcement officer is authorized to issue a
notice of intention to suspend, which itself serves as a temporary
operator's license until the date of the suspension unless, within seven
days, the operator contests the suspension and seeks a hearing in the
district court. 23 V.S.A. § 1205(d)(2), (3). In this case, the officer
lacked the statutory prerequisite to issuance of a notice of intention to
suspend-a breath test reading of 0.08 BAC or more. Thus, the court was
correct in determining that the officer's affidavit was "facially
insufficient to support the commencement of civil suspension proceedings."
¶ 3. A review of the relevant statutes is in order. A criminal
DUI is defined as follows: "[A] person shall not operate, attempt to
operate, or be in actual physical control of any vehicle on a highway []
when the person's alcohol concentration is 0.08 or more, . . . or when the
person is under the influence of intoxicating liquor." 23 V.S.A. §
1201(a)(1), (2). Recognizing that criminal cases can be protracted and
slow to resolve, in the 1989 session, the Legislature created the civil
suspension system to facilitate a speedy and summary procedure to get drunk
drivers off the roads through license suspension. State v. Stearns, 159
Vt. 266, 271, 617 A.2d 140, 142-43 (1992). "The summary suspension scheme
serves the rational remedial purpose of protecting public safety by quickly
removing potentially dangerous drivers from the roads." State v. Strong,
158 Vt. 56, 61, 605 A.2d 510, 513 (1992).
¶ 4. If an officer has reasonable grounds to believe that a person
was operating, attempting to operate, or in actual physical control of a
vehicle "in violation of section 1201," the officer shall request that the
person submit to a breath or blood test to determine the person's alcohol
concentration. 23 V.S.A. § 1202(a)(3). Consent to taking such tests to
determine blood alcohol content is implied pursuant to § 1202(a)(1).
¶ 5. Under the civil suspension process, a law enforcement officer
who requests an evidentiary test can issue a notice of intention to
suspend, on behalf of the commissioner of motor vehicles, if the test
result indicates that the person's alcohol concentration "was 0.08 or more
at the time of operating, attempting to operate or being in actual physical
control of a vehicle in violation of section 1201." 23 V.S.A. § 1205(c).
The affidavit of the officer must accompany the notice, and it shall be
sufficient if it avers that the officer had reasonable grounds to believe
that the person was operating in violation of § 1201, and, after being
informed of his or her rights under § 1202(d), the person submitted to a
test whose "results indicated that the person's alcohol concentration was
0.08 or more, or the person refused to submit to an evidentiary test." §
1205(b). Thus begins the civil suspension process.
¶ 6. Pursuant to § 1205(a), upon affidavit of a law enforcement
officer that the officer had reasonable grounds to believe that a person
was operating, attempting to operate, or in actual physical control of a
vehicle in violation of § 1201, and the person submitted to a test and "the
test results indicated that the person's alcohol concentration was 0.08 or
more at the time of operating, attempting to operate or being in actual
physical control, the commissioner shall suspend the person's operating
license for a period of 90 days and until the person complies with section
1209a of [title 23]." Section 1205(a) governs the actions of the
commissioner, not the law enforcement officer. For his part, the officer
issues a notice of intention to suspend. The commissioner suspends after
any challenge to the civil suspension is finally resolved-after it has been
determined or conceded that the operator's BAC was 0.08 or more at the time
of operation. (FN1) See also id. § 1206(a) (governing suspensions after
criminal conviction or final determination of an appeal).
¶ 7. The Legislature was aware of this important distinction and
required that the process commence only upon an officer's affidavit stating
that "[t]he officer obtained an evidentiary test (noting the time and date
the test was taken) and the test indicated that the person's alcohol
concentration was 0.08 or more." Id. § 1205(b)(5). To be clear, "alcohol
concentration" means the number of grams of alcohol per 210 liters of
breath and the breath test indicates the person's alcohol concentration.
Id. 23 V.S.A. § 1200(1)(B), (3). Obviously, the test result indicates only
the person's alcohol concentration at the time of the test. It does not,
standing alone, establish the alcohol concentration at the time of
operation.
