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In re Sleigh ex rel Unnamed Motorists Accused of DWI Infractions3/23/2005
ENTRY ORDER
1. This appeal stems from a petition filed by David Sleigh with the Vermont Board of Health (Board) challenging the Vermont Commissioner of Health's decision to authorize law enforcement to turn off the data-collection function of DataMaster instruments, which are used to calculate Breath Alcohol Concentration (BAC) in DUI cases. Following a hearing, the Board required the Commissioner to reactivate the data-collection function of the DataMaster instruments and to establish a BAC Breath Testing Task Force. On appeal, the State claims that (1) petitioner lacks standing to challenge the Commissioner's decision; (2) the Commissioner's decision was entitled to deference and should be upheld; and (3) the Board exceeded its authority in ordering the Commissioner to create a task force. We do not reach the State's claims because we hold that the Board had no jurisdiction to review the Commissioner's notice and, further, that it was not an appealable decision. Therefore, we vacate the Board's decision and dismiss the appeal.
2. This controversy has its roots in changes the Legislature made in 1989 to update the process for adjudicating DUI cases. 1989, No. 68 (codified as amended at 23 V.S.A. §§ 1200-1215). Specifically, the Legislature created a civil infraction for DUI with a streamlined procedure and approved use of infrared spectroscopy for breath alcohol analysis. 23 V.S.A. §§ 1203(d), 1205.
3. Under authority granted in the legislation, see 23 V.S.A. § 1203(d) ("The department of health shall use rule making procedures to select its method or methods."), the Department of Health promulgated a rule, specifying the approved methods for breath analysis. Breath and Blood Analysis Rule § C.I, 4 Code of Vermont Rules 13 140 003-2 (1997) [hereinafter Breath and Blood Analysis Rule]. The rule delineates that " he analytical instrumentation and procedures used for analysis of breath alcohol content for evidentiary purposes shall be approved by the Commissioner of Health." Breath and Blood Analysis Rule § C.I.6; see State v. Rolfe, 166 Vt. 1, 9, 686 A.2d 949, 955 (1996) (upholding delegation to commissioner to approve machinery). The Commissioner then approved analytical instruments, including the DataMaster for measurement of BAC through infrared spectrophotometry, and also approved procedures for the instruments' use as outlined in the Vermont Criminal Justice Training Council manual. See State v. McQuillan, 2003 VT 25, 10-14, 175 Vt. 173, 825 A.2d 804 (rejecting argument that procedures in manual must be adopted through formal rule-making).
4. The DataMaster is a device that law enforcement officers can use on site to obtain BAC levels from suspects based upon a breath test. The DataMaster measures alcohol concentration by calculating how a beam of infrared energy passes through the breath sample compared to how it passes through ambient room air. If alcohol is present in the breath sample, some of the energy will be absorbed, and this loss of energy can be correlated to the alcohol concentration. To operate the DataMaster, a law enforcement official must go through a series of steps to properly prepare and calibrate the machine.
5. The DataMaster includes a function for instrument data collection that stores in the machine data from previous tests and any errors that occurred during testing. The stored data, covering up to seventy previous tests, can later be retrieved via a modem to an offsite computer or directly to a laptop on site. If the information is not downloaded, the machine will begin to overwrite the recorded data. The original intent of this function was to collect data for demographic and statistical analysis, but, due to
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