State v. Austin White

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.

2023 VT 38

No. 22-AP-216

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Caledonia Unit,
Civil Division

Austin White April Term, 2023

Justin P. Jiron, J.

Claire E. Burns, Caledonia County Deputy State’s Attorney, St. Johnsbury, for
Plaintiff-Appellee.

David C. Sleigh of Sleigh Law, PC, St. Johnsbury, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

¶ 1. COHEN, J. Defendant appeals from the civil division’s final judgment

suspending his driver’s license. He argues that the trial court abused its discretion in admitting the

results of an evidentiary blood-alcohol test because the State did not offer sufficient evidence to

demonstrate that defendant’s blood sample was collected and analyzed in compliance with

Department of Public Safety (DPS) rules. We conclude that there was an insufficient foundation

to allow admission of the test result and therefore reverse and remand for entry of judgment for

defendant.

¶ 2. In October 2020, defendant drove his truck off a road in St. Johnsbury, Vermont.

The state trooper who arrived at the scene developed reason to believe defendant was impaired by
alcohol. Defendant was treated at Northern Vermont Regional Hospital, and there consented to

the withdrawal of a blood sample for alcohol testing.1

¶ 3. The Vermont Forensics Laboratory (VFL) analyzed the blood specimen for alcohol

content and determined the blood-alcohol content (BAC) to be 0.106 percent at the time of

collection. After receiving the VFL report, the trooper served defendant with notice that the

Department of Motor Vehicles would suspend his driver’s license unless he requested a hearing to

contest the allegation by a certain date. Defendant timely requested a hearing and filed a notice of

contested issues, including, as relevant here, whether the test was taken and analyzed in

compliance with DPS rules.

¶ 4. A final merits hearing was conducted in August 2022. The State’s evidence was

limited to two exhibits. Exhibit 1 was a template affidavit completed by the responding trooper,

including his observations and narration of the incident. Exhibit 1 also included an unsworn,

signed report from the VFL summarizing the results of its analysis of defendant’s blood sample,

addressed to the state police barracks. Exhibit 2 was an affidavit of a VFL chemist, providing her

assumptions, inputs, and relation-back analysis of defendant’s blood sample.

¶ 5. Defendant raised various objections to admission of the exhibits and to the blood-

test result based on an alleged lack of foundation in these exhibits. As relevant here, defendant’s

counsel argued essentially that the trooper’s only reference to the DPS rules was his affirmation

that “[t]he sample was obtained pursuant to the Vermont Department of Public Safety rules,” and

that this was inadequate to demonstrate that the blood test complied with all the applicable DPS

1
We note that “Vermont law regarding DUI explicitly favors breath testing over blood
testing.” State v. Giguere, 2017 VT 40, ¶ 8, 204 Vt. 483, 169 A.3d 778. However, blood testing
is appropriate “[i]f breath testing equipment is not reasonably available or if the officer has reason
to believe that the person is unable to give a sufficient sample of breath for testing or if the law
enforcement officer has reasonable grounds to believe that the person is under the influence of a
drug other than alcohol.” 23 V.S.A. § 1202(a)(2). Here the trial court found that blood testing
was lawful under the circumstances, and defendant does not challenge that determination on
appeal, so we do not address it.
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rules and therefore could not provide a foundation for admission of the blood-test result. Counsel

explained:

[W]e object to the conclusory statement at the top of page 4 of the
same affidavit. The statement purports that the blood sample was
obtained pursuant to the Vermont Department of Public Safety
Rules, but there’s no evidence to support that assertion made by the
trooper. The affidavit doesn’t explain or express which particular
rules were complied with or demonstrate how those rules were
complied with, or even demonstrate how the trooper knew that these
rules were complied with.

Additionally, there’s no affidavit or statement from the nurse who
obtained this blood sample, describing how that nurse obtained the
sample and how that collection process was in compliance with the
rules of the Vermont Department of Public Safety. Therefore, the
State could not prove that the sample was, in fact, collected in
compliance with the rules beyond the officer’s statement that they
were. That is very much unsupported by his affidavit.

