2012 VT 90


State v. Spooner (2011-312)
 
2012 VT 90
 
[Filed 19-Oct-2012]
 
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.
 
 

2012 VT 90

 

No. 2011-312

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Orange Unit,


 


Criminal Division


 


 


Nicholas Spooner


May Term, 2012


 


 


 


 


Harold
  E. Eaton, Jr., J.


 

Michael Kainen, Orange County
Deputy State’s Attorney, Chelsea, for Plaintiff-Appellant.
 
Matthew F. Valerio, Defender
General, Anna Saxman, Deputy Defender General, and 
  Robert Reagan, Legal Intern, Montpelier, for
Defendant-Appellee.
 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Zonay, Supr. J., 
                    
Specially Assigned
 
 
¶ 1.            
REIBER, C.J.   The State of Vermont appeals from the
trial court’s dismissal of a civil driver’s license suspension complaint. 
The trial court found that the statutory requirements for civil suspension had
not been met.  We affirm. 
¶ 2.            
The following facts are uncontested.  On April 30, 2011, at 11:51
p.m., defendant was stopped in Newbury by Vermont State Trooper David Shaffer
after ignoring a “Road Closed¾High
Water” sign and crossing a flooded roadway.  Trooper Shaffer, smelling
alcohol, asked defendant to perform a preliminary breath test and field
sobriety tests.  Based on the results of those preliminary tests,
defendant was taken to the Bradford Police Department, where Trooper Shaffer
performed a series of breath tests with the station’s DataMaster
DMT blood-alcohol-content-measurement device.[1]
¶ 3.            
At 1:51 a.m., Trooper Shaffer obtained a reading of .101 from the first
DMT test.  Defendant requested a second test.  At 1:52 a.m., the DMT
device returned a reading of “standard out of range.”  Trooper Shaffer
attempted to perform a third test, but received a report of “invalid sample” at
1:59 a.m.  On the fourth try, at 2:01 a.m., the DMT reported a
blood-alcohol content of .109.  Defendant was informed of his right
to obtain an independent test.
¶ 4.            
Defendant was processed for driving while under the influence, and the
State sought civil suspension of defendant’s license.  On August 3, 2011,
a final civil suspension hearing was held pursuant to 23 V.S.A.
§ 1205(h).  At the hearing, defendant argued primarily that the
statutory requirements for civil suspension had not been met. In particular,
defendant raised the following issues: (1) whether valid and reliable testing
methods were used and whether the results of the tests were accurate and
accurately evaluated, and (2) whether the requirements of 23 V.S.A. § 1202
were satisfied.  Most specifically, defendant contended that he did
not receive the statutorily permitted second test under § 1202(d)(5),
which allows a motorist who submits to an evidentiary breath test to “elect to have a second infrared test administered
immediately after receiving the results of the first test.”  Defendant argued that the second test was
invalid because it was not taken in compliance with the testing procedure
adopted by the Vermont Criminal Justice Training Council and the Vermont
Department of Health in the DataMaster DMT Addendum
to its breath testing manual.    
¶ 5.            
The manual, which dictates the proper operating procedures for DMT
testing, specifies that DMT devices can experience fatal and nonfatal
errors.  Nonfatal errors are those that “may be remedied by the test
operator,” and once “the error has been cleared,” the testing procedure can be
resumed.  When a fatal error occurs, however, the manual provides that the
DMT should be designated “out of service” and a detailed message should be left
for the DMT supervisor.  The manual states that a report of “standard out
of range” is a fatal error.  After receiving a fatal error, the manual
instructs that the officer should “proceed to a different DataMaster,”
and, “[i]f another DataMaster
is not reasonably available, blood may be drawn.”  The manual’s stated
objective is for police officers to operate the DMT machine “in accordance with
the specified procedure incorporated in this training.”
¶ 6.            
At the final merits hearing, the State presented testimony from its
forensic chemist, Amanda Bolduc.  Ms. Bolduc testified that she believed
that the DMT device was “functioning properly at the time of the test[s]” and
that there was no reason to doubt the reliability of the result obtained from
the successive test effort that yielded the .109 BAC.  Although the manual
indicates that a machine should be taken out of service following the receipt
of a fatal error, such as a “standard out of range” reading, Ms. Bolduc opined
that if an officer tries the device again and it gives a valid reading, “it’s fine.”  She noted that the Department of Health’s
manual uses the word “should” not “must” when describing the procedures to
follow after obtaining a “standard out of range” reading.  During
cross-examination of Ms. Bolduc, defendant sought to cast doubt on the
reliability of the majority of DMT machines and the validity of their test
results, questioning Ms. Bolduc about her own expressed frustration with the
devices, their malfunctions and glitches, and in particular, her
dissatisfaction with one device that emitted plumes of smoke when turned on.
¶ 7.            
In a memorandum of law submitted after the final hearing, the State
contended that Ms. Bolduc’s testimony established that the testing methods
