State v. Tierney, 65-79

• Decision Date: 05 February 1980
• Docket Number: No. 65-79,65-79
• Citation: 138 Vt. 163,412 A.2d 298
• Parties: STATE of Vermont v. Thomas A. TIERNEY.
• Court: Vermont Supreme Court

Page 298

412 A.2d 298

138 Vt. 163

STATE of Vermont v. Thomas A. TIERNEY.

No. 65-79.

Supreme Court of Vermont.

Feb. 5, 1980.

M. Jerome Diamond, Atty. Gen., Richard A. Unger, Asst. Atty. Gen., Montpelier, and P. Scott McGee, Lamoille County State's Atty., Hyde Park, for plaintiff.

James L. Morse, Defender Gen., William A. Nelson, App. Defender, and Jessie Marshall, Law Clerk (on the brief), Montpelier, for defendant.

Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and SPRINGER, District Judge, Specially Assigned.

DALEY, Justice.

After a trial by jury in district court, the defendant was convicted of being under actual physical control of a motor vehicle while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). Defendant's sole claim of error on appeal is the denial of his motion to suppress the results of the breath test.

Section 1202(a) of Title 23 states in relevant part:

A sample of breath shall be taken only by a law enforcement officer who has been certified by the department of public safety to operate a field sample gathering device for the gas chromatograph intoximeter whenever a state police officer or a law enforcement officer who has been certified by the Vermont criminal justice training council pursuant to Title 20, section 2358, had reasonable grounds to believe that the person was operating, attempting to operate or was in actual physical control of any vehicle while under the influence of intoxicating liquor.

(Emphasis added). Defendant reads this statute to mean that, as a precondition to administering a test for alcohol in the blood, the officer who forms a reasonable belief that a person is driving under the influence must be certified by the Vermont Criminal Justice Training Council (the Council), regardless of whether he is a state police officer, or a local law enforcement officer. On the basis of this interpretation, defendant moved to suppress the test results because the state police officer who requested the test was not certified by the Council. The trial court denied this motion on the ground that the phrase "who has been certified by the . . . council" modifies "law enforcement officer," but does not modify "state police officer." 23 V.S.A. § 1202(a). We agree.

In construing a statute, this Court considers it as a whole, and, if possible, gives effect to every word, clause and sentence. State v. Mahoney, 122 Vt. 456, 459, 176 A.2d 747, 749 (1961). Section 1202(a), by the plain language of the first clause, only authorizes the taking of a breath sample by "a law enforcement officer who has been certified by the department of public safety to operate a field sample gathering device (crimper)." If, in its next clause, the statute was intended to limit those who could form the requisite reasonable belief solely to law enforcement officers certified by the Council, the legislature could have expressed this intent by using only the language "law enforcement officer," as it did in the first clause. The legislature, however, chose to specify two categories of officers who could form the requisite reasonable belief: "a state police officer or a law enforcement officer who has been certified by the . . . council." 23 V.S.A. § 1202(a). Defendant's proffered construction would render this specific enumeration of state police officers superfluous. This we cannot accept.

It is also the policy of this Court to avoid a construction of a statute that leads to absurd or irrational results. Audette v. Greer, 134 Vt. 300, 302, 360 A.2d 66, 68 (1976). In this case, it is uncontested that the state police officer in question was certified by the department of public safety to operate the crimper. Therefore, under defendant's analysis,...