¶ 8. However, the Legislature also created a statutory presumption
to support an allegation that the person's BAC was 0.08 or more at the time
of operation. Section 1205(n) provides that, "[i]n 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 0.08 or more, it shall be a rebuttable presumption that
the person's alcohol concentration was 0.08 or more at the time of
operating, attempting to operate or being in actual physical control."
Thus, if a test taken one and one half hours after an officer has stopped
an operator results in a BAC of 0.08, the law will presume, and the officer
may presume, that the person's alcohol concentration was 0.08 or more when
he or she was operating the vehicle. In this case, the presumption does
not operate.
¶ 9. When the intended civil suspension is contested, a hearing
is scheduled. The issues to be decided at the final civil suspension
hearing are set forth in § 1205(h). At the final hearing, as pertains to
this case, the court must determine whether the officer had reasonable
grounds to believe the person was violating 23 V.S.A. § 1201, whether the
person's rights were adequately explained, and whether a test was properly
taken and indicated a BAC of 0.08 or higher "at the time of operating,
attempting to operate or being in actual physical control of a vehicle in
violation of section 1201." Id. § 1205(h)(1), (2), (4). It is only after
the final hearing that the commissioner suspends a license on the grounds
that, at the time of operation, the person's BAC was 0.08 or more at the
time of operation. Id. § 1205(a).
¶ 10. At the hearing, the State can rely on the officer's affidavit
to prove the officer had reasonable grounds to believe that the person was
driving while under the influence, that the officer explained the person's
rights, and that a test taken by a properly trained officer indicated a BAC
level of 0.08 or more. The State can then rely on the affidavit of a
chemist who works for the Department of Health, certifying that the test
complied with Health Department regulations on breath-testing methods and
was an accurate and valid indication of the alcohol concentration in the
defendant's system at the time of the test. Thus, if a test result
produces a reading of 0.08 or more, and there is no question of relating
the test result back to the time of operation, the summary suspension
hearing is indeed summary.
¶ 11. The confusion in this case stems from the Legislature's
specification of a test result "at the time of operation" in § 1205(a) and
(h)(4). As explained above, those sections address the elements to be
proven at contested final hearings before the court and the ultimate
authority of the commissioner to suspend a license, not the initial basis
for a notice of intention to suspend. The necessary prerequisite of a
civil suspension notice is an affidavit from the processing officer stating
that he requested a breath test and "the test indicated that the person's
alcohol concentration was 0.08 or more." Id. § 1205(b)(5) (emphasis
added). The officer's affidavit necessarily can attest only to the result
generated by the test taken during the processing of the operator. Thus,
as the trial court noted:
[t]here is nothing in the statute from which it might be inferred
that the Legislature intended to imbue law enforcement officers
with the expertise of chemists, allowing them to issue civil
suspension notices upon their own speculation that a Datamaster
result lower than .08% would likely be extrapolated reliably to a
breath alcohol concentration above the legal limit at the time of
operation. Rather, presumably in the interests of creating a
straightforward and streamlined proceeding, the Legislature
provided that a notice of suspension must be supported by an
affidavit indicating that '[t]he officer obtained an evidentiary
test (noting the time and date the test was taken) and the test
indicated that the person's alcohol concentration was 0.08 or
more...' (emphasis added), 23 V.S.A. § 1205(c)(5).
¶ 12. In this case, the officer had no basis to issue a notice of
intent to suspend defendant's license because the blood alcohol test did
not produce a result equal to or greater than 0.08. (FN2) Nor could the
officer rely on the statutory presumption contained in § 1205(n) to support
a notice to suspend.
¶ 13. The Legislature, in crafting this procedure to summarily
suspend a person's license to operate a motor vehicle, intended the bright
line to be a test result of 0.08. The State can still criminally prosecute
an operator for drunk driving if the test result is less, assuming there is
other evidence to either relate a test result back to the time of operation
or to indicate actions and behavior that support a finding of intoxication.
But the ability to commence a summary license suspension based solely on an
officer's affidavit does not exist unless the test result is 0.08 or more.
