State v. McQuillen

518 A.2d 25, 147 Vt. 386, 1986 Vt. LEXIS 428

• Court: Supreme Court of Vermont
• Decided: October 3, 1986
• Docket: 85-088
• Status: Published

Opinions

Gibson, J.

Defendant was convicted after trial by jury of operating a vehicle while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). He appeals on the ground that the admission of the numerical result of a blood-alcohol-content test, without evidence relating the test result back to the time of operation, was prejudicial and contravenes the holding in State v. Dumont, 146 Vt. 252, 255, 499 A.2d 787, 789 (1985). We agree. Accordingly, we reverse and remand.

In this case, an expert testified as to the minimum number of standard drinks a person weighing either 150 or 175 pounds would have to consume in order to attain a .10% blood alcohol content (B.A.C.); that the average alcohol elimination rate is .015% per hour; and that defendant’s B.A.C. was .13% The State contends that the theoretical testimony regarding the relationship of weight and alcohol consumption, considered in conjunction with the average elimination rate, rendered the numerical test result meaningful to the jury, even though the result was not related back to the time of operation.

The argument misconstrues our holding in Dumont. The expert testimony relied on by the State fails to give meaning to the numerical test result as an indicator of this defendant’s B.A.C. at the time of the offense. In fact, to the extent that this evidence purported to explain the .13% figure, it could only have added to the confusion of the jury because of the State’s failure to establish a logical link between this evidence and the blood level of the defendant at the moment of the offense.

It is important that evidence of the numerical test result be treated with care in a prosecution under 23 V.S.A. § 1201(a)(2). Under the related provision of 23 V.S.A. § 1201(a)(1), it is a violation of law for a person to operate a motor vehicle on a highway while there is .10% or more by weight of alcohol in his blood. Relating the numerical test result back to the time of operation is an important safeguard against the possible misapplication of this technical evidence by the jury. When the related back numerical result is introduced into evidence, 23 V.S.A. § 1204(a)

* provides a ready guide to the trial court for instructing the jury as to what inference it may draw or presumption it may apply to that result. See, e.g., State v. Dacey, 138 Vt. 491, 497, 418 A.2d 856, 859 (1980) (in § 1201(a)(2) prosecution, State is entitled to a jury instruction that there is a permissive inference that defendant was under the influence if jury finds that defendant had a blood alcohol content of .10% or more at time of operation).

We note that, in this case, only thirty minutes passed between apprehension of the defendant and application of the test, while in Dumont the test was administered one hour and ten minutes after apprehension. Nevertheless, we cannot say that the elapsed time here was de minimis. If the State elects to introduce numerical results into evidence, it should be prepared to establish the relevance of those results, as we clearly indicated in Dumont. In the event the State does not introduce the required relation-back evidence, we reiterate that the test result is not thereby rendered irrelevant. Under these circumstances, while the State may be foreclosed from utilizing the actual numerical result, evidence that the test “demonstrates that the defendant did, in fact, consume intoxicating liquor” may still be introduced. Dumont, supra, 146 Vt. at 255, 499 A.2d at 789.

Reversed and remanded.

Section 1204(a) states:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating, attempting to operate or in actual physical control of a vehicle on a highway, the amount of alcohol in the person’s blood or breath at the time alleged as shown by analysis of the person’s blood or breath shall give rise to the following presumptions:

(1) If there was at that time 0.05 per cent or less by weight of alcohol in the person’s blood or breath, it shall be presumed that the person was not under the influence of intoxicating liquor.

(2) If there was at that time in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the person’s blood or breath, such fact shall not give rise to any presumption that the person was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor.

(3) If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood or breath, as shown by analysis of the person’s blood or breath, it shall be presumed that the person was under the influence of intoxicating liquor in violation of section 1201(a)(2) or (3) of this title.