State v. Young, 82-173

• Decision Date: 06 September 1983
• Docket Number: No. 82-173,82-173
• Citation: 465 A.2d 1375,143 Vt. 413
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Mary YOUNG.

Page 1375

465 A.2d 1375

143 Vt. 413

STATE of Vermont v. Mary YOUNG.

No. 82-173.

Supreme Court of Vermont.

Sept. 6, 1983.

Helen V. Torino, Franklin County and Christopher A. Micciche, Deputy State's Attys. (on brief), St. Albans, for plaintiff-appellee.

Nicholas L. Hadden of John Kissane Associates, St. Albans, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

PECK, Justice.

Defendant was charged with operating a motor vehicle on a public highway while under the influence of intoxicating liquor in violation of 23 V.S.A. § 1201(a)(2). She was convicted after a jury trial, and now appeals to this Court. We reverse and remand for a new trial.

On appeal defendant contends that the trial court erred in its charge to the jury. Specifically she claims that the court should have used the language of 23 V.S.A. § 1204(a)(1) relating to a presumption that a person is not under the influence if her blood alcohol level is 0.05 or less, rather than the permissive inference of not being under the influence language that the court actually used. We agree.

Briefly stated, the facts are as follows. On October 30, 1981, defendant was stopped for speeding in Fairfax, Vermont. The officer who stopped her noticed empty beer bottles on the floor of the car, smelled an odor of alcohol in the car and on her breath, observed that defendant's eyes were watery and bloodshot, that she used abusive language and was combative. The trooper took defendant to the police barracks and gave her a breath alcohol test. The test was given one hour and fourteen minutes after the initial stop.

At trial the chemist testified that the test showed defendant had a 0.09 percent blood alcohol content at the time of testing. Relating the test back to the time of operation, the chemist concluded that defendant had a blood alcohol content of 0.11 percent when stopped by the officer. On cross-examination the chemist testified that, assuming defendant had consumed two beers immediately prior to being stopped by the police as she claimed she had, the related-back test could indicate a blood alcohol content of as little as 0.04 percent at the time of operation.

In its charge to the jury the court said [I]f you find at the time the defendant operated the motor vehicle she had a blood alcohol content of .05 percent or less, you are permitted to infer that she was not under the influence of intoxicating liquor. If you find that at the time the defendant operated a motor vehicle she had a blood alcohol content of more than .05 percent, but less than .10 percent, such fact shall not permit you to infer that she was or was not under the influence of intoxicating liquor. But such fact may be considered with other competent evidence in determining whether she was under the influence of intoxicating liquor. And if you find at the time the defendant was operating a motor vehicle, she had a blood alcohol content of more than .10 percent, you are permitted to infer that she was under the influence of intoxicating liquor. (emphasis added).

The language used by the court derives from 23 V.S.A. § 1204(a), which provides in relevant part:

[T]he amount of alcohol in the person's blood or breath at the time alleged as shown by analysis of the person's blood or breath shall give rise to the following presumption:

(1) If there was at that time 0.05 percent or less by weight of alcohol in the person's blood or breath, it shall be presumed that the person...