









2014 VT 121










State v. Grenier
(2013-224) & State v. Harris (2013-300)
 
2014 VT 121
 
[Filed 14-Nov-2014]
 
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 by email at:
JUD.Reporter@state.vt.us or by mail at: 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.
 
 



2014 VT 121



 



Nos. 2013-224 & 2013-300



 



State of Vermont


Supreme Court




 


 




     v.


On Appeal from




 


Superior Court, Washington Unit,




Brian Grenier


Criminal Division




 


 




State of Vermont
 
    v.
 
Jessica Harris


March Term, 2014




 
 
Thomas A. Zonay,
  J.




 



Gregory Nagurney, Deputy State’s
Attorney, Montpelier, for Plaintiff-Appellee.
 
David C. Sleigh and Kyle L. Hatt of Sleigh Law, St. Johnsbury,
for Defendants-Appellants.
 
 
PRESENT:   Reiber, C.J.,
Dooley, Skoglund and Crawford, JJ.,[1] and Morse, J. (Ret.),
                    
Specially Assigned
 
 
¶ 1.            
REIBER, C.J.   These consolidated cases stem from
defendants Brian Grenier and Jessica Harris’s
prosecutions for driving under the influence (DUI).[2]  Defendants appeal the trial court’s
denial of their motions to suppress the results of their breath-alcohol tests
taken by the DataMaster DMT machine.  For the
following reasons, we affirm the trial court.
¶ 2.            
We begin with the procedural history.  Defendants Grenier and Harris were arrested for driving under the
influence on May 22, 2010 and February 8, 2011, respectively.  Defendants
moved to suppress the evidentiary breath-alcohol test results, arguing (1) that
the Vermont Commissioner of Health (Commissioner) did not approve the DataMaster DMT machine used to obtain the breath-alcohol
results, as required by 23 V.S.A. § 1203(d) and rules adopted by the
Vermont Department of Health (DOH); and (2) that admission of the DMT results
would violate defendants’ due process rights under the United States and
Vermont constitutions because of alleged ongoing mechanical problems with the
machines and unprofessional practices by DOH employees.[3]  Defendants requested an evidentiary
hearing on their claims.  
¶ 3.            
The Washington Unit Criminal Division denied defendants’ motions to
suppress on September 16, 2011.  The court declined to hold an evidentiary
hearing, finding it unnecessary because, even taking defendants’ allegations as
true, the parties did not dispute the relevant
material facts.  The court ruled that the DataMaster
DMT was properly approved by the DOH for use as a breath-testing device, based
on letters issued by the DOH Commissioner in 2006 and 2010 approving “the DataMaster using infrared technology” for evidentiary
use.  The court rejected defendants’ arguments that the approval was
inadequate because it was not specific to the DataMaster
DMT, reasoning that based on the language of § 1203(d) and this Court’s
case law interpreting the statute, the Legislature did not require such a
specific approach.  The court also rejected defendants’ arguments that
admission of the test results would violate their due process rights because their allegations against the DOH would be
adequately tested through the adversarial system and did not need to be
resolved on a motion to suppress. 
¶ 4.            
On October 11, 2012, defendants filed motions for reconsideration with
additional evidence not before the trial court at the time of its initial
decision.  Defendants continued to assert that the DataMaster
DMT was not approved in accordance with DOH rules, but argued further that (1)
the initial 2006 approval letter could not have covered the DMT model because
the State had not yet formally purchased the DMT machines at the time the
letter was issued; and (2) the Commissioner issued the 2010 approval letter without
due diligence, but merely as a rote response to a state’s attorney’s
request.  The court considered this new evidence, but affirmed its prior
ruling that the Commissioner approved the DataMaster
DMT in accordance with DOH rules.   
¶ 5.            
At trial, defendants vigorously attacked the reliability of the test and
urged the jury to give it no weight.  In particular, defendants relied on
evidence of ongoing technical problems with the machines and of unprofessional
conduct within the DOH, allegations that a subsequent internal investigation
determined to be unfounded.  Defendant Grenier
was convicted by a jury of DUI, and defendant Harris pled guilty to the same
charge, but conditioned on her appeal of the trial court’s rulings.  On
appeal, defendants argue that the trial court abused its discretion in denying
defendants’ requests for an evidentiary hearing and that it erred in denying
defendants’ motions to suppress. 
I.      
 
