State v. Lamelle, 43-74
| Citation | 340 A.2d 49,133 Vt. 378 |
| Decision Date | 03 June 1975 |
| Docket Number | No. 43-74,43-74 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Howard LAMELLE. |
Robert W. Gagnon, Washington County State's Atty., Montpelier, for plaintiff.
Brock & Sidel, Montpelier, for defendant.
Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.
This is an appeal by defendant from his conviction after jury trial on the charge that on July 20, 1973, he operated an automobile on the public highway known as the Cobble Hill Road in East Barre 'with a blood alcohol level of .15.' Two lines below the charge the words 'T23 Sec 1201' appear.
The issue raised by appellant is whether a judgment of acquittal must be entered on the information in this case.
The pertinent part of 23 V.S.A. § 1201(a)(1), the statute on which the information is based, prohibits the operation, or attempt to operate, any vehicle on a highway while 'there is .10 per cent or more by weight of alcohol in his blood, as shown by chemical analysis of his breath or blood.'
The defendant complains in his brief that the 'information does not appear to be a sufficient factual allegation for a truly factual information.' Specifically, he says the automobile was not identified, the time of day is not stated and designation of the highway as Cobble Hill Road was improper.
The claimed deficiencies extend only to form and the detail in which the offense was charged. Such deficiencies are waived unless challenged by appropriate motion in the preliminary stages of the proceedings. State v. Provencher, 128 Vt. 586, 589, 270 A.2d 147 (1970). The record does not show that the defendant took any affirmative action below to challenge the claimed deficiencies in the information.
At the close of the State's case, defendant moved for a directed verdict of acquittal on the ground that the State had failed to prove that defendant's blood alcohol level was .15% as charged. The court denied defendant's motion as well as a motion by the State to amend the information to read 'with greater than .10% blood alcohol content.'
The main thrust of defendant's appeal is that there was a variance between the information and the proof adduced at trial as to the blood alcohol level.
The chemical analysis of defendant's breath sample is shown by the evidence to be .149% while the information states it to be a blood alcohol level of .15%. The State's expert testified that a test is reported to be two decimal places as the statute only states two decimal places. He also said that it is common procedure if a test is seven or more over the two decimal places, it is rounded off, otherwise it is rounded down. Here, the test of .149% was rounded off at .15%, the differential, or variance, being a plus of .001% The information was inartistically drawn but this is not to say that the conviction based on it will not withstand defendant's challenge. The information was sufficient to inform the accused of the place, the nature and the cause of the accusation against him. The facts alleged are entirely adequate to...
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State v. Couture
...does not object, before verdict, to the form of a charge of which he was fairly informed and not prejudiced. State v. Lamelle, 133 Vt. 378, 379, 340 A.2d 49, 50 (1975) (distinguishing substantial defects from formal ones); State v. Provencher, 128 Vt. 586, 589, 270 A.2d 147, 149 (1970) In t......
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State v. Joy, 85-026
...failed to timely raise this defect in the instant case, it is waived and not available for our consideration. See State v. Lamelle, 133 Vt. 378, 379, 340 A.2d 49, 50 (1975). Defendant also alleges error because the amended complaint failed to incorporate his name. Again, this is a technical......
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State v. Breznick, 188-75
...some value were rendered valueless, and that is sufficient, especially where no prejudice has been shown by defendant. State v. Lamelle, 133 Vt. 378, 340 A.2d 49 (1975); State v. Williams, 94 Vt. 423, 438, 111 A. 701 Judgment affirmed. ...
- State v. Zeisner, s. 32-74