¶ 14. The dissent suggests that the district court's ruling "imposes
an additional element of the offense for civil suspension purposes-that is,
that a test result must show that the operator had an alcohol concentration
of 0.08 or greater when the test was administered." Post, ¶ 29 (emphasis
in original). First, that is exactly what a test result shows. The
dissent confuses the elements necessary to support a civil suspension as
delineated in subsection (a) (specifying, as noted above, when the
commissioner shall suspend a license) with the legal sufficiency of the
officer's notice of intention to suspend and its supporting affidavit found
in subsection (b). These are not the same.
¶ 15. The dissent argues that the Legislature could have expected a
trained officer to be able to identify "reasonable grounds" to believe that
a person was operating with an alcohol concentration over 0.08, citing to §
1205(a). This is wrong. That section clearly requires a law enforcement
officer to have reasonable grounds to believe that a person was operating
in violation of § 1201(a), which governs both operation with an alcohol
concentration of 0.08 or more or driving while under the influence. 23
V.S.A. § 1201(a)(1), (2). But, this case does not involve a crime, it
involves a summary civil suspension, which needs as its genesis a breath
test result of 0.08. Id. § 1205(b)(5).
¶ 16. The dissent also suggests that the rebuttable presumption
found in § 1205(n) shows that the Legislature understood that in some cases
there would be no such test and "the State would have to bear the greater
burden of relating back the test result." Post, ¶ 40. This is incorrect.
If there is no test because the defendant refused, then suspension is
automatic. The State's burden is lessened. For a civil suspension to
proceed there must be either a refusal or a test result indicating a BAC of
0.08 or more at the time of operation. That BAC can be shown by the
rebuttable presumption or through relation back evidence. But first there
must be a test result of at least 0.08.
¶ 17. Understanding that subsections (a) and (h) address the
elements to be proved for a summary suspension to take place and thus
explain the difference between an officer's affidavit that merely relates
what the test result showed and the ultimate question of whether the
operator was violating § 1201, § 1205(c) requires further explanation. It
authorizes a law enforcement officer to serve notice of intention to
suspend on a person who submits to a test, "the results of which indicate
that the person's alcohol concentration was 0.08 or more at the time of
operating, attempting to operate or being in actual physical control of a
vehicle in violation of section 1201." Id. § 1205(c) (emphasis added). At
first blush, this section appears to assume the test will provide
relation-back evidence. Again, it cannot. However, the statutory
presumption, in conjunction with a test result of 0.08 or more, permits an
inference that an operator's alcohol concentration was 0.08 or more at the
time of operation.
¶ 18. When the Legislature created the summary suspension procedure,
it permitted a suspension to occur without any court involvement, unless
the operator contested the issue and requested a hearing. To create a
threshold for suspension, it added a section affording law enforcement and
the courts a presumption that, if a test result taken within two hours of
operation produced a result of 0.08 or more, one could presume an alcohol
concentration at the time of operation of 0.08 or more. In this case,
there is no test result of 0.08 or more that would permit use of the
statutory presumption. The officer had no statutory authorization to
initiate a civil suspension case. The trial court is affirmed.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Dissenting
¶ 19. DOOLEY, J., dissenting. On its face, the majority decision
appears to be a plausible interpretation of the statutory scheme as applied
to the circumstances of this case. It is particularly plausible that the
Legislature would have enacted a bright line standard so that the license
suspension procedure could operate in a predictable and summary fashion.
The majority decision states good reasons why the scheme should work as it
has described. In essence, the majority describes the statutory scheme
that the Legislature could have, and perhaps should have, created.
¶ 20. We are not the Legislature, however. As desirable as the
statutory scheme described by the majority may be, it is not the scheme
that the Legislature actually enacted. The majority tries to deconstruct
the statute to make the pieces fit, but they do not, and I therefore
dissent.
¶ 21. Both the majority and I agree that to suspend an operator's
license under the statute, the State must show that the operator had a BAC
of 0.08 or above at the time of operation. But the majority adds an
additional element to the State's burden of proof-that defendant's BAC was
0.08 or more at the time the evidentiary test was taken. This additional
element is not contained in the statutory scheme. Further, to the extent
that there are inconsistencies in the statutory scheme, the legislative
history unequivocally demonstrates that the provision the majority relies
upon in support of its holding was not intended to prevent the State from
initiating civil suspensions in cases where the evidentiary test result
indicates a BAC below 0.08 at the time the test was administered. Nor does
the majority's holding further the Legislature's policy of quickly getting
drunk drivers off the roads, as the majority suggests; if anything, the
holding makes it more difficult for law enforcement officers to accomplish
that goal.
