State v. Auger
| Decision Date | 03 December 1963 |
| Docket Number | No. 283,283 |
| Citation | 124 Vt. 50,196 A.2d 562 |
| Parties | STATE of Vermont v. Jacqueline AUGER. |
| Court | Vermont Supreme Court |
Robert D. Rachlin, State's Atty., St. Johnsbury, for plaintiff.
Joseph S. Wool, Burlington, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The State, by an appeal before judgment on the verdict, seeks to test the validity of the trial court's exclusion of a blood analysis in a driving-while-intoxicated matter, instituted under the 'implied consent' law. 23 V.S.A. §§ 1188-1194.
The first challenge to the appeal is a motion in this Court to dismiss because the certification from the Caledonia municipal court did not set out in writing the questions of law sought to be reviewed as required by Supreme Court Rule 2A. Permission to appeal was granted by the trial court on July 27, 1962. The rule in question was not promulgated until April 9, 1963, and could not apply to this case. Accordingly, the respondent's motion to dismiss is denied.
The State has briefed only the question of the proprity of the grounds of the trial judge's exclusion of the blood analysis evidence. The respondent takes the position that the question of a new trial is now out of the case, since the State failed to brief the denial of its motion for a new trial. This happens to be of little significance here, because, if the State establishes that evidence of the blood test should have been admitted, a new trial will follow as a matter of course. The respondent offered no evidence in her own behalf and did not take the stand. The evidence relative to the issues raised here all came from witnesses put on by the State and may be summarized as follows:
The respondent was questioned by a state police officer by the side of the road in Hardwick, Vermont. She acknowledged that she had been driving the car parked there off the travelled portion of the highway. The trooper asked her if she would accompany him to St. Johnsbury where she would be examined by a doctor. She readily consented, and the trip was made. Upon arrival at the doctor's office the respondent was informed of the three types of tests indicated by the statutes: blood, urine and breath analysis. (12 V.S.A. §§ 1188 and 1194.) After the tests were explained the respondent consented to having her blood tested for alcoholic content.
The doctor took a blood sample, placed it in two glass test tubes and passed it to the trooper. The officer then inserted the stoppers and put a gummed label with his signature and the date on it over each stopper as a seal, in such a manner that the stopper could not be removed without breaking the seal. The samples were placed in cardboard mailing tubes and again sealed then placed in a mailing envelope with another gummed label seal in place over the sealed gum envelope flap. The package also contained a form filled out by the doctor identifying the person from whom the blood was taken, and giving the time, place and occasion for the taking of the blood.
The trooper mailed this kit by registered mail to the state health laboratory. Although the person who signed the registry receipt and picked up the kit at the post office in Burlington was not identified, the chemist for the state laboratory testified that all of the seals were intact and unbroken when he received the kit. One of the two tubes was poened and analyzed by the chemist, then the analysis and the remaining blood sample were turned over to the custody of the laboratory director.
The respodent objected to the admission of the blood analysis on several grounds. One of these turned on the fact that the sample of blood withdrawn for the possible use of the respondent was kept at the state laboratory, rather than by either the state trooper or the examining physician. The trial court sustained this objection and excluded the blood analysis evidence on this ground.
The position of the respondent is based upon these two statutory sections:
The respondent's construction requires that the portion of section 1194 relating to the preservation of urine and breach specimens be read back into section 1190. Perhaps it is enough to say that the language of these sections, as they stand, does not require the retaining of a blood smaple by the doctor or state trooper.
Such a reworking of statutory language will not be undertaken if the statutory provisions, as they stand, are meaningful in connection with their avowed purpose. The use of blood analyses in these cases long antedates the present statutes. See State v. Gignac, 119 Vt. 471, 129 A.2d 499. The analyses have been regularly carried out and the blood samples stored by the state laboratory as one of its duties. This may have influenced the Legislature to leave this practice intact by omitting the requirement that the physician of officer concerned retain the sample of blood, even though it specified that there be such a sample available for the respondent. 23 V.S.A. § 1190.
An indication that sections 1190 and 1194 are not to be read together in this connection arises from the action of the 1963 Legislature in amending only section 1190 so as to include police chiefs and county sheriffs among those authorized to request blood tests. No. 103 of the Acts of 1963. A corresponding enlargement of section 1194 was not made. If the respondent's view is adopted, the statutory language leaves unanswered the propriety of a police chief or sheriff keeping custody of a blood sample.
Furthermore, the language of section 1194 indicates that either a physician or an enforcement officer of the department of public safety can administer the urine and breath analysis tests. Without evidence of the mechanics of these tests, we will not say this is so, but the statutory words suggest this may be the case. This may explain why the amendment of section 1190 was not extended to section 1194. There appears to be sufficient difference in the administration of blood tests and urine and breath tests to induce the Legislature to make special provision for the preservation of urine and breath samples for the benefit of the respondent. Intermingling the provisions would disrupt this statutory pattern unnecessarily and to no advantage. The exclusionary ruling of the trial court cannot be supported on these grounds.
The respondent calls our attention to other grounds raised below which she says support the exclusion of the blood analysis evidence. If that exclusion was proper on any ground, the State has no basis for complaint and the respondent is entitled to retain the benefit of the 'not guilty' verdict. This is merely a more forceful application of the principle which permits affirmance if the questioned ruling can be supported on any legal ground. State v. Rowell, 120 Vt. 166, 170, 136 A.2d 349.
It is the respondent's claim that the blood-taking procedure prescribed by the statutes was violated in two other particulars. She says that since State v. Ball, 123 Vt. 26, 179 A.2d 466, set up a requirement of strict compliance with these procedures, either violation supports the exclusion of the blood test results.
Her first claim of impropriety revolves around the language of 23 V.S.A. § 1188, titled 'Consent to blood test implied':
'Any person who operates or attempts to operate a motor vehicle upon a...
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