¶ 6.            
Some further elaboration on the factual background is necessary to
provide context to defendants’ arguments.  Our understanding of
defendants’ allegations is informed substantially by the trial court’s factual
findings, to which we defer on appeal.  State
v. Burnett, 2013 VT 113, ¶ 14, ___ Vt. ___,
88 A.3d 1191 (stating that this
Court defers to trial court’s factual findings on appeal from denial of motion
to suppress); see also State v. Zacarro, 154
Vt. 83, 86 574 A.2d 1256, 1258 (1990) (stating that when reviewing denial of
suppression motions, “[w]e will not disturb the trial court’s findings of fact
unless they are unsupported by the evidence or clearly erroneous”).  We
recite these facts with the important caveat that, like the trial court, we assume—without
deciding—the truth of defendants’ allegations for purposes of our
decision.  
¶ 7.            
In 1991, the DOH deployed its first fleet of DataMaster
machines, all BAC models, for use in DUI cases.  This marked a transition
from the gas-chromatography technology the State had previously used to the more
modern method of infrared spectrophotometry.  In 2005, however, the DOH
began evaluating new models to replace the aging DataMaster
BAC machines, motivated by increasing difficulty in repairing the machines and
by the availability of a grant through the Governor’s Highway Safety Program to
purchase new machines.  The DOH considered four competing brands, and
ultimately settled on the DataMaster DMT because of
its preferable features, satisfactory results from initial performance testing,
and the DOH’s good working relationship with the manufacturer.  The
parties do not appear to dispute that the DMT model uses the same underlying
infrared-spectrophotometry technology as the BAC model, but that it uses
distinct detector technology, electronics, calibration and certification
techniques, and a different software operating system from the BAC model. 
They disagree about the legal significance of these differences.
¶ 8.            
On February 7, 2006, the Commissioner issued a letter entitled “Approval
of Instrumentation and Procedures,” which stated that “[t]he instrumentation
approved for the analysis of breath alcohol for evidentiary purposes is the DataMaster using infrared technology.”  The letter
explained that it was issued pursuant to DOH regulations requiring that
“analytical instrumentation and analytical procedures for blood alcohol
analysis shall be approved by the Commissioner of Health.”  The letter
named only the DataMaster brand and did not
differentiate between the BAC and DMT models.  In May 2006, the DOH
purchased an initial order of twenty DataMaster DMT
machines.  According to defendants, the initial fleet had technical
problems—including one machine that emitted plumes of smoke when turned on—and
all ten devices in the first shipment had to be returned to the
manufacturer.  The DMT machines exhibited continuing technical issues
between 2006 and 2008, including failure to run routine performance checks in
compliance with specifications, problems with how tickets printed in response
to prompts for a second breath test, failure to report errors when the
simulator solution was out of range, and other problems.  In 2008, both
the DOH chemist who tested the machines and the machines’ software engineer
concluded that Vermont’s DMT machines were not ready to be deployed in the
field.  The problems continued, and in 2009 two of the DOH chemists
recommended purchasing machines from a competing brand.  Ultimately,
however, the DOH purchased more DMT machines, and the machines were deployed
for evidentiary use in late 2009 and 2010.  On September 24, 2010, the
Commissioner issued another approval letter stating that “[t]he instrumentation
approved for the analysis of breath alcohol for evidentiary purposes is the DataMaster using infrared technology.”  Like the 2006
letter, the 2010 letter did not distinguish between different models made by
the DataMaster brand.      
¶ 9.            
Beyond these technical problems, defendants presented the deposition testimony
of two DOH chemists that questioned the competence and ethics of the DOH
technician in charge of maintaining the DMT machines, as well as the veracity
of the documentation demonstrating the reliability of the DMT machines. 
In particular, the DOH chemists testified that the technician would change his
testing methodology when inspecting a malfunctioning machine and falsify data
in order to get the machine to pass certification.  According to the
chemists, the technician would, for example, add acetone to the solution that
detects interfering compounds, raise the temperature of a simulator in order to
negate an out-of-range report, and fail to perform suck-back tests on
instruments with broken valves.  He would also fail to adequately document
repairs and adjustments made to DMT machines in the field.
¶ 10.         In
response to the DOH chemists’ complaints, the lab director in charge of the
breath-alcohol testing program commissioned an internal investigation in
2010.  The investigator, another DOH employee, examined the machines and
the processes for maintaining them in Washington and Franklin counties and
summarized his findings in a two-page memo dated July 29, 2010.  He found
that some of the machines had problems relating to low simulator solution
concentrations and other instrument-related issues, but ultimately concluded
that the methods used to resolve technical issues with the DMT machines are “an
evolving process and the allegation of unethical practices is inappropriate and
unwarranted.”  Defendants questioned the integrity of the internal
investigation, believing it to be superficial and non-responsive to the
chemists’ complaints, but the trial court found no basis to question the
investigation’s results.
II.
¶ 11.         With
that background, we turn to the issues defendants raise on appeal. 
Defendants contend that the trial court erred in denying defendants an
evidentiary hearing on disputed issues of material fact, and that court erred
in determining that the DataMaster DMT was properly
approved by the DOH Commissioner.[4] 

