State v. Brooks, No. 93-018

Docket NºNo. 93-018
Citation162 Vt. 26, 643 A.2d 226
Case DateNovember 29, 1993
CourtUnited States State Supreme Court of Vermont

Page 226

643 A.2d 226
162 Vt. 26
STATE of Vermont
v.
Gerald H. BROOKS.
No. 93-018.
Supreme Court of Vermont.
Nov. 29, 1993.
Motion for Reargument Denied May 3, 1994.

Page 227

[162 Vt. 27] Gary S. Kessler, Supervising Appellate Prosecutor, State's Attys. and Sheriffs Depart., Montpelier, for plaintiff-appellant.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and William E. Wargo, Asst. Atty. Gen., Burlington, for Depart. of Health.

Steve Dunham, Public Defender, St. Albans, for defendant-appellee.

[162 Vt. 26] Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

The State appeals from the district court's interlocutory ruling that evidence of blood-alcohol content (BAC) measured by DataMaster infrared testing device is inadmissible in either a DUI civil suspension or a DUI criminal proceeding. Well over one hundred cases were governed by the court's ruling. We reverse.

While driving a motor vehicle on Route 7 in St. Albans, defendant was stopped by a state trooper for an equipment defect. According to police affidavits, during the stop, the trooper suspected defendant was DUI and conducted field sobriety tests. Defendant eventually submitted [162 Vt. 28] to a DataMaster breath test, resulting in a BAC reading of .175%. Defendant requested a second DataMaster test, which was performed shortly after the first. The second test resulted in a BAC of .183%, a reading that deviated slightly less than 5% from the first. Defendant was then charged with DUI.

Defendant moved to exclude the DataMaster test results on grounds that the Department of Health had not properly promulgated rules to trigger a presumption of validity under 23 V.S.A. § 1203(d) ("analysis performed by the state shall be considered valid when performed according to a method or methods selected by the department of health") and because the DataMaster testing device did not conform to department performance standards. The court held the department had not satisfied the statute's rulemaking requirement. This determination was not appealed and is not before us.

Page 228

The sole issue on appeal is whether the State is precluded from demonstrating the scientific reliability of the DataMaster infrared testing equipment and testing methodology, in general, and the trustworthiness of defendant's test result in particular. The trial court ruled that even if the State could show, without using the statutory presumption, that the test results were reliable, they would nonetheless be inadmissible. The court acknowledged that its ruling directly contradicted our holding in State v. Mills, 133 Vt. 15, 17, 328 A.2d 410, 411-12 (1974) (even if presumption of test's validity is not triggered, test results are admissible upon proper evidentiary foundation), but contended that Mills did not apply following the amendment of 23 V.S.A. § 1203, the statute governing the admissibility of the test. Defendant now urges that the amended version of 23 V.S.A. § 1203 requires a reevaluation of Mills.

In Mills, defendant contended that 23 V.S.A. § 1203(a) required the Department of Health to adopt rules for chemically testing breath samples before a given test result was admissible in a DUI prosecution. Id. at 16-17, 328 A.2d at 411. At the time Mills was decided, 23 V.S.A. § 1203(a) provided:

Chemical analysis of the person's breath or blood shall be considered valid under the provisions of this section when performed according to methods approved by the department of health.

In 1989 the legislature amended that section, requiring that infrared testing methods be adopted by rulemaking and that such tests "shall be analyzed in compliance with rules adopted by the [162 Vt. 29] department of health." 23 V.S.A. § 1203(d) (emphasis added). The legislature also provided an identical presumption of validity, stating: "[Infrared breath] analysis performed by the state shall be considered valid when performed according to a method or methods selected by the department of health." Id. The one difference--an explicit mandate for rulemaking in the amended version--is the basis for defendant's contention that Mills is distinguishable and not contrary to the court's ruling that DataMaster evidence is inadmissible.

