State v. Greenia, 84-610

• Decision Date: 09 January 1987
• Docket Number: No. 84-610,84-610
• Citation: 522 A.2d 242,147 Vt. 596
• Parties: STATE of Vermont v. Bernard J. GREENIA, Jr.
• Court: Vermont Supreme Court

Page 242

522 A.2d 242

147 Vt. 596

STATE of Vermont v. Bernard J. GREENIA, Jr.

No. 84-610.

Supreme Court of Vermont.

Jan. 9, 1987.

Helen V. Torino, Franklin Co. State's Atty., Howard E. VanBenthuysen, Deputy State's Atty., and Maxine Grad, Law Clerk (on Brief), St. Albans, for plaintiff-appellee.

James W. Murdoch and Richard C. Bothfeld of Wool & Murdoch, Burlington, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

HILL, Justice.

Defendant appeals from a conviction, after jury trial, of driving under the influence of intoxicating liquor, 23 V.S.A. § 1201(a)(2). We affirm.

Defendant moved below to suppress the results of a blood test administered after arrest. He argued that it was a violation of 23 V.S.A. § 1202(a) for the officer to fail to administer a breath test prior to a blood test, since breath testing equipment was available, and none of the other exceptions to 23 V.S.A. § 1202(a) were applicable. The trial court denied the motion to suppress, reasoning that when both a breath test and blood test are made available to a defendant, it is not a violation of § 1202(a) to administer only a blood test where a defendant requests a blood test and the officer acquiesces in that choice.

This Court may sustain the ruling of a trial court upon any legal ground even though the trial court may have based its ruling upon another ground. Circus Studios, Ltd. v. Tufo, 145 Vt. 219, 222, 485 A.2d 1261, 1263 (1984); Potter v. Town of Clarendon, 118 Vt. 278, 281, 108 A.2d 394, 396 (1954). Without passing upon the correctness of the trial court's reasoning, we think the decision must be sustained on the basis of the express language of § 1202(a).

Section 1202(a) states, in pertinent part:

Any person who operates, attempts to operate or is in actual physical control of any vehicle on a highway in this state is deemed to have given his consent to the taking of more than one sample of his breath for the purpose of determining the alcoholic content of his blood. If breath testing equipment is not reasonably available or if the person is unable to give a sufficient sample of his breath for testing or if a state police officer or law enforcement officer who has been certified by the Vermont criminal justice training council pursuant to Title 20, section 2358, has reasonable grounds to believe that the person is under the influence of a drug other than or in addition to alcohol, he is deemed to have given his consent to the taking of a sample of his blood for those purposes.

23 V.S.A. § 1202(a) (emphasis added). The arresting officer testified at trial that the defendant told him, at some point after the administration of a preliminary breath alcohol screening test, ^* that he had ingested two different over-the-counter medicines, Nyquil and Optimine, several times that day. The officer also testified that defendant expressed the belief, prior to the administration of the blood test, that the...