State v. Burgess

• Decision Date: 02 July 2010
• Docket Number: Nos. 09-103, 09-104.,s. 09-103, 09-104.
• Citation: 2010 VT 64,5 A.3d 911
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Kent W. BURGESS.

5 A.3d 911

2010 VT 64

STATE of Vermont

v.Kent W. BURGESS.

Nos. 09-103, 09-104.

Supreme Court of Vermont.

July 2, 2010.

Stuart G. Schurr, Department of State's Attorneys, Montpelier, for Plaintiff-Appellee/Cross-Appellant.

Paul S. Volk of Blodgett, Watts, Volk & Sawyer, P.C., Burlington, for Defendant-Appellant/Cross-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

REIBER, C.J.

¶ 1. This appeal and cross-appeal stem from consolidated civil suspension and criminal proceedings against defendant for driving under the influence (DUI). Defendant appeals the trial court's final ruling against him in the civil suspension case, and the State appeals the court's interlocutory ruling suppressing the Datamaster breathalyzer test results in the criminal case. Defendant argues that the civil suspension hearing should have been dismissed because: (1) the exit order was not justified by a reasonable suspicion of DUI; and (2) the trial court improperly applied a statutory presumption in reaching its ruling in the civil suspension hearing. The State contests these issues and, as cross-appellant, argues that the trial court erred in excluding the Datamaster breathalyzer test results from the criminal case. We affirm the trial court's ruling on the civil suspension hearing and reverse the trial court's grant of defendant's motion to suppress the Datamaster breathalyzer test results in the criminal case.

¶ 2. At 1:51 a.m. on November 24, 2007, defendant was driving east on Vermont Route 15 and passed a state trooper traveling in the opposite direction. The trooper clocked defendant going 65 in a 50-mile-per-hour zone. The trooper briefly flashed his blue lights, turned around, caught up with defendant, and followed him for approximately half of a mile before turning his blue lights back on and pulling over defendant. The trooper did not observe any erratic driving while he was following defendant. The trooper was, however, surprised that: (1) defendant did not stop when the trooper first flashed his lights; and (2) when defendant did pull over, he did not pull entirely off the road, but instead remained partially within the lane of the road. Defendant argues that he did not know the trooper was pulling him over at first and that his failure to pull entirely off the road is explained by the fact that snowfall had covered the lines of the road and that the shoulder of that section of road was particularly narrow.

¶ 3. After approaching defendant's vehicle, the trooper observed a "moderate odor of alcohol" coming from "within the truck." He could not say whether the alcohol came from defendant, although defendant was the only person in the truck at the time. The trooper noticed that defendant's eyes were watery, but they were not bloodshot. The trooper also noticed that there were two unopened bottles of beer in the vehicle, one in the console and one visibly protruding from the pocket of the jacket that defendant was wearing.¹ In response to questioning from the trooper, defendant stated that he was coming from a party and admitted that he had consumed one drink "20 minutes ago."

¶ 4. Suspecting that defendant was intoxicated, the trooper ordered defendant to pull into a nearby driveway and exit his vehicle. The trooper then conducted field sobriety tests. Defendant failed several of those tests. The trooper asked defendant to submit to a preliminary breath test (PBT), and defendant stated that he did not know whether he should take it. When defendant finally agreed to submit to a PBT, the trooper refused to allow the test and arrested defendant because, according to the trooper, he already "had enough clues to ask for an evidentiary test at that point." After being arrested, defendant was brought to a police station and, roughly two hours and eight minutes since last operating his vehicle, he was given a Datamaster breathalyzer test, indicating a blood alcohol content (BAC) of 0.126 at 3:59 a.m. and 0.117 at 4:02 a.m. The State has stipulated that these test results were "generated outside two hours from the time of operation."

¶ 5. In the proceedings before the trial court, defendant filed motions to suppress and dismiss. The court held a hearing, which involved two main issues. One part of the hearing addressed the appropriateness of the exit order, which the court concluded was justified. The other part of the hearing was effectively a Daubert hearing on the scientific validity of retrograde extrapolation-the process for determining defendant's BAC at the time of operation based on a test taken more than two hours later. The court concluded that "in this particular case, there is insufficient information in evidence regarding the Defendant's conduct during the period of time in question prior to the stop for an expert to make a valid retrograde extrapolation to the time of operation." The courtheld that "in the criminal context" it was not convinced of the accuracy and reliability of retrograde extrapolations, and the court therefore concluded that "the Datamaster test result is not admissible and is suppressed." See generally Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (delineating test for admissibility of expert testimony).

