State v. Rolfe

In State v. Rolfe, 166 Vt. 1, 686 A.2d 949 (1996), a case involving approximately one hundred consolidated appeals, the defendants challenged the validity of the Department of Health's regulations relating to methods for the analysis of infrared breath tests. The Court considered whether the Department's regulations were legally sufficient to meet the requirements of the DUI statute and, in particular, 23 V.S.A. 1203(d), which provides, in relevant part, as follows: "In the case of a breath test administered using an infrared breath testing instrument, the test shall be analyzed in compliance with rules adopted by the department of health. . . . A sample is adequate if the infrared breath testing instrument analyzes the sample and does not indicate the sample is deficient. . . . The analysis performed by the state shall be considered valid when performed according to a method or methods selected by the department of health. The department of health shall use rule making procedures to select its method or methods." The defendants argued, among other things, that the Department's regulations were incomplete because they failed to include step-by-step procedures for analyzing breath samples. The Court found this argument unavailing, holding that the Legislature intended a less specific approach by providing that a sample from an infrared breath-testing device would be considered adequate if the device did not reject it. Rolfe, 166 Vt. at 8-9, 686 A.2d at 955. The Court determined that, under 1203(d), the required foundation for admissibility of breath tests is a showing that the analysis of the sample was performed according to the methods selected by the Department of Health. Rolfe, 166 Vt. 1 at 12, 686 A.2d at 957. As long as the State demonstrates that the analysis of the challenged sample was performed by an instrument that meets the Department's performance standards, the defendant may not otherwise challenge the admissibility 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. Id. at 13, 686 A.2d at 957.