A.
¶ 12.         First,
we address the trial court’s denial of an evidentiary hearing, which we review
for abuse of discretion.  V.R.Cr.P. 47(b)(2) (stating that decision whether to hold oral argument on
motion is in discretion of trial court); State v. Senecal,
145 Vt. 554, 560-61, 497 A.2d 349, 352 (1985).  We have previously
explained that “[a] hearing on a motion is not
required unless the motion papers indicate a ‘real dispute for one or more
relevant facts.’ ”  Senecal,
145 Vt. at 560, 497 A.2d at 352 (quoting Reporter’s Notes, V.R.Cr.P.
47(b)(2)).  Moreover, “the failure to hold an evidentiary hearing does not
deny due process rights unless substantial factual issues exist.”  State v. Tongue, 170 Vt. 409, 413, 753 A.2d 356, 359 (2000)
(quotation omitted). 
¶ 13.         Here, the trial court did not abuse its discretion in
denying an evidentiary hearing because there were no disputed issues of
relevant fact.  The court took defendants’ allegations as true for
purposes of its decision, and resolved their claims on purely legal
grounds.  As to the DOH approval letters, defendants and the State agreed
on many, though not all, of the underlying facts, including that approval letters
were issued by the Commissioner in May 2006 and September 2010, and that there
were various technological differences between the BAC and DMT models. 
Whatever factual disagreements they did have were inapposite to the grounds for
the court’s decision, as the court ultimately deferred to the agency’s
interpretation that the approval of the breath-testing technology did not have
to be specific to the model used, thus rendering defendants’ arguments
regarding the differences between the models irrelevant.  
¶ 14.         Beyond defendants’ arguments about whether the DMT model
was properly approved, which the court resolved on legal grounds, there were
some hotly-disputed facts regarding defendants’ allegations of incompetence and
unethical behavior within the DOH.  The trial court recognized this,
noting that “there is a difference in opinion among experts on the reliability
of Vermont’s DMT machines and the effectiveness of the DOH’s maintenance
procedures.”  It is important, however, that defendants’ allegations were
aimed at attacking the functioning of the DOH alcohol program generally. 
They did not specifically relate to the ability of the actual DMT machines used
in defendants’ cases to meet the performance standards promulgated by the DOH
at the time their breath-alcohol was measured, as required by statute to
establish the admissibility of the evidence at trial.  See 23 V.S.A.
§ 1203(d) (providing that test results are “valid” if performed according
to DOH performance standards); State v. Rolfe, 166 Vt. 1, 11-12, 686
A.2d 949, 956-57 (1996) (interpreting term “valid” in § 1203(d) to
establish threshold of admissibility of test into evidence).  In other
words, defendants’ allegations did not contest the foundational facts
justifying admission of the test results; their arguments went solely to the
weight of the evidence.  See Rolfe, 166 Vt. at 3, 686 A.2d at 952 (holding that defendant may contest
foundational facts but not otherwise challenge admissibility of test results).
¶ 15.         Because defendants’ allegations were speculative as applied
to the functioning of the DMT machines in their particular cases, they did not
present an issue of fact pertinent to the legal question of the test results’
admissibility.  Therefore, the court properly found an evidentiary hearing
unnecessary, noting that the development of evidence at trial regarding
the machine’s reliability would provide a sufficient opportunity for the
“adversary system to uncover, recognize, and take due account of the DOH’s
shortcomings.”  Cf. Senecal,
145 Vt. at 561, 497 A.2d at 353 (holding that factual
disputes regarding circumstances of traffic stop were pertinent to deciding
legal issues in motion to suppress, and thus hearing was necessary).
B.
¶ 16.         Of course, our conclusion that the trial court did not
abuse its discretion in denying defendants’ request for a hearing is somewhat
intertwined with the merits of defendants’ claims, which we now address. 
On appeal from denial of a motion to suppress, we defer to the trial court’s factual
findings and review its legal conclusions de novo.  Burnett,
2013 VT 113, ¶ 14.  
¶ 17.         Defendants claim that the DataMaster
DMT was not properly approved by the DOH Commissioner.  The legal
framework regarding the DOH approval requirement is articulated in 23 V.S.A.
§ 1203(d), which provides in pertinent part: 
  In the case of a breath test administered using an
infrared breath testing instrument, the test shall be analyzed in compliance
with rules adopted by the department of health. . . . Analysis
of the person’s breath or blood. . . . shall
be considered valid when performed according to methods approved by the
department of health.  The department of health shall use rule making
procedures to select its method or methods.
 
