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State v. Ratliff7/9/1999
his breath and insist upon a blood sample being taken." Whether a person is able to give a sufficient sample of his or her breath for testing is an objective, factual inquiry, not a matter of the officer's subjective belief. See id. Moreover, 23 V.S.A. § 1202(2) permits an officer to exercise judgment that a blood sample is necessary only when the person is incapable of decision or unconscious or dead.
In this case, the law enforcement officer apparently consulted with a medical professional to determine defendant's ability to provide a sufficient breath sample. The officer's affidavit shows, however, that the doctor was concerned that the stitches on his chin might possibly open up if defendant tried to blow into the infrared machine; the doctor did not say defendant was unable to provide a sufficient sample. The officer used the doctor's equivocal response to determine defendant would be unable to successfully provide a breath sample. Under these circumstances, the officer had no authority to insist that defendant submit to a blood test. The better practice, in this instance, would have been for the officer to have actually permitted defendant to attempt to provide a breath sample to determine whether or not he was able to give a sufficient sample. See id. 136 Vt. at 428, 392 A.2d at 392.
In the absence of any evidence to indicate defendant was unable to take a breath test, the court erred in holding that defendant had refused to provide an evidentiary sample. See State v. Yudichak, 147 Vt. 418, 420-21, 519 A.2d 1150, 1152 (1986).
Reversed.
Jeffrey L. Amestoy, Chief Justice
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice
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