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= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; SUPREME COURT DOCKET NOS. 2004-451 & 2004-554
= &n= bsp; &nbs= p; = &n= bsp; APRIL TERM, 2005
State of Vermont = &n= bsp; &nbs= p; = <= /span>} = APPEALED FROM:
v. = &n= bsp; &nbs= p; = &n= bsp; } = District Court of Vermont,
Mary Ann Ebersole-Leblanc&nb= sp;  = ; &= nbsp; }
} DOCKET NO= S. 405-8-04 Cncs &
= ;  = ; 4513-8-04 Cncr
Trial Judge: Michael S. Kupersmith
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Defendant appeals the suspension of her drivers license and her conviction for drunk= en driving, arguing for reversal of the trial court’s decision to admit= the results of a breath test she took. We affirm.
On August 21, 2004, a Colchester police officer stopped defendant for suspici= on of driving under the influence (DUI). After administering field sobriety tests, the officer took defendant into custody to process her for DUI. Defendant had agreed to submit to a breath test, which the officer administered at the police station. Because of the way defendant blew into the machine, the first test resulted in an “invalid sample” reading. The officer told defendant that h= er failure to blow hard enough a second time would be considered a refusal to= take the test. Defendant agreed t= o a second test, which revealed a blood alcohol level (BAC) of .173.
Defendant moved to suppress the results of the breath test in the subsequent civil suspension and criminal proceedings. At the hearing on defendant’s motion, the arresting officer a= nd a State chemist testified. Thr= ough the chemist’s testimony, defendant sought to prove that the results = of the second test were invalid. Defendant argued that the arresting officer violated Department of Health procedures for gathering a breath sample by not waiting fifteen min= utes after the first test to administer the second one.
court rejected defendant’s theory and denied the motion to suppress.=
There was no dispute that the mac=
used to analyze the breath sample was functioning properly at the time
defendant submitted to the test.
According to the court’s findings, defendant’s first te=
failed because she interfered with the airflow necessary for the machine to
register a valid sample. The=
concluded that, under the circumstances, it was unnecessary for the office=
wait fifteen minutes after the first test to administer the second test.
The result showing a BAC of .173 =
therefore, admissible against defendant in the civil and criminal
proceedings. After the court=
defendant’s motion, it entered judgment for the State in the civil
Subsequently, defendant entered a conditional nolo contendere plea =
the DUI charge subject to her appeal of the suppression issue.
On appeal, defendant claims the court should have suppressed the breath test results because the State did not prove that the officer administered the = test in accordance with Department of Health regulations. She argues that a fifteen minute = waiting period between breath tests—a standard recommended by the Vermont Criminal Justice Training Council—is necessary before the court may = admit the test results into evidence. Defendant’s argument has no merit under our precedents. Results of a breath test are admi= ssible “if the State shows that the analysis [of the test] was performed by= an instrument that meets the performance standards contained in the rules of = the Department of Health, and the instrument met those performance standards w= hile employed to analyze the sample.”&nb= sp; State v. Rolfe, 166 Vt. 1, 13 (1996). The procedures established by the Vermont Criminal Justice Training Council “do not affect the foundat= ional requirements for admissibility.”&nb= sp; State v. Massey, 169 Vt. 180, 187 (1999). The defendant may, however, chall= enge the reliability of the results if the test is taken without following the Council’s recommended procedures.&n= bsp; Id. As the Cou= rt explained in State v. McQuillan,
As long as the State demonstrates that the analysis of the challenged sample = was performed by an instrument that meets the Department’s perfor= mance standards, the defendant may not otherwise challenge the admissibility<= /u> of the test result; rather, the defendant can only contest the foundation = facts or urge the factfinder to give little or no weight to the test.
2003 VT 25, ¶ 7, 175 Vt. 173. In this case, there was no dispute that the instrument used to administer and analyze the test was functioning properly and in accordance with the relev= ant regulations. Thus, the trial= court properly denied defendant’s motion to suppress because the test resu= lts were admissible.
Defendant argues in the alternative that even if the question is one of weight and n= ot admissibility, the trial court still erred. She claims the court should not h= ave placed any weight on the results of her breath test because the State chem= ist testified that the results were unreliable. The trial court found otherwise.<= span style=3D'mso-spacerun:yes'> Thus, unless defendant demonstrat= es that the court’s finding has no evidentiary support, we will not disturb = it on appeal. State v. Zaccaro<= /u>, 154 Vt. 83, 86 (1990).
Defendant has not met her burden. The = State chemist did not testify that the test results were unreliable as defendant asserts. The chemist explain= ed that the arresting officer’s failure to wait fifteen minutes between the = first and second tests meant that he did not follow the established procedures f= or sample gathering. The concern behind the waiting period was to allow for the dissipation of mouth alcoho= l if that was the cause of the “invalid sample” reading. Thus, the chemist testified that = the reliability of the results from a test preceded by an “invalid sample” reading must be determined on a case by case basis. She acknowledged that the instrum= ent used in this case will give an “invalid sample” reading when t= he machine does not detect sufficient airflow over a certain period of time.<= span style=3D'mso-spacerun:yes'> On the basis of this evidence, an= d the testimony of the arresting officer, the court found that the “invalid sample” reading during the first test was caused by a lack of airflow because defendant’s tongue intermittently blocked the mouthpiece and= not because of the presence of mouth alcohol.= On this record, the court could find that the test results were both admissible and reliable.
BY THE COURT:
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Frederic W. Allen, Chief Ju= stice (Ret.),