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State v. Longe9/24/1999
Defendant Barry Longe appeals the decision of the Franklin District Court denying his motion for judgment of acquittal following a jury verdict of guilty for operating a motor vehicle after license suspension in violation of 23 V.S.A. § 674(b). On appeal, defendant argues that the reason for defendant's underlying suspension is an essential element of a § 674(b) charge which the trial court erroneously removed from the jury's consideration. We disagree and affirm the conviction.
As a threshold matter, the parties disagree on our standard of review. Defendant maintains that this case presents an error of law, and accordingly is subject to de novo review. The State contends that this case involves a discretionary ruling regarding prejudicial evidence pursuant to V.R.E. 403 which is reviewed only for abuse of discretion. Although the issue was raised initially under V.R.E. 403, the actual question before us is whether the trial court improperly removed an essential element from the jury's consideration. This question presents a question of law and, accordingly, we review it de novo.
At issue in this case is the connection among three related sections of Title 23 of the Vermont Statutes. Defendant was charged with operating a motor vehicle while his license was still suspended as a result of his failure to comply with 23 V.S.A. § 1209a. Section 1209a provides in relevant part that no license suspended or revoked under the subchapter shall be reinstated unless the person has successfully completed an alcohol and driving education program. Section 1201 prohibits any person from operating, attempting to operate, or being in actual physical control of any vehicle on a highway when the person's alcohol concentration is .08 or more. See 23 V.S.A. § 1201(a)(1). Finally, § 674(b), the section with which defendant was charged, provides in part that:
person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of section 1201 of this title . . . and who operates or attempts to operate a motor vehicle upon a public highway before reinstatement of the license shall be imprisoned not more than two years or fined not more than $5,000, or both. 23 V.S.A. § 674(b).
Stated more succinctly: first, defendant's license was revoked for driving under the influence of alcohol, see id; second, he failed to satisfy the alcohol and driving education program, see id. § 1209a; third, he was charged with operating a motor vehicle while his license was still suspended (DLS) due to his failure to satisfy the requirements of § 1209a, see id. § 674(b).
Before the trial began, defendant indicated to the State and the court that he would object to any mention of driving under the influence (DUI). Accordingly, the State produced two witnesses, neither of whom testified that the defendant had been suspended for a DUI conviction. An employee of the Department of Motor Vehicles (DMV) testified that defendant's privilege to operate a motor vehicle was suspended on October 24, 1997, and had not been reinstated as a result of his failure to complete the § 1209a requirements. During the employee's testimony, however, the State introduced two exhibits documenting the suspension, one of which was a license suspension notice from the DMV indicating that defendant's license was suspended for operating a motor vehicle with a blood alcohol content of .08 or more. Defendant objected to admitting the documents, arguing that any language relating to alcohol concentration be redacted. Before admitting these documents, the court agreed to delete all language relating to DUI to avoid prejudice to the defendant.
Later, during a colloquy regarding jur
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