State v. Skilling, 90-416

Decision Date12 July 1991
Docket NumberNo. 90-416,90-416
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Patricia SKILLING.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ENTRY ORDER

Defendant, whose operator's license was suspended as a result of a civil suspension hearing under 23 V.S.A. § 1205, appealed, arguing that the case should have been dismissed for failure to meet statutory time limits and that certain findings are clearly erroneous. It is undisputed that the law enforcement officer involved did not send a notice of suspension to defendant immediately on receiving the test results and did not mail a copy of his affidavit to defendant within seven days of the notice to suspend. See 23 V.S.A. § 1205(b). Nor was the court hearing held within 30 days of the date of the request for the hearing as required by 23 V.S.A. § 1205(e). We have held that the requirement that the notice be mailed immediately is directory so that "compliance is not essential to a proceeding's validity." State v. Camolli, 156 Vt. 208, ---, 591 A.2d 53, 57 (1991). We conclude that the other time limits involved here are also directory because the statute does not specify any consequence for failure to comply. See in rE mullestein, 148 vt. 170, 174, 531 A.2d 890, 892 (1987). since defendant was not prejudiced by the failure to meet the statutory time limits, the motion to dismiss was properly denied.

Defendant next argues that the evidence could not support a finding, as required by § 1205(f)(2), that the officer informed her of the consequences of "taking and refusing the test substantially as set out in subsection 1202(d)" because the officer used a form that did not fully inform defendant of her rights under § 1202(d)(4). We have reviewed the consent form and find the differences between the language of the statute and the advice given to be technical and inconsequential. We conclude that the officer advised the defendant of her rights "substantially" as set forth in § 1202(d).

Defendant's last claim is that the court erred in concluding that "the testing methods used were valid and reliable and ... the test results were accurate and accurately evaluated," as required by § 1205(f)(4), because there was no evidence that the officer took the sample pursuant to Vermont Department of Health rules. We do not believe that the statute requires evidence of that specificity before the court can make the findings required by § 1205(g). Of course, defenda...

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6 cases
  • State v. Love, 16–192
    • United States
    • United States State Supreme Court of Vermont
    • August 18, 2017
    ...for failure to comply with the time limit." State v. Singer, 170 Vt. 346, 348, 749 A.2d 614, 616 (2000) ; see also State v. Skilling, 157 Vt. 647, 647, 595 A.2d 1346, 1347 (1991) (mem.) (holding statute is directory when it does not contain a consequence); In re Mullestein, 148 Vt. 170, 174......
  • State v. Singer, 98-578.
    • United States
    • United States State Supreme Court of Vermont
    • February 4, 2000
    ...notice was directory, not mandatory, and the district court erred in dismissing the case. The State also relies on State v. Skilling, 157 Vt. 647, 595 A.2d 1346 (1991) (mem.). There, the defendant's driver's license was suspended pursuant to 23 V.S.A. § 1205. On appeal, he argued, among oth......
  • State v. Love, 2016-192
    • United States
    • United States State Supreme Court of Vermont
    • August 18, 2017
    ...for failure to comply with the time limit." State v. Singer, 170 Vt. 346, 348, 749 A.2d 614, 616 (2000); see also State v. Skilling, 157 Vt. 647, 647, 595 A.2d 1346, 1347 (1991) (holding statute is directory when it does not contain a consequence); In re Mullestein, 148 Vt. 170, 174, 531 A.......
  • State v. Love, 2016-192
    • United States
    • United States State Supreme Court of Vermont
    • August 18, 2017
    ...for failure to comply with the time limit." State v. Singer, 170 Vt. 346, 348, 749 A.2d 614, 616 (2000); see also State v. Skilling, 157 Vt. 647, 647, 595 A.2d 1346, 1347 (1991) (holding statute is directory when it does not contain a consequence); In re Mullestein, 148 Vt. 170, 174, 531 A.......
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