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State v. Hanks3/2/2001
ny would be unduly prejudicial and confusing.
Not surprisingly, the State has not argued, in the alternative, that any error on the part of the trial court in limiting defendant's cross-examination of its expert was harmless. The question of whether defendant was impaired was hotly contested at trial. In closing argument, the state's attorney repeatedly acknowledged that defendant was not "falling down" drunk, but emphasized that, under the law, the State had to prove only that defendant was slightly impaired. The state's attorney also emphasized the existence of the permissive inference created by the test result, stating that it indicated defendant's alcohol concentration was well over the legal limit at the time of operation. Under these circumstances, the trial court's limitation of relevant and potentially exculpatory testimony concerning the variability of partition ratios cannot be deemed harmless. See State v. Carter, 164 Vt. 545, 555, 674 A.2d 1258, 1265 (1996) (adopting beyond-reasonable-doubt standard for determining whether non-constitutional errors are harmless in criminal cases).
Reversed.
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