Defendant entered a conditional guilty plea to the charge of driving while intoxicated (DWI). He argues on appeal that the superior court’s criminal division erred by denying his motion to dismiss both the criminal charge and the civil suspension of his license. Defendant argued for dismissal based his claim that the Vermont Department of Health’s negligence deprived him of his statutory right to obtain an independent blood test result. We affirm.
It was the Department that failed to correctly label the sample, resulting in it being misfiled and eventually destroyed. Because defendant’s inability to obtain an independent test was not “prevented or denied by the enforcement officer,” there is no basis in the statute for suppression of the remaining evidence, and no call in the statute for dismissal. 21 V.S.A. § 1203a(a).
Defendant maintains that the department’s negligent handling of his blood sample deprived him of his constitutional right to “call for evidence in his favor” as set forth in Chapter I, Article 10 of the Vermont Constitution. Under the applicable Bailey test, “if a defendant shows a reasonable possibility that the lost evidence would be exculpatory,” then the proper sanction for its absence depends upon a pragmatic balancing of the following three factors: “(1) the degree of negligence or bad faith on the part of the government; (2) the importance of the evidence lost; and (3) other evidence of guilt adduced at trial.” Id. (quotation omitted). Essentially, defendant argues that the trial court erred in failing to dismiss the charge against him based on an application of the Bailey test. Having weighed the Bailey factors, we find no constitutional violation and agree with the trial court that dismissal of the charge against defendant was not an appropriate remedy for the mistakenly destroyed evidence in the context of this particular case.
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