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State v. Carpenter3/10/2000
Defendant appeals his conviction by a Washington District Court jury of driving under the influence of intoxicating liquor (DUI), arguing that the court committed plain error in charging a permissive inference of intoxication based on a blood-alcohol test taken more than two hours after estimated operation and where the evidence showed that defendant consumed alcohol after operation. Defendant also argues that the court erred by permitting the jury to find defendant guilty of a third or subsequent DUI offense on the basis of a conviction more than fifteen years old. We affirm.
I. Facts
Evidence presented at trial established that at some unknown time on the evening of July 20, 1998, defendant Charles Carpenter drove his car into a ditch. At 9:52 p.m., defendant arrived at the home of Doreen Gilmore, about 1/4 mile down the road from the accident scene, seeking assistance pulling his car out of the ditch. Ms. Gilmore testified that defendant was drinking from a bottle of beer and appeared intoxicated. He told her that he had just driven off the road and that it took him ten to fifteen minutes to walk to her house. Ms. Gilmore declined his request for help and directed him to her neighbors' home. She then called the State Police to report the incident and her neighbor Marion Hebert to warn her that defendant was on his way over. After these calls, Ms. Gilmore walked to where the car was stuck and noted that its engine was still running.
Defendant went next door to the Hebert home, still carrying a bottle of beer, and again requested assistance. He told Ms. Hebert that the accident had happened just a little while before, and that he'd gone to her neighbor's house first. Ms. Hebert testified that she could tell defendant had been drinking, but that he was not staggering drunk. Ms. Hebert's husband called defendant's uncle, who had a chain, and evidently he and defendant returned to the car to pull it out of the ditch.
State Police Trooper Robert Snetsinger arrived at the accident scene at approximately 10:12 p.m. Trooper Snetsinger identified defendant as the owner and operator of the vehicle. Defendant told the trooper that he had consumed "a couple, three beers," that he was traveling from Cabot to Barre, had pulled over to urinate, and gotten stuck when he attempted to return the car to the road. Defendant told Trooper Snetsinger that his last drink was thirty minutes ago (approximately 9:45 p.m.), that the accident had occurred two-and-a-half hours ago (approximately 7:45 p.m.), and that defendant had done all his drinking after the accident had occurred. At another point in their conversation, defendant stated that he had gone off the road at 8:30 p.m. When the trooper asked defendant where he had been drinking and with whom, defendant pointed in a southerly direction and replied "over there," and that he had drank with a woman named Jenny Bressett and an Angie, whose last name he did not know.
After failing a series of field dexterity tests, defendant was placed under arrest and taken to the State Police Barracks. There, at 12:19 a.m., defendant consented to a breath test that indicated a blood alcohol content (BAC) of .177%.
Defendant was charged with 23 V.S.A. § 1201(a)(1) ("A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway . . . when the person's alcohol concentration is 0.08 or more) and § 1201(a)(2) ("A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway . . . when the person is under the influence of intoxicating liquor."). The State also charged defendant as a recidivist under 23 V.S.A. § 1210(d) ("A person convicted
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