¶ 18.         Pursuant to this statutory mandate, the DOH promulgated a
rule requiring that breath-alcohol “[a]nalyses shall
be performed using the methods of gas chromatography or infrared
spectrophotometry.”  Dep’t of Health, Breath and Blood Alcohol Analysis,
§ C(I), Code of Vt. Rules 13 140 003, available
at http://healthvermont.gov/regs/breath_bloodalcohol_analysis.pdf [hereinafter
Breath & Blood Alcohol Analysis Regulation].  The rule set forth
further performance requirements for the instrumentation employing these
methods:
In using
either method the following specifications must be met:
 
  1. Sampling equipment shall be capable of collecting
a sample of expired alveolar air. . . .
 
  2. Analytical instrumentation shall be 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.
 
  3. Analytical instrumentation shall be capable of
determining the blood or breath alcohol concentration
of the person sampled with an accuracy of plus or minus 10%.  The
calculation of an equivalent blood alcohol concentration from the result of a
breath alcohol analysis shall be based on a blood to breath alcohol
concentration ratio of 2100:1.
 
  4. Instrumentation shall be capable of determining
the breath alcohol concentration of the person sampled within plus or minus 10%
where the concentration is expressed as weight percent alcohol per 210 liters
of expired air.
 
  5. The analytical instrumentation shall be capable
of detecting the presence of potentially interfering compounds which may be
present in breath and which may otherwise interfere with accurate determination
of an equivalent blood or breath alcohol
concentration.
 
  6. The analytical instrumentation and procedures
used for analysis of breath alcohol content for evidentiary purposes shall be
approved by the Commissioner of Health.
 
Id.  
 