The trial court's initial rejection of the State's offer of the DataMaster evidence under a presumption of validity was mandated by § 1203(d) because rulemaking had not been properly conducted. The court, however, went further and inferred that § 1203(d) required suppression of the DataMaster results in any instance where rulemaking was not accomplished. This position is not borne out by analogous cases. In the absence of a specific legislative sanction, it is improper to infer consequences not provided in the statute. See, e.g., State v. Skilling, 157 Vt. 647, 648, 595 A.2d 1346, 1347 (1991) (statutory time periods to give notice and hold hearing in civil suspension for DUI, with no sanction provided for failure to comply, are directory only; consequences for failure to comply may not be judicially inferred); see also In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890, 892-93 (1987) ("In the absence of express statutory language to the contrary," 26 V.S.A. § 201(b)'s requirement that candidates for architect's license be notified of exam results within 30 days is merely directory.). Furthermore, when interpreting the notice requirement for a license suspension under 23 V.S.A. § 1205(d), we held that the...

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42 practice notes
  • Com. v. Smith, No. 436 CAP.
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 27, 2010
    ...31, 35-40 (Miss. 2003); Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862, 867 (2001); Robinson, 923 S.W.2d at 556; State v. Brooks, 162 Vt. 26, 643 A.2d 226, 229 (1993); Bunting v. Jamieson, 984 P.2d 467, 471 (Wyo.1999). Indeed, if the Court is going to interpret Frye so narrowly as......
  • EST. OF GEORGE v. LEAGUE OF CITIES & TOWNS, No. 08-374.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 15, 2010
    ...v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by this Court in State v. Brooks, 162 Vt. 26, 643 A.2d 226 (1993), did not apply to workers' compensation claims being tried in superior court. He maintained that the trial court was inst......
  • Phillips v. Industrial Machine, No. S-97-1263.
    • United States
    • Supreme Court of Nebraska
    • July 16, 1999
    ...E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995); State v. Crosby, 927 P.2d 638 (Utah 1996); State v. Brooks, 162 Vt. 26, 643 A.2d 226 (1993); Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994); S......
  • Savage v. State, No. 82
    • United States
    • Court of Special Appeals of Maryland
    • August 4, 2017
    ...1995); Gunn Hill Dairy Properties, LLC v. Los Angeles Dep't of Water & Power, 269 P.3d 980, 990 (Utah App. 2012); State v. Brooks, 643 A.2d 226, 229 (Vt. 1993); Hasson v. Commonwealth, No. 0403-05-4, 2006 WL 1387974, at *10 (Va. Ct. App. May 23, 2006); Wilt v. Buracker, 443 S.E.2d 196, ......
  • Request a trial to view additional results
42 cases
  • Com. v. Smith, No. 436 CAP.
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 27, 2010
    ...31, 35-40 (Miss. 2003); Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862, 867 (2001); Robinson, 923 S.W.2d at 556; State v. Brooks, 162 Vt. 26, 643 A.2d 226, 229 (1993); Bunting v. Jamieson, 984 P.2d 467, 471 (Wyo.1999). Indeed, if the Court is going to interpret Frye so narrowly as......
  • EST. OF GEORGE v. LEAGUE OF CITIES & TOWNS, No. 08-374.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 15, 2010
    ...v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by this Court in State v. Brooks, 162 Vt. 26, 643 A.2d 226 (1993), did not apply to workers' compensation claims being tried in superior court. He maintained that the trial court was inst......
  • Phillips v. Industrial Machine, No. S-97-1263.
    • United States
    • Supreme Court of Nebraska
    • July 16, 1999
    ...E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995); State v. Crosby, 927 P.2d 638 (Utah 1996); State v. Brooks, 162 Vt. 26, 643 A.2d 226 (1993); Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994); S......
  • Savage v. State, No. 82
    • United States
    • Court of Special Appeals of Maryland
    • August 4, 2017
    ...1995); Gunn Hill Dairy Properties, LLC v. Los Angeles Dep't of Water & Power, 269 P.3d 980, 990 (Utah App. 2012); State v. Brooks, 643 A.2d 226, 229 (Vt. 1993); Hasson v. Commonwealth, No. 0403-05-4, 2006 WL 1387974, at *10 (Va. Ct. App. May 23, 2006); Wilt v. Buracker, 443 S.E.2d 196, ......
  • Request a trial to view additional results

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