¶ 22. It is important to state the facts of this case to get a
better understanding of the scope of the majority's holding. At 10:38 p.m.
on the evening of October 25, 2003, a State trooper pulled defendant over
for failing to stop completely and signal before turning onto a highway.
The officer's affidavit indicates that, upon approaching defendant's truck,
the officer detected an odor of alcohol emanating from the vehicle. The
affidavit also indicates that the officer observed that defendant had
watery eyes and that he was unsteady on his feet. After defendant had
difficulty executing field sobriety tests, the officer administered a
roadside alco-sensor test, which indicated a BAC of .093 at 11:03 p.m.
Forty minutes later, at 11:43 p.m., defendant submitted an evidentiary
breath sample indicating a BAC of 0.077. The officer issued defendant a
notice of intention to suspend his license and wrote ".077" in the form to
indicate the evidentiary test result.
¶ 23. At the preliminary hearing, defendant noted that the 0.077
figure was inconsistent with the language of the notice form. The State
responded that it could establish at the final hearing that defendant's BAC
was 0.08 or greater at the time of operation by relating back the test
result. The district court dismissed the civil suspension, ruling that the
trooper's affidavit in this case was facially insufficient to support
commencement of a civil suspension proceeding because it did not state that
a test result indicating a BAC of 0.08 or more had been obtained, as
required by 23 V.S.A. § 1205(b)(5). According to the court, "the statutory
scheme for civil suspension plainly contemplates that the initiation of the
summary procedures requires a Datamaster test result that supports the
conclusion that the operator was above .08%, as evidenced by the arresting
officer's affidavit." The majority affirms this ruling, also relying on
the language of § 1205(b)(5).
¶ 24. This is a case of statutory construction. The summary
suspension procedure was created in 1989, see 1989, No. 68, with virtually
all the pieces contained in the current law. The one additional piece is
23 V.S.A. § 1205(b), added in 1991, the subsection on which the majority
partially relies. As enacted in 1989, the statute contained not even a
hint that the State must produce a test result indicating a BAC of 0.08
(then 0.10) or above at the time the test was administered. To the
contrary, as discussed in more detail below, all statutory references to
the time at which the BAC was to be measured were to the time the person
was "operating, attempting to operate or . . . in actual physical control."
1989, No. 68, § 5 (amending 23 V.S.A. § 1205(a)). As it does today, the
statute contained a presumption that allowed the State to relate back a
test result to the time of operation. See id. (adding 23 V.S.A. § 1205(m)).
As the majority opinion states, it was intended in 1989 to be "a speedy and
summary procedure to get drunk drivers off the road through license
suspension." Ante, ¶ 3; see State v. Strong, 158 Vt. 56, 58, 605 A.2d 510, 511-12 (1992) (explaining summary procedure).
¶ 25. The majority necessarily believes one of two possibilities
about the original 1989 law: (1) without saying so anywhere, the law
required that the officer obtain a test result of 0.10 BAC (changed now to
0.08 BAC) or higher to proceed with a summary civil suspension; or (2) the
officer could proceed with a test result under 0.10 as long as the officer
could relate it back to show that the operator had a BAC above 0.10 at time
of operation, attempted operation or actual physical control. I cannot
tell which of these positions the majority holds, largely because it cites
numerous subsections that existed in the 1989 law to support its position
that a test result of 0.08 BAC is now required.
¶ 26. If the majority believes the former-that a test result of 0.10
BAC was required in 1989 - it is judicially legislating this result without
any support in the statutory language. Thus, I believe that the only real
possibility is the latter - that the 1989 law did not require that the
officer produce a test result at or above 0.10 BAC. That requirement had
to come from a later amendment. Consequently, the real issue in this case
is whether, in 1991, the Legislature intended § 1205(b)(5) to preclude the
State from initiating civil suspension proceedings in situations when the
evidentiary test indicates a BAC below the statutory maximum. See Okemo
Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 210, 762 A.2d 1219, 1227
(2000) (primary objective in construing statute is to effectuate intent of
Legislature). My reading of the statutory scheme and the legislative
history underlying § 1205(b)(5) leads me to the inevitable conclusion that
the Legislature did not intend such a result.