¶ 6. The court overruled the objection, reasoning that the plain terms of 23 V.S.A.

§ 1203(d) do not require anything more than a “conclusory” statement of compliance with DPS

rules. Similarly, defendant’s counsel objected that the VFL report’s only reference to DPS—that

“[a]nalysis of the sample for ethanol was performed by gas chromatography, a method approved

by the Commissioner of Public Safety for this purpose”—was conclusory and insufficient to

demonstrate compliance with the rules. The court again overruled the objection:

Well, it’s sort of like the other rule we talked about, whether under
the statute indicating that if there’s evidence that the—a test was
taken or analyzed—in this case, analyzed in compliance with rules
adopted by Department of Public Safety, whether that statement at
the bottom of—or partway down under the analysis summary saying
that it was performed by gas chromatography, a method approved
by the commissioner of public safety complies with the statute. I
mean, it does reference the commissioner of public safety and the
method approved by the commissioner of public safety. So it
doesn’t actually specifically talk about the rules, but I do find that it
does present some evidence that it was—that the method was used,
according to the commissioner of public safety’s rules.

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The court admitted the blood-alcohol test results, found that the State had proved the requirements

under 23 V.S.A. § 1205 for a civil license suspension by a preponderance of evidence, and

ultimately entered judgment in the State’s favor.

¶ 7. On appeal, defendant argues that the court erred in admitting the test results because

the State failed to provide the requisite foundation for admissibility—that the blood-sample

analysis was performed in compliance with all applicable DPS rules. In general, we review

evidentiary rulings for abuse of discretion. State v. Eldert, 2015 VT 87, ¶ 14, 199 Vt. 520, 125

A.3d 139. We note, however, that in civil-suspension proceedings the Rules of Evidence are not

applied strictly. V.R.C.P. 80.5(f)(3) (“Evidence is admissible if it is of a type commonly relied

upon by reasonably prudent persons in the conduct of their affairs, and the Vermont Rules of

Evidence are inapplicable except for the rules respecting privilege.”).

¶ 8. To obtain a judgment against defendant, the State was required to prove the

elements set forth in 23 V.S.A. § 1205(h)(1)(A)-(E) by a preponderance of evidence. See 23

V.S.A. § 1205(j) (providing that State has burden of proof by preponderance of evidence).

Defendant contested, among other things, that the State established the following element: “the

test was taken and the test results indicated that [his] alcohol concentration was above a legal limit

[at the time he was operating the vehicle], whether the testing methods used were valid and reliable,

and whether the test results were accurate and accurately evaluated.” Id. § 1205(h)(1)(D). The

State needed to have defendant’s test results admitted to prove this element.

¶ 9. Section 1203(d) of Title 23 provides that “a breath, saliva, or blood test . . . shall be

analyzed in compliance with rules adopted by the Department of Public Safety” and that “[t]he

analysis performed by the State shall be considered valid when performed according to a method

or methods selected by the Department of Public Safety.” In State v. Rolfe, we interpreted this

provision as establishing an admissibility standard for test results, recognizing that “valid” means

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“admissible” in this context.2 166 Vt. 1, 11-12, 686 A.2d 949, 956-57 (1996); see also State v.

Burnett, 2013 VT 113, ¶ 17, 195 Vt. 277, 88 A.3d 1191 (“The threshold for admissibility is set by

§ 1203(d).”). Thus, to have test results admitted into evidence, the State must lay a foundation to

demonstrate that the sample was analyzed consistent with DPS rules. Rolfe, 166 Vt. at 13, 686

A.2d at 957 (“[L]aying the proper foundation makes the test result admissible.”). Under Rolfe,

this foundational evidence must show not only that the test was performed using an approved

analytic method, such as gas chromatography, but also that the testing adhered to the performance

standards established in the agency rules for that method. Id. at 12, 686 A.2d at 957 (“[W]e

interpret the words ‘method or methods’ [in § 1203(d)] to cover not only the analytic method—

for example, infrared spectrophotometry—but also the performance standards that the analysis

must meet.”).

