• High court eases Vt. breathalyzer rules in DUI cases
     | April 11,2005

    MONTPELIER – The Vermont Supreme Court has ruled that a data printout from breathalyzer machines is sufficient to prosecute drunken driving charges.

    The decision overrules a state Board of Health decision that said police would need a more direct reading from the memory function of the 66 Datamaster machines used by the Vermont State Police and other law enforcement agencies across the state.

    The board had overruled Vermont Health Commissioner Paul Jarris, who had ordered that the memory function be turned off on the machines.

    Defense attorneys have contended data stored on the machine's memory provides the most dependable information as to whether a machine was working properly at the time the breath tests were taken.

    However, the health department claimed that the cost of processing the information was too high and sought permission from the state's highest court to again turn the machines memory function off.

    "We conclude that the Board lacked jurisdiction to review the Commissioner's authorization to law enforcement to turn off the data-storage function," the Vermont Supreme Court wrote in its recent decision. "In addition, we hold that this authorization was not an agency action subject to review."

    The Supreme Court's ruling was posted late last week on the court's Web site.

    In its decision, the high court vacated the Board of Health's ruling that memory function of the machines must be turned on.

    "There is no law that requires law enforcement to utilize the DataMaster data-collection function, and the Commissioner is under no statutory duty to either maintain or disable this function. Indeed, the Commissioner took no action to require the use of the data collection function in the first place," the decision stated.

    "Viewed in this context, the Notice of DataMaster Function Termination plaintiff appealed to superior court and then to the Board is only a notice, as its words state, and is not a reviewable agency action."

    St. Johnsbury defense attorney David Sleigh had appealed Jarris' decision to the Board of Health. He argued that the records from the machines were needed to verify the machines were working properly.

    The health department argued in court records police who use the machines as well as the printouts that are provided when the arrest takes place are all that is needed to make sure the machines are working correctly.

    The health department in 1999 started to receive many requests from defense attorneys who discovered that information from the memory function could prove to be valuable in court.

    Collecting that information, however, often required a state employee to travel to the machine's location, and then health department chemists were called into court to testify about the information generated from the memory function of the machines.

    The health department estimated a full-time employee was needed to deal with the increasing number of court cases and about $30,000 annually was needed to design and maintain an automated data collection system from all DataMaster locations.

    According to court records, because of the lack of funding, drunken driving cases started being dismissed when chemists could not appear in person for every court case.

    Also, the department could not keep up with demands for memory printouts.

    Jarris in the spring of 2003 then called for the memory on all machines to be disabled, court records stated.

    The state Board of Health overruled Jarris seven months later. The board stated that Datamasters were the "most reliable and comprehensive tool available" to track the state's breath-testing machines.

    That decision by the board drew praise from defense attorneys, who hoped that the Supreme Court would uphold that decision.

    Contact Alan J. Keays at alan.keays@rutlandherald.com.

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