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State v. Dumont

Supreme Court of Vermont
Aug 30, 1985
499 A.2d 787 (Vt. 1985)

Summary

In State v. Dumont, 146 Vt. 252, 255, 499 A.2d 787, 789 (1985), this Court reversed a conviction after a jury trial where the State failed to relate a.13 BAC test result back to the time of operation: "The numerical result itself should be excluded unless it is related back to the time of operation....

Summary of this case from State v. Dupree

Opinion

No. 84-228

Opinion Filed August 30, 1985

1. Motor Vehicles — Operation Under the Influence — Blood Alcohol Content at Time of Operation

Proof of offense under 23 V.S.A. § 1201(a)(1), prohibiting operation of vehicle with blood alcohol content of .10% or more, requires prosecution to produce evidence of defendant's blood alcohol content, and to relate that content back to time of operation of vehicle; evidence of defendant's condition at time of operation, while not necessary to prosecution's case, is admissible to corroborate test results.

2. Motor Vehicles — Operation Under the Influence — Defendant's Condition at Time of Operation

Proof of offense under 23 V.S.A. § 1201(a)(2), prohibiting operation of vehicle while under influence of intoxicating liquor, requires prosecution to produce evidence of defendant's condition at time of operation; however, evidence of results of blood alcohol content test, even though not related back, is admissible to establish fact that defendant had consumed some amount of liquor before being stopped.

3. Motor Vehicles — Operation Under the Influence — Prejudicial Evidence

Use of chemical test results in prosecution under 23 V.S.A. § 1201(a)(2), and of defendant's condition in prosecution under 23 V.S.A. § 1201(a)(1), will not result in prejudice to defendant where trial court's instruction on elements of offense clarifies relevance of evidence to particular offense charged; however, evidence must be relevant to offense, V.R.E. 401-402, and that relevance must outweigh any prejudicial effect, V.R.E. 403; jury might erroneously use numerical test result which has not been related back to time of operation as evidence of actual intoxication at time of offense.

4. Motor Vehicles — Operation Under the Influence — Blood Alcohol Test Results

In view of marginal additional probative value of numerical result of blood alcohol content test, and danger of its misuse by jury, expert testimony concerning such test in prosecution under 23 V.S.A. § 1201(a)(2) should be strictly limited to whether test demonstrates that defendant did, in fact, consume any intoxicating liquor; numerical result itself should be excluded unless it is related back to time of operation and used pursuant to permissive presumption established at 23 V.S.A. § 1204(a)(3).

Appeal by defendant from conviction of DUI. District Court, Unit No. 2, Chittenden Circuit, Costello, J., presiding. Reversed and remanded.

Kevin G. Bradley, Chittenden County State's Attorney, Burlington, and Theresa St. Helaire, Legal Intern, Montpelier, for Plaintiff-Appellee.

Wool Murdoch, Burlington, for Defendant-Appellant.

Present: Allen, C.J., Hill, Peck, Gibson and Hayes, JJ.


The defendant appeals his conviction under 23 V.S.A. § 1201(a)(2), of driving while under the influence of intoxicating liquor, on the ground that the admission of the results of a blood alcohol content test, without evidence relating the test results back to the time of operation, was unfairly prejudicial. We agree with the defendant's position; accordingly, we reverse and remand.

After being stopped by a police officer, the defendant was taken to a police station, where, approximately one hour and ten minutes following the stop, he was given a breath test. Chemical analysis of the breath sample showed that the defendant's blood alcohol content was .13%. There was no evidence as to what the defendant's blood alcohol content was at the time he was operating the vehicle.

The trial court instructed the jury in accordance with State v. Carter, 142 Vt. 588, 458 A.2d 1112 (1983), that the test results were admitted only to corroborate the testimony of the officer that the defendant had, in fact, had something to drink. The defendant contends upon appeal that the jury could easily be confused by the admission of the test result, because it was not an element of the offense, whereas a blood alcohol content of .10 percent or more, at the time of operation on a highway, constitutes the entire offense under 23 V.S.A. § 1201(a)(1).

