State v. Ball

• Decision Date: 07 March 1962
• Docket Number: No. 46,46
• Citation: 123 Vt. 26,179 A.2d 466
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Glendon C. BALL.

Page 466

179 A.2d 466

123 Vt. 26

STATE of Vermont v. Glendon C. BALL.

No. 46.

Supreme Court of Vermont.

March 7, 1962.

Peter F. Langrock, State's Atty., Middlebury, for plaintiff.

John T. Conley, Middlebury, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

BARNEY, Justice.

A sample of blood taken from the respondent after an accident was offered in evidence at his trial for driving while intoxicated. The respondent claimed that the severity of his injuries kept him unconscious from the time of the accident until some time after the blood sample was taken. He was not under arrest when a doctor called to the scene took the blood at the request of the Bristol chief of police. No evidence tending to show any form of consent by the respondent to the taking of the sample was introduced. Although the doctor testified during the state's case and was cross-examined by the respondent, neither side inquired of him as to whether the respondent's consent was asked or given prior to the taking of the blood. The doctor did say that he found the respondent conscious at the scene of the accident, and that at the hospital he was conscious and, although he would lapse into a deep sleep, he would respond to questioning.

The sample of blood was admitted into evidence at the trial in Addison Municipal Court over the objection of the respondent. At the close of all of the evidence the respondent moved to have all the testimony relating to the blood sample and its analysis stricken. The trial judge granted the motion and directed a verdict of acquittal. The state concedes that without the blood analysis evidence, there was not enough evidence of intoxication to entitle it to take the case to the jury. The court stated that its action was based on the failure of the state to comply with the provisions of 23 V.S.A. §§ 1188-1194 in obtaining the blood sample.

These statutory sections were all passed in a single enactment as No. 212 of the Acts of 1959. In substance, they provide that upon arrest of a person for an offense involving the operation of a motor vehicle under the influence of intoxicating liquor or drugs, he thereupon is presumed to have consented to being tested to determine the alcoholic content of his blood, by either blood, urine or breath sample analysis, at his option. This presumed consent is limited, in the case of blood samples, to those taken by a physician, acting in a careful and prudent manner, at the request of an enforcement officer of the department of public safety. When the statutory prerequisites have been complied with, a driver may refuse to take all tests only at the risk of having his right to operate a motor vehicle suspended for six months, if the arresting officer's belief as to his intoxicated condition had reasonable basis. On trial, the percentage of alcohol in the blood becomes the subject of presumptions: 0.05 per cent or less means a conclusive presumption that the driver was not under the influence of intoxicants; more that 0.05 but less than 0.15 gives rise to no presumption either way; and more than 0.15 raises a presumption that the driver was under the influence of intoxicating liquor.

The state took an exception to the directing of the verdict, whereupon the court withheld judgment and exercised its discretionary power to pass the question to this Court. The issues are narrow. The state concedes that it did not follow the statutory procedures that bring 'implied consent' into play. The respondent correctly points out that there is nothing in the evidence to raise an issue of actual consent. The question becomes, then, can a nonstatutory blood test be received into evidence when proof of consent is lacking.

This is the very question a majority of the Court found to be asked and answered affirmatively in State v. Pierce, 120 Vt. 373, 141 A.2d 419. Two events, both urged by the respondent in support of the lower court's ruling, compel a re-examination of our former holding which would otherwise control. Both took place subsequent to the decision in the Pierce case.

The most recent event was the decision of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. In that case police officers forcibly entered and searched premises suspected of being the hiding place of a fugitive. The occupant objected to their entry without warrant and the police, in the course of their violent entry, roughly handled her. They searched all parts of her quarters and found no trace of the wanted man, but did uncover on the premises some four pictures, alleged to be pornographic, left behind by a former lodger. On this basis Miss Mapp was charged and convicted under an Ohio statute making it criminal to possess such materials. Until the matter was determined by the Supreme Court the issue argued was the constitutionality of the Ohio law making mere knowing possession of such materials a crime. The majority opinion turned the decision on the issue of an illegal search and seizure in violation of the Fourth Amendment. It stands for the proposition that the requirements of due process under the Fourteenth Amendment carry over to the state courts the prohibitions of the Fourth Amendment of the Federal Constitution. It is now declared law that it is unconstitutional to receive evidence in state courts which was obtained in violation of rights guaranteed under the Fourth Amendment. That holding is binding on this Court. People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478.

However, the Supreme Court has left in force an opinion written by the spokesman for the majority in the Mapp case that specifically holds that taking blood from an unconscious person in a competent manner is not a violation of his constitutional rights. Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448.

The state says that since the Mapp case applies only to evidence obtained in violation of constitutional rights, rights not here violated, enough is left of the doctrine of State v. Stacey, 104 Vt. 379, 401, 160 A. 257, 747, to require the lower court to admit the blood analysis. The Stacey case stands for the proposition that relevant evidence is not rendered inadmissible because it was illegally obtained.

This contention must be examined in the light of the second event referred to previously. This was the passage of No. 212 of the Acts of 1959 set out above. The respondent claims that it was intended that these statutory procedures for obtaining evidence of the alcoholic content of the blood were intended to be the exclusive manner by which such evidence could be made admissible without the consent of the respondent. This the state disputes, but also takes the stand that even were the statutes so intended, the Stacey doctrine would still permit admission of these blood tests. This amounts to saying that the legislature is powerless to affect admissibility by statute.

The law is otherwise. Crowley v. Goodrich, 114 Vt. 304, 306, 44 A.2d 128, 162 A.L.R. 691; McKinstry v. Collins, 76 Vt. 221, 228, 56 A. 985. So long as the legislature does not run afoul of rights protected by constitutional...