¶ 6. In the civil suspension hearing, on the other hand, the court relied on retrograde analysis of the Datamaster test results.² The court held that, although defendant's test results were obtained outside of the two-hour statutory window, they could be related back to the two-hour window to trigger a statutory presumption that defendant's BAC was 0.08 or higher at the time of operation. Finding this presumption unrebutted, the court ruled in favor of the State in the civil suspension hearing.

I.

¶ 7. Defendant first argues that the trooper did not have a reasonable suspicion of DUI at the time he ordered defendant to exit his vehicle. ³ The trial court held that the trooper's exit order was justified. We agree with the trial court that the trooper's exit order did not violate defendant's constitutional rights.

¶ 8. Although the United States Supreme Court has interpreted the Fourth Amendment to the United States Constitution as allowing exit orders in automobile stops as a matter of course, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), we have held that Article 11 of the Vermont Constitution requires particular justification for an exit order, State v. Sprague, 2003 VT 20, ¶¶ 13-20, 175 Vt. 123, 824 A.2d 539 (rejecting the Mimms analysis). In Sprague, we noted that "the test to determine whether an exit order was justified under Article 11 is whether the objective facts and circumstances would support a reasonable suspicion that the safety of the officer, or of others, was at risk or that a crime has been committed." Id. ¶ 16. Thus, here the question is whether the objective facts and circumstances supported a reasonable, articulable suspicion of DUI. ⁴

¶ 9. Here, the trooper based his exit order on defendant's "bad judgment with speeding in a snowstorm, [being] slow to respond and pull over ..., odor of alcohol, [and] watery eyes," combined with defendant's admissions that "he had been drinking" and "had come from a party." Tworecent cases from this Court make clear that the officer's exit order was justified here: regardless of whether speeding in a snowstorm or being slow to pull over can properly be considered factors in the analysis, or whether the trooper could also properly consider the unopened bottles of beer in places such as defendant's jacket pocket and the center console, the factors of an odor of alcohol, defendant's admission to drinking, and the appearance of watery eyes are sufficient indicia of DUI to validate an exit order. See State v. Mara, 2009 VT 96A, ¶ 12, 186 Vt. 389, 987 A.2d 939 (holding that "the odor of alcohol, admission to drinking, and watery and bloodshot eyes" were enough to create reasonable suspicion of DUI to allow the trooper to administer a PBT); Santimore, 2009 VT 104, ¶ 11, 987 A.2d 332 (reaching same conclusion based on these same factors). Although defendant argues that his admission to drinking was only an admission to having had one beer, we noted in Mara that "a driver's mere assertion that he has not drunk to excess need not be accepted at face value by an officer who observes other indicia of impairment." 2009 VT 96A, ¶ 9, 987 A.2d 939. Indeed, in Mara, the defendant admitted only to having had two beers, and the defendant in Santimore admitted only to having had one beer, and we held that the exit orders were justified in both of those cases.

II.

¶ 10. We next address the State's cross-appeal to determine whether the trial court abused its discretion in granting defendant's motion to suppress the results of the Datamaster breathalyzer test. Here, because the trial court improperly engaged in weighing the evidence, rather than limiting its analysis to a determination of the admissibility of the evidence, and because retrograde extrapolation is legitimate science, we hold that the trial court abused its discretion by suppressing this evidence. See 985 Assocs., Ltd. v. Daewoo Elecs. Am., Inc., 2008 VT 14, ¶ 10, 183 Vt. 208, 945 A.2d 381 ("Given the general approach of the rules of evidence of relaxing the traditional barriers to 'opinion' testimony, the trial court's inquiry into expert testimony should primarily focus on excluding 'junk science'-because of its potential to confuse or mislead the trier of fact-rather than serving as a preliminary inquiry into the merits of the case." (quotations and citations omitted)).

¶ 11. We have previously held that reviewing for abuse of discretion does not prevent us from "engag[ing] in a substantial and thorough analysis of the trial court's decision and order to ensure that the trial judge's decision was in accordance with Daubert and our applicable precedents." USGen New Eng., Inc. v. Town of Rockingham, 2004 VT...