¶ 27. In explaining my position, I first examine the statutory
scheme. The operative statement of the violation, both for criminal
prosecution and civil suspension, is contained in 23 V.S.A. § 1201(a)(1):
(a) A person shall not operate, attempt to operate, or be in
actual physical control of any vehicle on a highway:
(1) when the person's alcohol concentration is 0.08 or more
Nine additional sections or subsections, either directly or indirectly by
cross-reference, contain the language specifying that the BAC is measured
at the time of operation, attempted operation or actual physical control.
(FN3) For purposes of this case, the important applications of the DUI
statute are the provisions in the civil suspension section, contained in §
1205. Specifically, subsection (a) provides that upon affidavit of an
officer that the officer had reasonable grounds to believe that a person
had an alcohol concentration of 0.08 at time of operation, the Commissioner
of Motor Vehicles must suspend that person's operator's license. 23 V.S.A.
§ 1205(a). Subsection (c) requires the officer to notify the operator of
the suspension when the circumstances described in (a) are present. Id. §
1205(c). Subsection (h) describes the court review, limiting the issues
related to the test result to whether "the test results indicated that the
person's alcohol concentration was 0.08 or more at the time of operating .
. . in violation of section 1201." Id. § 1205(h)(4).
¶ 28. Here, however, the district court's decision, accepted by the
majority, was based on another subsection-§ 1205(b)(5), which was added in
1991. 1991, No. 55, § 6. (FN4) Subsection 1205(b), entitled "Form of
officer's affidavit," provides, in relevant part, that an officer's
affidavit in support of a suspension under § 1205(a)
shall be in a standardized form for use throughout the state and
shall be sufficient if it contains the following statements:
. . . .
(5) The officer obtained an evidentiary test (noting the time and
date the test was taken) and the test indicated that the person's
alcohol concentration was 0.08 or more, or the person refused to
submit to an evidentiary test.
¶ 29. The parties' dispute centers around the meaning of §
1205(b)(5). The district court effectively ruled that the plain language
of § 1205(b)(5) imposes an additional element of the offense for civil
suspension purposes-that is, that a test result must show that the operator
had an alcohol concentration of 0.08 or greater when the test was
administered. (FN5) As discussed above, the addition of a new offense
element is discordant with the many other statements of the offense
elements in the subchapter on drunken driving. More importantly, it is in
conflict with § 1205(h), which limits the issues in the court proceeding.
Under the district court's construction, § 1205(b)(5) adds an element to
the case the State must prove, and yet § 1205(h) prevents that element from
being shown because it is not among the permissible issues that can be
raised at a final civil suspension hearing.
¶ 30. I recognize that we have rules for resolving internal
inconsistencies in statutes, but the first such rule is that we must deal
with an apparent inconsistency by harmonizing the statutory sections to
avoid the inconsistency. See Gallipo v. City of Rutland, 173 Vt. 223, 235,
789 A.2d 942, 951 (2001). This harmonizing process begins with a close
examination of the district court's conclusion that the plain meaning of §
1205(b)(5) is to add an additional element to the offense. I find the
district court's conclusion unpersuasive in two respects. First, the
subsection deals with only the content of the officer's affidavit,
specifying that it must be on a standard form, and stating that "it shall
be sufficient" if it contains certain "statements." 23 V.S.A. § 1205(b).
The subsection does not provide that the affidavit is insufficient if it
does not contain those statements. Indeed, the required content of the
affidavit is specified in subsection (a), not subsection (b), and
subsection (a) requires a minimum alcohol concentration of 0.08 at the time
of operation, not at the time of testing. The district court held that
"the Legislature provided that a notice of suspension must be supported by
an affidavit indicating that '[t]he officer obtained an evidentiary test
(noting the time and date the test was taken) and the test indicated that
the person's alcohol concentration was 0.08 or more . . . .' (emphasis
added), 23 V.S.A. § 1205(c)(5)." (FN6) As discussed above, the "must be
supported" language does not appear in the statute. Rather, the statute
describes what content of the affidavit is "sufficient" without specifying
what content is required.