On several occasions this Court has discussed the relationship between 23 V.S.A. § 1201(a)(1) and 23 V.S.A. § 1201(a)(2), and the evidence relating to each. 23 V.S.A. § 1201(a)(1) prohibits the operation of a vehicle on a highway while "there is .10 per cent or more by weight of alcohol" in the blood. 23 V.S.A. § 1201(a)(2) prohibits such operation while "under the influence of intoxicating liquor."

Proof of an offense under § 1201(a)(1) requires the prosecution to produce evidence of the defendant's blood alcohol content, and to relate that content back to the time of the operation of the automobile. State v. Rollins, 141 Vt. 105, 109-10, 444 A.2d 884, 886 (1982). Such "relation back" testimony is necessary to establish the defendant's blood alcohol content at the time of actual operation. Evidence of the defendant's condition at the time of operation, such as an unsteady walk, slurred speech, bloodshot eyes, or an alcoholic odor on the breath, while not necessary to the prosecution's case, is admissible to corroborate the test results. Id. at 110, 444 A.2d at 887.

Proof of an offense under § 1201(a)(2) requires the prosecution to produce evidence of the defendant's condition at the time of operation. State v. Carmody, 140 Vt. 631, 638,

The prosecution could, alternatively, rely upon the permissive presumption of intoxication from a related-back blood alcohol content test, pursuant to 23 V.S.A. § 1204(a)(3). To the extent that State v. Lund, 144 Vt. 171, 177-78, 475 A.2d 1055, 1060 (1984), might suggest the contrary, it is overruled.

442 A.2d 1292, 1295 (1982). However, evidence of the results of a blood alcohol content test, even though not related back, is admissible to establish "the fact that defendant had consumed some amount of intoxicating liquor before being stopped." State v. Carter, supra, 142 Vt. at 592, 458 A.2d at 1115.

Use of chemical test results in a § 1201(a)(2) prosecution, and of evidence of the defendant's condition in a § 1201(a)(1) prosecution, will not result in prejudice to the defendant where the "trial court's scrupulous instruction on the elements of the offense" clarifies the relevance of the evidence to the particular offense charged. State v. Rollins, supra, 141 Vt. at 110, 444 A.2d at 887. However, the evidence must be relevant to the offense, V.R.E. 401-402, and that relevance must outweigh any prejudicial effect, V.R.E. 403. The fact that a chemical analysis demonstrates that the defendant did, in fact, consume intoxicating liquor is relevant to a § 1201(a)(2) prosecution. The numerical test result itself may also have some probative value on this issue, but the possibility of jury confusion is greater. A jury might erroneously use a numerical test result which has not been related back to the time of operation as evidence of actual intoxication at the time of the offense, particularly if the jury is familiar with the .10% blood alcohol content presumption established under 23 V.S.A. § 1204(a)(3).

In view of the marginal additional probative value of the numerical result, and the danger of its misuse by the jury, expert testimony concerning the blood alcohol content test in a § 1201(a)(2) prosecution should be strictly limited to whether the test demonstrates that the defendant did, in fact, consume any intoxicating liquor. The numerical result itself should be excluded unless it is related back to the time of operation and used pursuant to the permissive presumption established at 23 V.S.A. § 1204(a)(3).

Accordingly, the defendant's conviction is reversed.

Reversed and remanded.


Summaries of

State v. Dumont

Supreme Court of Vermont
Aug 30, 1985
499 A.2d 787 (Vt. 1985)

In State v. Dumont, 146 Vt. 252, 255, 499 A.2d 787, 789 (1985), this Court reversed a conviction after a jury trial where the State failed to relate a.13 BAC test result back to the time of operation: "The numerical result itself should be excluded unless it is related back to the time of operation....

Summary of this case from State v. Dupree
Case details for

State v. Dumont

Case Details

Full title:State of Vermont v. Gregory J. Dumont

Court:Supreme Court of Vermont

Date published: Aug 30, 1985

Citations

499 A.2d 787 (Vt. 1985)
499 A.2d 787

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