complied with the Department of Health’s rules. As a result, the State
maintained, the testing methods and results were entitled to a presumption of
validity, reliability, and accuracy.
¶ 8.            
The trial court dismissed the State’s contention that use of the term
“should” in the Department of Health’s manual allowed the officer to exercise
his own discretion with respect to the testing procedure.  The court determined
that the State did not comply with its own testing procedures and that this
failure to adhere to the protocol deprived defendant of a valid and reliable
second test as required by § 1202.  Noting that the civil-suspension
statute requires compliance with the testing statute, the trial court found the
State had failed to adequately establish the elements necessary for the civil
suspension and dismissed the complaint.  The State appealed.  
¶ 9.            
The State urges two primary grounds for reversal. First, the State
argues that the officer’s failure to administer the second breath test in
compliance with the State’s own training manuals is insufficient grounds to
deem the second test unreliable, and thus inadmissible.  The court cannot,
the State maintains, “exclude” breath-test results based on the “mere
possibility” of inaccuracy. Second, the State contends that the first breath
test was reliable—notwithstanding the later nonfatal and fatal error
messages—and was, in and of itself, sufficient to sustain a civil suspension of
the defendant’s license.  Neither argument is availing.   
¶ 10.         As a
threshold matter, we note that the trial court predicated its dismissal of the
civil-suspension complaint not on the admission or exclusion of any breath-test
evidence but rather on the State’s failure to comply with every element of the
civil-suspension regime.  The trial court found that the trooper’s
departure from the Department of Health’s operating protocol undermined the
reliability of the later breath test effort that yielded a BAC result. 
That irregularity, the court reasoned, deprived defendant of a statutory right
to a valid and reliable second test, negating an element necessary to sustain
the State’s  civil complaint.
¶ 11.        
The trial court’s determinations represent both findings of fact and
conclusions of law, which we analyze according to their respective standards of
review.  Under the civil-suspension statute, a trial court is expressly
authorized to consider the reliability of testing procedures and the accuracy
of results.  See § 1205(h)(1)(D)
(final-hearing issues include “whether the testing methods used were valid and
reliable, and whether the test results were accurate and accurately
evaluated”). Whether a test is reliable or accurate is a factual finding. 
We review the trial court’s factual finding for clear error, “recognizing that
the trier-of-fact is in the best position to
determine the weight and sufficiency of the evidence presented.”  State
v. Santaw, 2010 VT 111, ¶ 6, 189 Vt. 546, 12 A.3d 548.  
¶ 12.        
The trial court’s assessment of the tests’ reliability necessarily
involved an assessment of the credibility of Ms. Bolduc’s testimony. Ms. Bolduc
testified that if a fatal error occurs during an officer’s administration of a
DMT breath test, the officer may try another test, and if the machine works
during that test, “it’s fine.”  This testimony contradicted the Department
of Health’s manual, which provides that, in the event of a fatal error, the
machine should be taken out of service, presumably because the machine did not
operate properly.  Because credibility determinations are solely within the province of the fact
finder, Omega Optical, Inc. v. Chroma Tech.
Corp., 174 Vt. 10, 20-21, 800 A.2d 1064, 1071 (2002), the court did not err
in choosing to discredit Ms. Bolduc’s testimony where it directly contradicted
the State’s own training manual.  The court properly grounded its decision
that the second test to actually yield a result was not conducted in a valid or
reliable manner in accord with a methodology
prescribed by the Department of Health.  The
finding is supported by the record below and is not clearly erroneous.
¶ 13.        
It is true, as the State points out, that “[e]vidence that the test was taken and evaluated in compliance
with rules adopted by the department of health shall be prima facie evidence
that the testing methods used were valid and reliable and that the test results
are accurate and were accurately evaluated.” § 1205(h)(1)(D).[2] 
Here, however, the second successful test was definitively not conducted
in compliance with the State’s own procedures.  Where an officer
does not comply operating procedures, the fact finder
is free to find the converse of that presumption.   
¶ 14.         On
appeal, the State also argues that the validity of the second test’s results
was immaterial because the first breath test was reliable and therefore sufficient
on its own to sustain a civil suspension.  The trial court found that a
reliable second test was a necessary element of the civil-suspension procedure
that the State failed to establish.  We review such a conclusion of law de
novo. See e.g., State v. Therrien, 2011 VT
120, ¶ 9, ___ Vt. ___, 38 A.3d 1129. (“The interpretation of a
statute is a question of law that we review de novo.”).  In interpreting statutory
language, “if the plain language is clear and
unambiguous, we enforce the statute according to its terms.” Id. (citation omitted). 
