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State v. Vezina7/1/2004
Defendant Douglas Vezina appeals from the trial court's denial of his Motion to Exclude Breath Test Evidence. Defendant argues that his right to a second breath test under 23 V.S.A. § 1202(d)(5) was violated when the arresting officer did not make an attempt to provide an alternative test after the testing instrument's failure to analyze the second breath sample, and that this failure warrants suppression of the first test's results. We affirm.
2. On April 22, 2002, a Newport police officer found defendant sitting in his parked vehicle on an exit ramp of Interstate 91. After a field sobriety test, defendant was transported to the Newport Police Department, where he was requested to provide an evidentiary breath sample. Defendant's breath sample was collected by a DataMaster Breath Testing Instrument, which reported a BAC of .118%. Defendant then requested a second test as 23 V.S.A. § 1202(d)(5) permits. [FN1] The officer attempted to perform the second test, but the DataMaster returned a reading indicating "out of range." This message appears when there is an anomaly with the alcohol-water solution contained in the DataMaster's simulator and the testing sequence cannot be run. [FN2] After the failure *315 of the DataMaster, the arresting officer did not attempt to locate another instrument to conduct a second test. The officer, however, advised defendant of his right to obtain an independent test at his own expense, [FN3] which defendant declined.
FN1. The statute provides: "A person who is requested by a law enforcement officer to submit to an evidentiary test administered with an infrared breath-testing instrument may elect to have a second infrared test administered immediately after receiving the results of the first test." 23 V.S.A. § 1202(d)(5).
FN2. The simulator is designed to contain a water-alcohol solution at constant temperature to provide a high precision alcohol-air standard. Vermont Justice Training Council, Infrared Breath Testing Device; Student Manual (1996). At the beginning of each test sequence, the DataMaster automatically runs a sample for the simulator. If the standard is out of the proper range, the instrument will print a "Simulator Out of Range" message and will not allow further operation until it is serviced and reset. Id.
FN3. 23 V.S.A. § 1202(d)(4) provides that "[a] person who is requested by a law enforcement officer to submit to an evidentiary test ...
has the right to have additional tests made by someone of the person's own choosing at the person's own expense."
3. Defendant filed a motion to suppress the first test result, arguing that suppression is the proper remedy for a violation of defendant's statutory right to a second state-administered test. The trial court denied the motion, reasoning that while the statute provides for a right to a second test, it does not address the consequence of police inability to conduct the test because the instrument itself is indicating that it cannot run a second sequence. The court noted that, unlike the denial of the statutory right to counsel in DUI processing, the circumstances resulting in the officer's inability to provide the second test do not rise to the level of a violation of implied consent rights that would warrant suppression. The court further emphasized that there is no claim of bad faith on the part of the officer, and that defendant was properly advised of his right to seek independent testing. After the trial court denied his motion, defendant entered a conditional plea agreement pursuant to V.R.Cr.P. 11(a)(2), pleading nolo contendere. This appeal followed.
4. Defendant argues that the court erred in admitting the first breath test because the police failure to procure or attempt to procure an alterna
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