Summary
In State v. Zantanos, 150 Vt. 648, 552 A.2d 387 (1988), the defendant contended that the results of a breath test were improperly admitted against him because the prosecution failed to show that he had consumed no liquor between his last operation of a vehicle and the administration of the test fifty minutes later.
Summary of this case from Poulnot v. District of ColumbiaOpinion
No. 86-138
July 1, 1988.
Appeal from District Court of Vermont, Unit No. 2, Chittenden Circuit.
Defendant appeals his conviction for DUI under 23 V.S.A. § 1201(a)(2) because the trial court admitted testimony that the results of a breath test showed that defendant consumed intoxicating liquor. Defendant argues that such evidence was inadmissible where the State failed to relate the test results back to the time of operation of a motor vehicle and failed to show that defendant consumed no liquor between the last act of operation and the administration of the breath test some 50 minutes later. We have consistently held that test results that are not related back are relevant in a § 1201(a)(2) proceeding and that evidence that the results show the defendant did consume intoxicating liquor is admissible because the probative value outweighs the danger of unfair prejudice to the defendant. See State v. Bushey, 149 Vt. 378, 381, 543 A.2d 1327, 1328-29 (1988); State v. McQuillen, 147 Vt. 386, 388, 518 A.2d 25, 26 (1986); State v. Dumont, 146 Vt. 252, 255, 499 A.2d 787, 789 (1985). We have imposed no requirement, as a condition of the use of the test results to show consumption, that the State exclude all possible methods of consumption inconsistent with guilt, including consumption after operation. The failure to exclude the possibility that the consumption occurred after operation goes to the weight of the test result evidence, not its admissibility. Accordingly, there was no error.
Affirmed.
Mahady, J., dissents.