¶ 31. Second, the words of § 1205(b)(5) do not explicitly state
that a BAC of 0.08 is required at the time of testing. The language is
silent on the timing of the BAC measurement. While I agree that in
isolation the more logical interpretation of the wording is that the BAC
indicated by the test result alone must be above the minimum of 0.08, the
failure to state that explicitly introduces an ambiguity, especially
because all of the other sections in the statutory scheme do state
explicitly the point in time for which the required alcohol concentration
must be found. Thus, it is possible that the Legislature used the words of
§ 1205(b)(5) as a shorthand for the longer statement that the BAC
determination is made at the time of operation.
¶ 32. For these two reasons, I conclude that § 1205(b)(5) does not
have a plain meaning, and is ambiguous. While the ambiguity can be
resolved from the language alone, we have in this case another statutory
construction tool-legislative history-to harmonize the statutes. See Green
Mtn. Power Corp. v. Sprint Communications, 172 Vt. 416, 420, 779 A.2d 687,
691 (2001) (recognizing that when statutory language is ambiguous,
"legislative history may be used to determine the intent of the
Legislature"). Here, the legislative history greatly undercuts the
district court's and the majority's interpretation of the statute. Indeed,
the legislative history makes it plain that the Legislature did not intend
to add as an element of the offense that the operator must have an alcohol
concentration above 0.08 at the time the test was administered.
¶ 33. The 1989 law had no subsection on the form of the
officer'saffidavit; the requirements were generally set out in § 1205(a)
without the concept of a statewide, standardized form. In 1991, the
Legislature added subsection (b) on the form of the officer's affidavit.
1991, No. 55, § 6 (adding 23 V.S.A. § 1205(b), among other amendments).
The addition of § 1205(b) was not part of the original bill introduced in
1991. Rather, the language was drafted by Gary Kessler of the State's
Attorneys and Sheriffs Department and inserted into the bill by the Senate
Judiciary Committee. At a March 7, 1991 hearing before the Committee,
Kessler testified that he drafted the provision to respond to police
complaints about the amount of paperwork involved in processing civil
suspensions. He explained that the provision was intended to standardize
and streamline police paperwork by shortening the length of the required
affidavit. He emphasized that he arrived at the criteria set forth in the
provision by incorporating the issues allowed at the final hearing under §
1205(h). When members of the Committee asked Kessler if then Defender
General Bud Allen had approved the provision, Kessler left the committee
room to find Allen and later reported back that Allen was content with the
language as long as the new provision preserved the issues contained in §
1205(h).
¶ 34. The provision drafted by Kessler was not changed and later
became § 1205(b). At no time did the Committee discuss whether the new
provision would add an additional element to the State's burden of proof or
the officer's power to initiate a civil suspension, and certainly there is
no hint that such a result was intended. Rather, the apparent intent
behind the amendment was to lighten the State's burden, not to increase it
as the majority holds. In any case, nothing in the Committee's discussion
suggests that it "intended the bright line to be a test result of 0.08."
Ante, ¶ 13. Indeed, the content of the Committee's discussion is to the
contrary.
¶ 35. I conclude from the legislative history that the district
court's interpretation of § 1205(b)(5) is incorrect. There was clearly no
intent to expand the issues to be considered in the civil suspension
proceeding as specified by § 1205(h)-whether the person had a BAC of "0.08
or more at the time of operat[ion]." The BAC at the time of test
administration is not an issue before the court in a suspension proceeding
under § 1205(h). Rather, it is likely that the drafter chose the language
of § 1205(b)(5) as a shorthand for the requirement in all the other
statutory sections, and specifically that of § 1205(h)(4). Thus, §
1205(b)(5) must be construed to refer to the BAC at the time of operation.
