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State v. Lussier4/28/2000
y fashion."). To this end, the rules for civil suspension proceedings provide for procedural informality, and the rules of evidence generally do not apply. See D.C.C.R. 80.5(f); Stearns, 159 Vt. at 271, 617 A.2d at 142-43. The Legislature has specifically provided that affidavits of law enforcement officers and chemists are admissible to prove the State's case. See 23 V.S.A. § 1205(j). The statute further specifies that a law enforcement officer's affidavit "shall be in a standardized form for use throughout the state and shall be sufficient if it contains the following statements." Id. § 1205(b) (emphasis added). The section then sets forth seven separate criteria, including the certification of the officer, the results of the test and the time and date it was taken, and a statement indicating that the officer "had reasonable grounds to believe the person was operating, attempting to operate or in actual physical control of a vehicle in violation of section 1201." Id. § 1205(b)(3). Again the statutory requirements focus primarily upon the qualifications to administer an appropriate evidentiary test.
As this Court explained in Stearns, " he system is structured so that the State can prove its case without taking the arresting officer from law enforcement duties to testify." 159 Vt. at 271, 17 A.2d at 143. This will no longer be the case. Opening the civil hearing to constitutional challenges to the underlying motor vehicle stop will effectively preclude the State from relying on an officer's affidavit. What once was sufficient under §1205(h) will no longer suffice. The State will be compelled to call the officer as a witness, and the "summary proceedings" contemplated by the statute will only exist in memory. Indeed, absent any requirement that defendants disclose the issues or testimony they intend to present at the hearing, the State may be compelled to keep officers on stand-by status in case there is a challenge to the validity of the underlying stop. See D.C.C.R. 80.5(e); Stearns, 159 Vt. at 271 n.2, 617 A.2d at 143 n.2. It is difficult to imagine a result more at odds with the language and purpose of the civil suspension statute.
In all but one of the cases from other jurisdictions relied upon by the majority, the decisions were based upon operative language that does not appear in Vermont's civil suspension statute. Pooler v. MVD, 755 P.2d 701 (Or. 1988) is typical. The civil suspension hearing there was limited to several issues, including whether " he person, at the time the person was requested to submit to a test . . . was under arrest for driving while under the influence of intoxicants." Id. at 702. That requirement, not found in our statute, formed the basis of the Oregon court's decision. As the court explained: " he arrest which is a prerequisite to a lawful suspension . . . must be a valid arrest . . . . If the arrest must be valid, it follows that the scope of the administrative hearing before the hearing officer included the question of the validity of the arrest." Id. at 702-703. Similar statutory language formed the basis of the decisions in People v. Krueger, 567 N.E.2d 717, 722-23 (Ill. App. Ct. 1991) (holding that "under arrest" requirement of civil suspension statute required finding of valid arrest); (Watford v. Bureau of Motor Vehicles, 674 N.E.2d 776, 778 (Ohio Ct. App. 1996) (construing "under arrest" provision of civil suspension statue to meant that "a lawful arrest, including a constitutional stop, must take place"); and Gikas v. Zolin, 863 P.2d 745, 749 (Cal. 1993) (noting that "under arrest" provision of civil suspension statutes means that "the underlying arrest must have been lawful"). The one exception cited by the majority is Brownsberger v. MVD, 460 N.W.2d 449 (
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