State v. McQuillen

• Decision Date: 03 October 1986
• Docket Number: No. 85-088,85-088
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. John McQUILLEN.

Page 25

518 A.2d 25

147 Vt. 386

STATE of Vermont v. John McQUILLEN.

No. 85-088.

Supreme Court of Vermont.

Oct. 3, 1986.

Philip H. White, Orleans County State's Atty., and Thomas D. Anderson, Deputy State's Atty., Newport, for plaintiff-appellee.

Gregory P. Howe, Newport, for defendant-appellant.

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

GIBSON, Justice.

Defendant was convicted after trial by jury of operating a vehicle while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). He appeals on the ground that the admission of the numerical result of a blood-alcohol-content test, without evidence relating the test result back to the time of operation, was prejudicial and contravenes the holding in State v. Dumont, 146 Vt. 252, 255, 499 A.2d 787, 789 (1985). We agree. Accordingly, we reverse and remand.

In this case, an expert testified as to the minimum number of standard drinks a person weighing either 150 or 175 pounds would have to consume in order to attain a .10% blood alcohol content (B.A.C.); that the average alcohol elimination rate is .015% per hour; and that defendant's B.A.C. was .13%. The State contends that the theoretical testimony regarding the relationship of weight and alcohol consumption, considered in conjunction with the average elimination rate, rendered the numerical test result meaningful to the jury, even though the result was not related back to the time of operation.

The argument misconstrues our holding in Dumont. The expert testimony relied on by the State fails to give meaning to the numerical test result as an indicator of this defendant's B.A.C. at the time of the offense. In fact, to the extent that this evidence purported to explain the .13% figure, it could only have added to the confusion of the jury because of the State's failure to establish a logical link between this evidence and the blood level of the defendant at the moment of the offense.

It is important that evidence of the numerical test result be treated with care in a prosecution under 23 V.S.A. § 1201(a)(2). Under the related provision of 23 V.S.A. § 1201(a)(1), it is a violation of law for a person to operate a motor vehicle on a highway while there is .10% or more by weight of alcohol in his blood. Relating the numerical test result back to the time of operation is an important safeguard against the possible misapplication of this technical evidence by the jury. When the related back numerical result is introduced into evidence, 23 V.S.A. § 1204(a) ^* provides a ready guide to the trial court for instructing the jury as to what inference it may draw or presumption it may apply to that result. See, e.g., State v. Dacey, 138 Vt. 491, 497, 418 A.2d 856, 859 (1980) (in § 1201(a)(2) prosecution, State is entitled to a jury instruction that there is a permissive inference that defendant was under the influence if jury finds that defendant had a blood alcohol content of .10% or more at time of operation).

We note that, in this case, only thirty minutes passed between apprehension of the defendant and application of the test, while in Dumont the test was administered one hour and ten minutes after apprehension. Nevertheless, we cannot say that the elapsed time here was de minimis. If the State elects to introduce numerical results into evidence, it should be prepared to establish the relevance of those results, as we clearly indicated in Dumont. In the event the State does not introduce the required relation-back evidence, we reiterate that the test result is not thereby rendered irrelevant. Under these circumstances, while the State may be foreclosed from utilizing the actual numerical result, evidence that the test "demonstrates that the defendant did, in fact, consume intoxicating liquor" may still be introduced. Dumont, supra, 146 Vt. at 255, 499 A.2d at 789.

Reversed and remanded.

PECK, Justice, dissenting.

Because of the failure of the prosecution to relate the numerical results of the blood alcohol content test back to the time of operation, I joined the Court in State v. Dumont, 146 Vt. 252, 499 A.2d 787 (1985), in reversing the conviction. Although I had some personal reservations that the time lapse between the stop and the test (one hour and ten minutes) was sufficient to be significant or prejudicial, I felt nevertheless that it might at least have been borderline. For that reason I was willing to give the defendant the benefit of the doubt. This case is different; not only does it extend the holding in Dumont on highly technical grounds, it ignores, indeed the opinion does not even note or discuss, any of the other evidence of intoxication presented by the State. These are faults I cannot accept; accordingly, I am compelled to dissent.

I simply cannot credit the postulate implicit in the majority opinion that defendant's blood alcohol content (BAC) could change in any significant degree within the brief thirty minutes that elapsed between the stop and the test. Nevertheless, even if there might have been a change, if the BAC was declining during that period, then clearly it had been higher than .13 thirty minutes earlier; on the other hand, if the BAC had risen during the period, there was clear and convincing physical evidence that defendant was legally intoxicated when he was stopped by the police. His vehicle was seen by an officer of the Newport Police Department speeding through the city at approximately 3:15 a.m. The officer followed the vehicle for...