State v. Batchelor, 340-75
| Decision Date | 07 June 1977 |
| Docket Number | No. 340-75,340-75 |
| Citation | 135 Vt. 366,376 A.2d 737 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Franklin M. BATCHELOR. |
John A. Rocray, Windham County State's Atty., Brattleboro, for plaintiff.
John S. Burgess, Brattleboro, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
Appellant was convicted below, after jury trial, of violation of 23 V.S.A. § 1201(a)(1), by operating a motor vehicle on a public highway in the Town of Wilmington with .10 per cent or more of alcohol in his blood, as shown by chemical analysis of his breath. He briefs claimed error in failing to grant his motion for judgment of acquittal, refusal to grant his motion for mistrial, and errors in the charge to the jury; all raised, as he claims, by a timely motion for new trial.
We note at the outset that the purported motion for a new trial was not timely filed under V.R.Cr.P. 33, requiring such filing within 10 days from date of verdict. Appellant argues that the time should run from date of judgment, but such is not the rule, and under V.R.Cr.P. 45(b), the time may not be enlarged. We do not, therefore, review the discretion of the trial court in denying the motion, but simply determine whether the claimed errors, if seasonably objected to otherwise, merit reversal as a matter of law.
We consider first those claimed errors which, if sustained, would require a judgment of acquittal. Appellant says that the State (a) did not prove operation of a motor vehicle on a public highway in the Town of Wilmington, (b) did not offer evidence showing blood alcohol content by weight in excess of .10 per cent, (c) did not show the chain of evidence to have been properly preserved, and (d) deprived him of his statutory right to obtain a breath sample for independent analysis. We find no merit to any of these contentions.
A reading of the record does indeed indicate some confusion about the precise location of the site where appellant was arrested. But it is quite clear that he was first noted by the arresting officer, who identified him, at a point in the center of Wilmington, and trailed, to the point of arrest, along Route U.S. 9. This is clearly operation within the Town of Wilmington, as charged, and the point of arrest is neither particularly important or controlling.
The record also indicates that the expert called by the State testified to a blood alcohol content by weight of .26 per cent, in response to the first question asked him on this point. That later answers failed to use those specific words is not material; no other standard was referred to, and it seems quite clear that the general testimony was, fairly viewed, couched in the statutory terms. We also note a clear chain of testimony relating to sample preservation, from taking by the arresting officer through certified mail transmission, receipt and testing. The certified mail receipt was admitted without objection, subject to connecting up, and there was no later motion to strike. Test results came in without objection.
The record also shows that appellant was advised of his statutory right to a breath sample for his own independent analysis. It is barren of any testimony that he ever requested one. And we find appellant's contention that no such sample was preserved to be without merit. The State's expert did indeed use two samples in conducting his test, but there were three taken at time of arrest, a fact which appellant seems to ignore.
We are convinced that appellant's motion, made and renewed, for a judgment of acquittal, was properly denied, not because he incorrectly analyzes the law, but because the record does not support his factual contentions. There were no defects in proof in the respects he complains of, and our attention must be directed to those claimed errors which would merit reversal rather than judgment of acquittal.
These claimed errors have, in our view, much more substance. They involve (a) admission over objection of testimony as to prior arrests for driving while intoxicated, and denial of resulting motion for mistrial, (b) error in failing to inquire of appellant his choice as to jury instruction on his failure to take the stand, and (c) error in charging the jury relative to the statutory presumption of being under the influence of intoxicating liquor, set up by 23 V.S.A. § 1204(a)(3) where there is shown to be 0.10 per cent or more by weight of alcohol in a person's blood or breath.
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