|
DUI -
Breath Testing - Variation Between Samples
Docket
No. 78-12-02 Bncs
STATE
OF VERMONT
v.
MICHAEL MORGEN, Sr.
Bennington District Court
January 31, 2003
HOWARD,
J. This matter came before the court for a merits
bearing on a civil suspension procedure under 23 V.S.A.
§ 1205.
Findings
The
defendant was found in his vehicle by Officer Dean after
a phone call by a concerned person who had seen some
erratic operation. The vehicle was improperly parked at
an angle with passenger side wheels up on the curb. The
engine was still running and the lights were on. The
defendant was in the operator’s seat. He had difficulty
getting out of the car and there was a strong odor of
alcohol. The defendant had balance problems. He admitted
to consuming alcohol. The officer did not have the
defendant do field sobriety tests due to his apparent
level of intoxication except for the horizontal gaze
nystagmus test, which he scored several points or
“clues” on.
The
defendant was taken to the station for processing. He
answering questions, admitting he had been operating and
that he had consumed four or five beers that evening. He
indicated that he had been “slightly” under the
influence of alcohol while driving. He was then properly
and fully advised of his rights under the implied
consent law, including his right to counsel, the effects
of taking an evidentiary breath test, and of refusing to
take one. The defendant declined to speak to an
attorney. He then took an evidentiary breath test at
0017 hours on December 15, 2002. This was within two
hours of operation, which had been at 23:31 hours on the
14th.
The
officer operated the machine properly. The defendant
produced a sample of breath that the machine accepted,
and it produced a result of .185% Three minutes later
the defendant took a second breath sample at his
request. This produced a result of .206%. Again, the
officer operated the machine properly, and the machine
accepted the defendant’s breath sample.
The
Datamaster has been determined to be able to accurately
analyze a breath sample to within 10%. Each machine is
also tested three times during a year using a known
sample and an accuracy result to within 5% is required.
Each time the machine runs to test a sample, it must
first accurately determine an external sample to within
10%. The two tests taken in this matter vary by slightly
more than 10% to 11%.
The
state’s expert would be concerned about two such
separate samples differing by too large a degree, but
believed the 10 to 11% variation here was not a problem.
He did not go into detail about what degree of variation
would be of concern to him or try to explain how this
difference might have occurred except that two separate
samples could simply differ. He testified that the
regulations of the state do not require such separate
tests be within 10% of each other and the court agrees
and finds this is correct.
The
defense expert claims that the state regulations
indicate such a variation as exists here means the test
results are per se unreliable. The court does not find
this interpretation of the regulations correct.
Regardless of the interpretation of the regulations, the
expert does claim the variation is “unusually wide” but
he does not offer further evidence on this issue aside
from the claim it violates the regulations and thus is
not reliable or accurate.
Analysis and Decision
The court
finds that the officer had reasonable grounds to stop
and process the defendant. The defendant was properly
advised of his rights under 23 V.S.A. § 1202(d) and
understood them. The officer operated the machine
properly and obtained a result of over .08% within two
hours of operation. The general testing methods were
valid and reliable.
The issue
then is whether this result was accurate and accurately
evaluated. The defendant argues that it was not,
pointing out that the second breath test taken within
three minutes varied from the first by slightly more
than 10%. He argues that under the regulations for
breath testing, this demonstrates the machine could not
accurately analyze a sample to within 10%. Since the
samples were from the same person within minutes of each
other and the machine accepted both of them, the
defendant argues the two results had to be within 10%
under the regulations.
The state
argues the defendant’s interpretation of the regulations
is incorrect. It argues that the regulation does not
apply to separate samples taken from a person, but
rather simply to whether the machine is demonstrated to
be able analyze each sample to that degree of accuracy.
Its expert evidence supports his claim. The defendant’s
expert evidence supports his claim that such a
difference between two samples taken under such
circumstances violates the regulation.
The
regulation does not specify that the 10% rule applies to
two samples from one defendant taken during a
processing. While it does not clearly have language that
the state’s interpretation is correct, the court finds a
reasonable reading of the regulation requires this
result. The portion in question reads:
Analytical instrumentation shall be capable of
determining the blood or breath alcohol
concentration of the person sampled with an accuracy
of plus or minus 10%.
The
sample difference involved here does not show this
regulation has been violated, but it does require a
determination of whether the difference between samples
in this particular case prevents the state from showing
it has an accurate and reliable result in this specific
matter. This is what was involved in State v. Flynn, No.
98-230 (April 1999) (three judge mem.), an opinion to
which both parties have referred. The trial judge found
there that two results from the same defendant of .169%
and .143% indicated an unreliability that required a
finding for the defendant in the civil suspension
procedure. The panel affirmed without having to reach
the issue of whether the disparity violated the
regulation. It noted the trial judge always has to make
a factual determination of reliability and the widely
disparate results justified the finding there was no
reliable result. See State v. Rolfe, 166 Vt. 1, 13
(1996) (defendant may argue court gives test result no
weight even where instrument is found to meet regulatory
performance standards).
The test
results herein are not as disparate. They were a .185%
and .206%. There was testimony the defendant may have
blown slightly differently during the two samplings even
though the machine accepted both samples. There is no
expert evidence, though as to how that might effect the
results or cause the difference of 10 to 11%. The state
presented evidence that the difference in the two
samples was not critical in the opinion of its expert.
The witness would be concerned about a greater variation
even if this was not a violation of the regulation set
out above. This is because even though they are two
totally separate samples, they should not vary too much
when taken minutes apart. This witness did not testify
about the officer’s evidence of the slight difference in
how the defendant gave his samples. He did not indicate
any particular degree of difference that he would
consider per se unreliable or where the line is at which
he would start having concerns.
The
defense presented evidence that such a result was not
reliable or trustworthy. Even though its witness relied
on the regulation in stating the two results were per se
invalid, he still asserted that the 10% to 11% variation
in the samples was unusually disparate regardless of the
regulations. This witness did not opine either on the
limited testimony about how the defendant gave the two
samples.*
The
burden is on the state in this proceeding. It is a
preponderance of the evidence burden. The court does not
find it has met that burden as to the element of 23
V.S.A. § 1205(h)(4) due to the variations in the two
separate results and the lack of evidence as to how that
might have occurred or why this degree of variation is
not a problem but a larger degree might be. This finding
is not based on an interpretation of the regulations
that such tests must be within 10% of each other. The
court does not find that is per se required under the
regulations for a valid test result. It may be in some
cases the state could provide evidence that would
explain a 10% or 11% variation. The court finds it has
not done so under its burden of proof.
Order
Judgment
is entered for the defendant in this matter.
____________
Notes to Text:
*The defendant’s expert testified by affidavit prepared
in advance of the testimony.
Brian
Marthage, Deputy Bennington State’s Attorney,
Bennington, for State Bradley Myerson, Manchester, for
defendant
PDF Version
|