¶ 36. I cannot agree with the majority's distinction between
elements the State must prove at the civil suspension hearing and those
that must be present when the law enforcement operator prepares an
affidavit. The statute sets out one integrated proceeding that begins with
the officer's affidavit and concludes with review by the district court if
requested. (FN7) The distinction advanced by the majority would make sense
if the State could initiate a civil suspension proceeding without an
affidavit, or despite a flawed affidavit, and prove the final hearing
issues as specified in 23 V.S.A. § 1205(h). Obviously, the majority does
not believe that such bifurcation of the process is possible; it would
affirm the termination of the process in this case with no opportunity for
the State to reach the final hearing. Thus, the majority is advocating a
distinction without a difference-irrespective of how the issue arises, the
majority would hold that no suspension could ever occur without a showing
that the operator had a BAC above 0.08 at the time the test was
administered, obviously an element of the offense beyond those specified in
§1205(h).
¶ 37. The real conflict in the majority's attempt to parse through
the statutory language to explain inconsistency with its construction comes
when it reaches § 1205(c). The subsection not only authorizes, but
requires, the officer to submit a notice of suspension to an operator whose
test shows a BAC of 0.08 or above at time of operation. The language
reads: "On behalf of the commissioner of motor vehicles, a law enforcement
officer . . . directing the administration of an evidentiary test shall
serve notice of intention to suspend . . . on a person who submits to a
test the results of which indicate that the person's alcohol concentration
was 0.08 or more at the time of operating, attempting to operate or being
in actual physical control of a vehicle in operation of § 1201 of this
title." Id. § 1205(c). If the majority's distinction were correct, and
the Legislature had intended to require a test result with a 0.08 BAC or
above, it would have said so in this subsection. Instead, just as in other
sections, it specifies that the time for the measurement of the BAC is "the
time of operating, attempting to operate or being in actual physical
control," id., and says nothing about a requirement that there be a test
result above 0.08 BAC. The majority suggests that the legislative language
can be explained by the presence of the evidentiary presumption in §
1205(n) that relates back a test result of 0.08 BAC or greater, a
presumption that existed in 1989 before the majority's new requirement. It
is far easier and better explained by a plain meaning interpretation that
does not import nonexistent requirements into the language.
¶ 38. Based on the facts described in the outset of this dissent,
the officer in this case followed the command of the statute; he could not
do otherwise. The majority provides no answer to the conflicted position
in which it has placed the officer, other than to ignore the language of
the statute and his duty under it.
¶ 39. Defendant and the district court have raised additional
reasons for requiring a test result over 0.08, but they are not persuasive.
The trial court reasoned that the Legislature did not intend "to imbue law
enforcement officers with the expertise of chemists, allowing them to issue
civil suspension notices upon their own speculation that a Datamaster
result lower than .08% would likely be extrapolated reliably to a breath
alcohol concentration above the legal limit at the time of operation." I
note that the statutory standard is that "the officer had reasonable
grounds to believe" that the person was operating with a BAC over 0.08 and
not that the officer know it with certainty. 23 V.S.A. § 1205(a). I
believe that the Legislature could have expected a trained officer to meet
that standard without a test result above 0.08 in some instances. In
saying that, I agree that those instances will be relatively rare, but this
case demonstrates those rare circumstances because the officer had (1)
physical signs of intoxication, including defendant's inability to complete
field dexterity tests; (2) a contemporaneous roadside alco-sensor test
result above the legal limit; (3) an evidentiary test result submitted more
than an hour after operation and yet only 0.003 under the legal limit; and
(4) information about the person's eating and drinking history immediately
before the stop.
¶ 40. Finally, I do not agree with defendant that the rebuttable
presumption set forth in § 1205(n) demonstrates that the Legislature
intended to limit civil suspensions to instances in which the test result
was 0.08 or more. That statute provides that a showing that a person's BAC
was 0.08 or higher within two hours after operation creates a rebuttable
presumption that the person's BAC at time of operation was above 0.08. The
purpose of the statute is to place the burden of producing relation-back
evidence on the party best able to meet it-the defendant. State v. Pluta,
157 Vt. 451, 455, 600 A.2d 291, 293 (1991). In this case, of course, the
presumption is not applicable because the basic fact-a test result of 0.08
or more-is not present. See V.R.E. 301(c)(1). Defendant's argument is
that the Legislature showed by this subsection that there would always be a
test result above 0.08 and that the presumption would serve to relate it
back. In fact, the statute shows the opposite. Its statement of what will
happen if there is a timely test suggests strongly that the Legislature
understood that in some cases there would be no such test, in which case
the State would have to bear the greater burden of relating back the test
result.