¶ 19.         In Rolfe,
this Court held that the DOH rules complied with the mandates of
§ 1203(d).  166 Vt. at 8-10, 686 A.2d at 955-56. 
Defendants contend on appeal, as they did before the trial court, that the DataMaster DMT was never approved by the Commissioner as
required by paragraph 6 of the rule.  Specifically, defendants argue that
(1) letters from the Commissioner in 2006 and 2010 approving “the DataMaster using infrared technology” were not sufficiently
specific to cover the DataMaster DMT because the
technologies utilized in the BAC and DMT models were so distinctive as to
require separate approval letters; (2) the 2006 approval letter could not have
covered the DMT model because it was signed in February 2006 and the DOH did
not even begin purchasing DMTs until May 2006; and (3) the 2010 letter was
signed in September of that year, so even if the letter did cover the DMT, such
approval was too late to apply at the time of defendant Harris’s arrest in
March 2010.  Defendants further argue that even if the letters were sufficient
to constitute an approval under the rule, the Commissioner did not engage in
due diligence in issuing the approvals.  In support of this claim,
defendants point to an August 2010 letter from a state’s attorney requesting
that the Commissioner approve the DataMaster DMT for
use in certain counties in the Northeast Kingdom in order “to avoid this
technical challenge to the new equipment.”  The Commissioner responded by
noting that “[w]ith respect to the new DataMaster equipment, the current form documents the
Commissioner’s approval of DataMaster instruments
using infrared technology and covers the former and new equipment.  Since
you have expressed a concern, however, I am in the process of reissuing the
approval form.”
¶ 20.         Defendants’ claims boil down to whether the Commissioner’s
approval letters complied with the requirements of paragraph 6 of the DOH
rule.  This question implicates the DOH’s interpretation of its own
regulations.  “We employ a deferential standard of review of an agency’s
interpretation of its own regulations,” and the presumption that an agency’s
interpretation is valid “may be overcome only by compelling indications of
error.”  Conservation Law Found. v. Burke, 162 Vt. 115, 121, 645
A.2d 495, 498 (1993); see also Judicial Watch, Inc. v. State,
2005 VT 108, ¶ 10, 179 Vt. 214, 892 A.2d 191 (“Absent
compelling indications of error, interpretations of administrative regulations
or statutes by the agency responsible for their execution will be sustained on
appeal.” (quotation omitted)).  In interpreting
regulations, our paramount goal “is to discern the intent of the
drafters.”  Burke, 162 Vt. at 121, 645 A.2d at
499.  We begin by referencing the plain meaning of the regulatory
language, but “other tools of construction are available to us should the
plain-meaning rule prove unavailing.”  In re Williston Inn Grp.,
2008 VT 47, ¶ 14, 183 Vt. 621, 949 A.2d 1073 (mem.).  
¶ 21.         Paragraph 6 of the DOH rule states that “[t]he analytical
instrumentation and procedures used for analysis of breath alcohol content for
evidentiary purposes shall be approved by the Commissioner of Health.” 
Breath & Blood Analysis Regulation, § C(I)(6). 
Defendants contend that “instrumentation” refers to specific breath-alcohol
machine models, and that the DMT and BAC models are so different as to require
separate approval letters.  However, the letters indicate that the
Commissioner interpreted the term to refer to one or both of two types of
instruments that perform the same function, one employing the
gas-chromatography method, the other employing the infrared-spectrophotometry
method.  This broader interpretation of “instrumentation” does not require
approval of specific models such as the BAC or DMT.  Considering the
instrumentation approval for breath-alcohol analysis in tandem with the
instrumentation approval for blood-alcohol analysis, it becomes apparent that
the broader interpretation is the correct one.
¶ 22.         The Commissioner’s approval letters going back to 1992
consistently approve of instrumentation using infrared spectrophotometry for
breath-alcohol analysis, and expressly mention “DataMaster.” 
Additionally, the 1992 and 1997 approval letters both also approve of
instrumentation using gas chromatography and expressly mention “GCI Intoximeter.”  In the 2004 letter, the Commissioner
made no mention of instrumentation using the gas-chromatography method for “the
analysis of breath alcohol for evidentiary purposes.”  Both the 2006 and
2010 letters state that “[t]he instrumentation approved for analysis of breath
alcohol for evidentiary purposes is the DataMaster
using infrared technology,” and also omit gas chromatography as an approved
method for breath-alcohol analysis.
¶ 23.         The approval method for instrumentation for blood-alcohol
analysis exists within the same legal framework as the approval method of
breath-alcohol-analysis instrumentation.  See 23 V.S.A. § 1203(d)
(“Analysis of the person’s breath or blood . . .
shall be considered valid when performed according to methods approved by the
department of health. . . . The department of health shall use rule
making procedures to select its method or methods.” (emphasis
added)).  Like the instrumentation for breath-alcohol analysis, “[a]nalytical instrumentation and
analytical procedures [for blood alcohol] shall be approved by the Commissioner
of Health.”  Breath & Blood Alcohol Analysis Regulation, § C(II)(4).  In the 1992 approval letter from the
Commissioner, the sentence immediately preceding the
one approving breath-alcohol-analysis instrumentation reads, “For the analysis
of blood alcohol for evidentiary purposes, I continue to approve the