We also have recognized that “legislative intent is most truly derived
from a consideration of not only the particular statutory language, but from
the entire enactment, its reason, purpose and consequences.”  State v. Robitaille, 2011 VT 135, ¶ 12, ___ Vt. ___, 38 A.3d 52
(quotation omitted). 
¶ 15.          Under
Vermont law, a civil suspension is a summary proceeding designed to rapidly
remove potentially dangerous drivers from public roadways.  State v.
Anderson, 2005 VT 80, ¶ 3, 179 Vt. 43, 890 A.2d 68; State v. Strong,
158 Vt. 56, 61, 605 A.2d 510, 513 (1992) (“The summary suspension scheme serves
the rational remedial purpose of protecting public safety by quickly removing
potentially dangerous drivers from the roads.”).  Under the
civil-suspension statute, an officer issues a notice of intention to suspend
when an evidentiary blood-alcohol test yields a measurement in excess of the
legal limit. § 1205(c).  In addition to a preliminary hearing, a
defendant may request a final hearing to review the merits of the
suspension.  § 1205(h)(1).  At the
final hearing, a judge is permitted to consider only a narrow range of
statutorily-prescribed issues. § 1205(h)(1)(A)-(E). 
Among those limited issues a judge must consider are whether the testing
methods used to establish a driver’s blood-alcohol content were valid and
reliable.  § 1205(h)(1)(D).  The judge
also must determine whether the State complied with the requirements of the
blood-alcohol-testing statute, § 1202.  See § 1205(h)(1)(E).  Under the testing statute, “a person . . .
may elect to have a second infrared test administered immediately after
receiving the results of the first test.”  § 1202(d)(5).
The second test serves the obvious purpose of verifying the accuracy of the
first.  As the trial court observed, this second test must necessarily be
as reliable as the first in order for it to serve this function.  Thus,
read in light of one another, § 1205(h)(1)(D)-(E) and § 1202(d)(5) dictate
that if a person elects to have a second test, the methods of that test are
reviewable for validity and reliability by the court at a final
civil-suspension hearing.
¶ 16.         The
State contends that the existence of a first, valid and reliable test is
sufficient for civil suspension. To accept this assertion would render portions
of both the testing statute and the civil-suspension review procedures
meaningless.  See 23 V.S.A. § 1205(h)(1)(E)
(permitting final-hearing review of compliance with § 1202). 
“Generally, we do not construe a statute in a way that renders a significant
part of it pure surplusage.” In re Lunde,
166 Vt. 167, 171, 688 A.2d 1312, 1315 (1997) (quotation omitted). 
The civil-suspension statute clearly calls on the trial judge to review both
the reliability of any evidentiary tests conducted and compliance with
§ 1202.  Section 1202, as we have observed, affords a person a right
to a second test, which must be conducted in a reliable fashion.  If a
court finds that the second test was conducted in an unreliable fashion, the
State has necessarily failed to carry its burden to establish compliance with §
1202, and the court must then deny the civil suspension of a defendant’s
license.  
¶ 17.        
On appeal, the State relies on a series of criminal drunk-driving cases
dealing with the admissibility of blood-alcohol test results.  This
reliance is misplaced.  Although the cases the State cites do relate to
the validity and reliability of evidentiary breath tests, they do so in a
different context not directly implicated in this case.  The State puts
particular emphasis, for example, on State v. Vezina,
2004 VT 62, 177 Vt. 488, 857 A.2d 313, in which we declined to require
suppression of evidence from a first breath test in a criminal drunk-driving
case simply because a second test was not administered in accordance with state
procedures and testing law.  In Vezina, a
valid second test was not an element of the criminal drunk-driving charge the
State sought to prove.  See 23 V.S.A. § 1201(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 (2) when the person is under the influence of
intoxicating liquor.”). In the present case, however, statutory compliance was,
as the trial court correctly found, an element the state had the burden to
establish to prevail in its civil-suspension complaint.  See § 1202(d)(5); § 1205(h)(1)(E).  That is to say, unlike in Vezina, the issue here is not the admissibility of
either breath test.  Nor is the question the validity of the first test;
the issue is the absence of a sufficiently reliable second test.
¶ 18.        
In sum, the trial court’s factual findings regarding the unreliability
of the second test were not clearly erroneous, and the court correctly
concluded that the lack of a reliable second test deprived the State of an
essential element to establish its civil-suspension case.    
Affirmed. 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1] 
Trooper Shaffer took defendant to the Bradford Police Department, rather than
the Bradford State Police Barracks, where Trooper Shaffer is based, because the
DMT at the state police barracks was out of order.


[2]
 At the time this case was initiated, the Department of Health was
responsible for promulgating the rules governing use of the DMT devices. 
Section 1205(h)(1)(D) now provides that the Department
of Public Safety is responsible for the rules’ adoption. See
2011, No. 56, § 16, effective March 1, 2012.   