¶ 10. Although Rolfe and its progeny focused primarily on breath testing, defendant

argues that that the same legal framework applies to blood testing. Given the plain statutory

language, we agree that § 1203(d) applies equally to blood tests and breath tests. See 23 V.S.A.

§ 1203(d) (“In the case of a breath, saliva, or blood test, the test shall be analyzed in compliance

with rules adopted by the Department of Public Safety . . . . The analysis performed by the State

shall be considered valid when performed according to a method or methods selected by the

Department of Public Safety.” (emphasis added)); see also Rolfe, 166 Vt. at 11, 686 A.2d at 956

(interpreting virtually identical statutory language “as determining the validity of any analysis of

a blood or breath sample by any means”). Thus, to provide a proper foundation for admission of

blood-test results, the State must show that the sample was analyzed by gas chromatography

according to the performance standards established in the DPS rules. See Breath and Blood

2
When we decided Rolfe, the testing rules were administered by the Department of Health.
Following a legislative amendment, they are now under the purview of the Department of Public
Safety. See 2011, No. 56, § 14. The relevant statutory language has not meaningfully changed.
5
Alcohol Analysis § D, Code of Vt. Rules 28 060 002, http://www.lexisnexis.com/hottopics

/codeofvtrules.

¶ 11. Here, the State submitted no foundational evidence to demonstrate compliance with

any of these performance standards. The chemist’s affidavit describes her training for gas

chromatography, but the affidavit contains no reference to gas-chromatography instrumentation,

its capabilities, or whether the method or methods were actually complied with during the analysis.

The trooper’s affidavit does not discuss the analytical method or instruments in any way except to

note that the VFL report is attached to his affidavit. The VFL report states that the blood sample

was analyzed by gas chromatography and provides the results of the blood-alcohol analysis, but it

says nothing about whether the analysis was “performed according to a method or methods

approved by the Department of Public Safety.” 23 V.S.A. § 1203(d). Without any foundational

evidence addressing the performance standards of the analytical instrumentation, the court had no

basis to find that the “analysis was performed by an instrument that meets the performance

standards contained in the rules of the Department of [Public Safety], and the instrument met those

performance standards while employed to analyze the sample,” and therefore could not properly

admit the test results. Rolfe, 166 Vt. at 13, 686 A.2d at 957.

¶ 12. We note that although the trial court determined that the State had employed a DPS-

approved analytic method, i.e., gas chromatography, it did not specifically determine whether the

analytical instrumentation met the performance standards established by rule. The trial court thus

failed to apply part of the admissibility standard established in Rolfe. Normally we would remand

for the trial court to make such a preliminary determination regarding admissibility using the

correct legal standard in the first instance. See State v. Massey, 169 Vt. 180, 188, 730 A.2d 623,

629 (1999) (“Questions of admissibility of evidence are for the court, see V.R.E. 104, and involve

the discretion of the trial judge.”). But doing so in this case would serve no purpose because the

record is devoid of foundational evidence regarding performance standards.

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¶ 13. We emphasize the narrowness of our decision today. We are not deciding the level

of detail necessary in the State’s foundational evidence for admitting blood-test results. The trial

court may, or may not, be correct as a general matter that a conclusory statement of compliance

with 23 V.S.A. § 1203(d) will suffice. We need not reach that inquiry because the State did not

meet that minimal burden here.

¶ 14. Because the State failed to present an adequate foundation to admit the results of

defendant’s blood-alcohol test into evidence, the court erred by admitting and relying on that

evidence. The State therefore could not prove an essential element, 23 V.S.A. § 1205(h)(1)(D),

and the judgment in the State’s favor cannot stand.

Reversed and remanded for entry of judgment for defendant.

FOR THE COURT:

Associate Justice

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