instrumentation of gas chromatography with flame ionization detection.” 
The approval letters from 1997, 2004, 2006, and 2010 were less specific,
omitting the phrase “with flame ionization detection.”  Including the
letter from 1992, none of these letters expressly identify any specific
instrumentation model; they do not even name an approved brand.  In the
context of blood-alcohol analysis, the Commissioner clearly interpreted
“instrumentation” in a more general sense than the one for which defendant’s
argue.
¶ 24.         Any doubt about the Commissioner’s view of the regulation
would be resolved by the Commissioner’s 2010 email to the state’s attorney,
which specifically stated that the approval letters pertain to “DataMaster instruments using infrared technology” and thus
“cover[] the former and new equipment.”  This history suggests that the
Commissioner did not view the rule as mandating greater specificity than naming
a general class of instruments, such as those using infrared technology,
although the letters usually went farther and named the DOH’s chosen
brand.  The more general language used to approve instrumentation for
blood-alcohol analysis lends further support to a broader understanding of
“instrumentation” as applied to approving the method to analyze breath-alcohol
for evidentiary purposes. 
¶ 25.         The DOH rule entrusts the approval of “analytical
instrumentation and procedures used for analysis of breath alcohol content for
evidentiary purposes” to the Commissioner.  Breath & Blood Alcohol
Analysis Regulation, § C(I)(6).  We have reasoned
that where the Commissioner is responsible for administering a statute or rule,
“the Commissioner necessarily has developed expertise in this administration.
 As a result, we give deference to the Commissioner’s interpretation.”
 Traveler’s Indem. Co. v. Wallis, 2003
VT 103, ¶ 14, 176 Vt. 167, 845 A.2d 316; see also Williston Inn, 2008 VT
47, ¶¶ 13-16 (deferring to Commissioner of Taxes’ interpretation of word
“lease” in tax statute because interpretation was reasonable and did not
undermine purpose of statute).    
¶ 26.         Here, the rule does not contain a definition of the term
“instrumentation.”  The rule does define “method,” however, as “an
analytical technique for performing chemical analyses,” and states that “[a]
method may require specific analytical instrumentation.”  Breath &
Blood Alcohol Analysis Regulation, § B(I)(3).  The
rule goes on to identify gas chromatography and infrared spectrophotometry as
the approved methods and explains the standards that the “analytical
instrumentation” that uses those methods must meet in order to comply with the
rule.  Therefore, the rule’s plain terms differentiate between “method”
and “instrumentation.”  The distinction is logical.  An “instrument”
is a tangible device; a “method” is an intangible process.  
¶ 27.        
We reject defendants’ argument that
“instrumentation” must refer to specific DataMaster
models, such as the DMT or BAC.  The Commissioner was reasonable in
interpreting “instrumentation” to refer to a class of instruments rather than
specific models.  In fact, although the DOH approval letters do not name
an approved brand for the gas chromatography method, the letters have
consistently approved the DataMaster brand for the
infrared spectrophotometry method.  This interpretation that
instrumentation may refer to a brand of machinery is consistent with the plain
meaning of the word “instrumentation” as well as the statutory framework and
our case law.  The dictionary definition of “instrumentation” is “[t]he application or use of instruments. . . . The study, development, and manufacture of instruments, as for
scientific use.”  American Heritage College
Dictionary 705 (3d ed. 1993).  By contrast, “instrument” refers to
“[a] device for recording, measuring, or controlling.”  Id.  An
instrument is designed to function in a certain way by employing a certain
method.  In selecting a certain method, one does not necessarily select a
certain instrument, as any number of different instruments may employ the same
method.  Instrumentation, by contrast, concerns
“the process of
developing, manufacturing, and using instruments”
more generally.  Random House Kernerman
Webster’s College Dictionary (2010).  The word refers to the type of
machinery used and its functional processes, rather than the specific device or
model.  
¶ 28.        
We presume that the DOH chose the term
“instrumentation” for a reason, and that had it intended an approach that would
require approval of specific breath-alcohol-machine models, it would have
chosen to articulate that requirement with the more fitting word
“instrument.”  See In re SP
Land Co., 2011 VT 104, ¶ 23, 190 Vt.
418, 35 A.3d 1007 (explaining that courts “presum[e]
that the drafters of the rules intended the plain and ordinary meaning of the
language used in the rules”); Slocum v. Dep’t of Soc. Welfare, 154 Vt.
474, 481, 580 A.2d 951, 956 (1990) (stating the “presumption that all language
in a statute or regulation is inserted for a purpose”). 
Since the rule states that the Commissioner must approve “instrumentation,” not
“instruments,” the Commissioner did not err in taking the more general approach
mandated by rule.     
¶ 29.         Moreover, the Commissioner’s approval of the DataMaster brand rather than a specific model accords with
the intent of the Legislature for a more general approach that affords
flexibility to the DOH in administering the statutory requirements.  In Rolfe,
we explained that the advantage of more general performance requirements “is
that the rules are generic and do not have to anticipate the operation of many
instruments that use infrared spectrophotometry to analyze breath
samples.”  166 Vt. at 8-9, 686 A.2d at 955. 