¶ 41. In sum, notwithstanding significant evidence that defendant
was alcohol impaired with a BAC above 0.08 at time of operation, the
majority has affirmed the district court's dismissal of the State's civil
suspension complaint based on an added element of the offense never
contemplated by the Legislature. I would reverse the trial court's
decision and remand the matter for a final civil suspension hearing.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. This authority of the commissioner mimics the authority given the
commissioner prior to the enactment of the civil suspension process, when
"[u]pon a finding by the court that the officer had reasonable grounds to
believe that the defendant was . . . operating, attempting to operate, or
in actual physical control of a motor vehicle on a highway [while under the
influence of intoxicating liquor or other drugs, or both], the court shall
forward the report of the summary hearing to the commissioner of motor
vehicles, who shall suspend the person's operator's license . . . for a
period of one year." 1981, No. 103, § 6. See also 1983 (Adj. Sess.), No.
134, § 4.
FN2. This is, of course, not to say that an officer obtaining a test result
of less than 0.08 cannot process the operator for a violation of
§1201(a)(2), operating under the influence of intoxicating liquor.
FN3. See 23 V.S.A. § 1202(a)(3) (evidentiary test is required of person
when officer has reasonable grounds to believe that person was operating,
attempting to operate, or in actual physical control, in violation of §
1201); id. § 1203(f) (when officer has reason to believe person violated §
1201, officer may conduct preliminary breath alcohol screening test); id. §
1205(a) (Commissioner of Department of Motor Vehicles must suspend driver's
license of person when law enforcement officer submits affidavit stating
that officer had reasonable grounds to believe that person was operating,
attempting to operate, or in actual physical control, in violation of §
1201 and (1) person refused to submit to test, or (2) person submitted to
test indicating "that the person's alcohol concentration was 0.08 or more
at the time of operati[on]"); id. § 1205(b)(3) (officer's affidavit is
sufficient if it states that officer had reasonable grounds to believe
person was operating, attempting to operate, or in actual physical control,
in violation of § 1201); id. § 1205(c) (officer gives notice of intent to
suspend when test results indicate person's alcohol concentration was 0.08
or more at time of operating, attempting to operate, or actual physical
control); id. § 1205(h)(1) (issues at final civil suspension hearing
include whether officer had reasonable grounds to believe person was
operating, attempting to operate, or in actual physical control, in
violation of id. § 1201(h)(1); id. § 1205(h)(4) (issues also include
whether test results show alcohol concentration of 0.08 or more at time of
operation, attempted operation, or actual physical control, in violation of
§ 1201); id. § 1205(i) (after hearing, license shall remain suspended if
court finds that officer had reasonable grounds to believe that person was
operating, attempting to operate, or in actual physical control, in
violation of § 1201 and (1) person refused to submit to test, or (2) person
submitted to test indicating "that the person's alcohol concentration was
0.08 or more at the time of operati[on]"); id. § 1205(n) (if alcohol
concentration was 0.08 or more within two hours of operation, attempted
operation, or actual physical control, there is rebuttable presumption that
it was above 0.08 at time of operation).
FN4. When the language of current § 1205(b) was added it caused relettering
of subsequent subsections through subsection (l).
FN5. Although not directly in issue, the district court's ruling would not
prevent criminal prosecution of the operator because the ruling is limited
to the subsection applicable only to civil suspension, 23 V.S.A. §
1205(b)(5). The difference in result is anomalous and cannot be justified
by the summary nature of the civil suspension proceeding because it means
that the civil suspension proceeding requires proof of an additional
element, not required in the criminal proceeding.
FN6. The district court erroneously cited the section as 23 V.S.A. §
1205(c)(5). It is clear from the context that it meant § 1205(b)(5).
FN7. The issue first came up at the preliminary hearing in this case, but
there is no requirement that it be raised then. Indeed, in numerous cases,
we have had appeals where the operator challenges a test result at the
final hearing. I assume the majority, despite its distinction, would
require the district court to dismiss the civil suspension hearing if the
issue of the test result first arose at the final hearing.
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