State v. Hanks
In State v. Hanks, 772 A.2d 1087, 1088 (Vt. 2001), the defendant was charged with driving under the influence of intoxicating liquor. The state introduced the defendant's breath test results to take advantage of a "permissive inference" in the Vermont statute that, "if the person's alcohol concen-tration . . . was 0.08 or more . . . the person was under the influence of intoxicating liquor." Id.; Vt. Stat. Ann. tit. 23, 1204(a)(2). When arrested, the defendant exhibited few if any visible signs of impairment, Hanks, 772 A.2d at 1092, and thus the test results and the permissive inference were important to the state's case.
The trial court precluded the defense from eliciting testimony regarding variations in individual partition ratios. Id. at 1090.
The Vermont Supreme Court reversed, holding that "such evidence was unquestionably relevant because it had some tendency to explain the alleged inconsistency between defendant's condition and the test result." Id. at 1092.
The Vermont Supreme Court concluded general partition-ratio evidence was admissible in a prosecution for DWI, similar to our (A)(1) DUI offense, because "any evidence raising a doubt as to defendant's condition . . . is relevant." 772 A.2d at 1092.
Although the court acknowledged the general evidence the defendant sought to admit was "not highly probative given the unlikelihood that defendant's partition ratio . . . fell outside the normal curve," the court specifically rejected the notion that allowing the evidence would confuse the jury. Id. The court reasoned:
Evidence on the variability of partition ratios would simply reveal to the jury that the breath-test result is based on a statutorily accepted conversion rate that tends to favor defendants, but that the result is not unassailable with respect to demonstrating impairment. We fail to see how such evidence would be confusing to the jury or unduly prejudicial to the State; to the contrary, not allowing defendants to reveal these scientifically recognized facts would make it difficult, if not impossible, for a defendant to challenge a test result that is admissible in generic DUI prosecutions only as a permissive inference on the ultimate question of impairment. Id. at 1093.