We went on the explain that “[t]he Legislature clearly intended a less specific
approach for infrared testing by providing in § 1203(d) that a sample would
be considered adequate if the infrared testing device did not reject it. 
Thus, it intended that the machine itself would find and indicate errors,
obviating the need to prevent errors by precisely regulating the breath-testing
procedure.”  Id.  In other words, we concluded because the
Legislature expected that the machines would be self-regulating, it decided to
require a less hands-on regulatory approach. See State v.
Wells, 172 Vt. 603, 606 & n.*, 779 A.2d 680, 683 & n.* (2001)
(mem.) (upholding trial court’s determination that DataMaster
meets DOH performance standards based on DOH chemist’s affidavit stating 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”).  The Legislature’s
intent was thus properly effectuated by DOH’s generic, non-instrument-specific
implementing rules.  
¶ 30.         In Rolfe, we further clarified that the DOH rule’s
delegating of authority to the Commissioner to approve the analytical
instrumentation and procedures “follows from the choice . . . to
adopt performance standards, which are not instrument-specific, and leave it to
the commissioner to ensure that any machinery will meet the performance
standards.”  166 Vt. at 9, 686 A.2d at 955. 
On this basis, we upheld the delegation of performance standards to the
Commissioner.  Id. at 8-9, 686 A.2d at 955. 
In short, our decision in Rolfe interpreted the enabling statute,
§ 1203(d), to provide a “generic” approach to the performance standards,
and concluded that the delegation of authority over performance standards to
the Commissioner was also proper precisely because the standards are not
“instrument-specific.”  Defendants’ contention that the Commissioner’s
approval had to reach such heights of specificity as to approve of every model
using infrared spectrophotometry is contrary to the statutory framework and our
case law interpreting it.[5]        
¶ 31.        
Defendants assert that the Commissioner’s
letters were insufficient to comply with the DOH rule because the technology
used in the DMT model is so distinctive from the BAC model that a separate
approval letter was required for each model.  For the reasons described
above, defendants’ arguments are inapposite.  The interpretation of the
term “instrumentation” as used in the DOH rule is not dependent on the differences
or similarities between models based on their software, calibration techniques
or other operating system differences; rather, it is based on the class of
instruments that employs a particular type of technology—in this case the DataMaster brand.[6]  Defendants do not dispute that both the BAC and DMT
models are DataMaster machines that use the same
basic technology.  For similar reasons, defendants’ arguments regarding
the timing of the letters—that the 2006 letter was issued before the State
purchased the DataMaster DMT machines and
consequently did not cover them, and that the 2010 letter was too late to apply
to defendant Harris—are not persuasive, as the Commissioner has consistently
approved the “DataMaster using infrared technology”
since 1992, and these approvals were sufficient to cover all DataMaster models, including the DMT.
¶ 32.        
Defendants further argue that even if the 2006
and 2010 approval letters covered the DataMaster DMT,
the Commissioner engaged in little to no due diligence in issuing these
approvals.  Defendants primarily rely on their allegations that the
devices experienced continuous malfunctions during the testing phase, leading a
DOH chemist to recommend purchasing machines from a different company, and the
Commissioner’s 2010 email stating that she would issue an approval letter in
response to a state’s attorney’s request.  We dispose of defendants’
latter allegation by noting that the Commissioner’s response to the state’s
attorney did not reflect a lack of due diligence, as suggested by defendants,
but rather her interpretation that the DOH rule did not require specific
approval of the DataMaster DMT and, consequently,
that prior approvals of the DataMaster generally
covered the DMTs at issue.  Defendants’ insinuation that the Commissioner
issued the 2010 approval letter in bad faith is unfounded.   
¶ 33.        
As to defendants’ former allegations, we
reiterate our highly deferential standard of review of administrative actions,
which we approach “with a gingerly step.”  In re
Agency of Admin., 141 Vt. 68, 74, 444 A.2d 1349, 1351 (1982).  “Bathed in a singleness of concern and anointed with
an aura of expertise, administrative actions have traditionally kept reviewing
courts an arm’s length away.”  Id.  Of course, “we must
endeavor to ensure that such deference does not result in unjust, unreasonable
or absurd consequences,” and “the presumption of validity for an agency’s
interpretations of its regulations may be overcome by the existence of compelling
indications of error in such interpretations.”  In re
Verburg, 159 Vt. 161, 165, 616 A.2d 237, 239
(1992) (quotations omitted).  Here, the trial court found that the
evidence showed that the DOH “conducted extensive testing of the DMT machine
between 2005 and 2008, and eventually concluded that it met all of the Vermont
performance standards.”  The trial court further found that successive DOH
commissioners properly relied on the expertise of subordinates that were
intimately familiar with the breath-alcohol testing machines and the testing
process employed to ensure their reliability in the field.  The trial
court’s conclusions are supported by the record, and we cannot say that the
Commissioner’s approval was exercised without due diligence.  
Affirmed.
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Chief
  Justice



 









[1] 
Justice Crawford was present for oral argument, but did not participate in this
decision.
 


[2] 
The consolidated case below included seven defendants, only two of which remain
in this appeal. 


[3]
 As of March 1, 2012, the breath-alcohol testing program, including
adoption of breath-testing rules, has been administered by the Department of
Public Safety instead of the Department of Health.  2011,
No. 56, §§ 14, 28(1).  For purposes of this opinion, we cite
to the legal framework as it existed at the time of defendants’ offenses.      



[4]
 Defendants also argued below that the admission of the breath-alcohol
test results violated their right to due process under the United States and
Vermont constitutions.  Because defendants do not raise this issue on
appeal, we do not reach it. 


[5] 
Defendants’ reliance on our decision in State v. McQuillan,
2003 VT 25, 175 Vt. 173, 825 A.2d 804, is misplaced.  Although
we described the regulations at issue in that case as providing that “the
specific instruments and procedures for analysis of breath samples had to be
approved by the Commissioner of Health,” id. ¶ 5, we did not
intend by that summary to undermine our reasoning in Rolfe that the
performance standards contained in the regulations were intended to be
non-instrument-specific.  To the contrary, we explained in the same
paragraph that the regulations “required certain methods of analysis for breath
samples and established non-instrument-specific performance standards.”  Id. 
Considering that the word “instrumentation” is used consistently throughout the
regulation, it would make little sense to require the Commissioner to approve
specific instruments under paragraph 6 when we have already determined that
paragraphs two through five require a less specific approach.
    


[6] 
The trial court cited several secondary sources and decisions by other Vermont
superior courts for the proposition that the DMT and BAC models are fundamentally
similar.  We need not evaluate the propriety of the court’s analysis
regarding the similarities and differences between the machines, because, in
any event, the DOH rule requires approval of instrumentation at a higher level
of abstraction than the specific models.   



