SCOVT reverses suspension of driver’s license, holding blood -alcohol test inadmissible for lack of foundation showing compliance with performance standards in DPS rules.

State v.  White, 2023 VT 38 

COHEN, J. Defendant appeals from the civil division’s final judgment suspending his driver’s license. He argues that the trial court abused its discretion in admitting the results of an evidentiary blood-alcohol test because the State did not offer sufficient evidence to demonstrate that defendant’s blood sample was collected and analyzed in compliance with Department of Public Safety (DPS) rules. We conclude that there was an insufficient foundation to allow admission of the test result and therefore reverse and remand for entry of judgment for defendant.

The trial court overruled the defense objection, reasoning that the plain terms of 23 V.S.A. § 1203(d) do not require anything more than a “conclusory” statement of compliance with DPS rules.

To provide a proper foundation for admission of blood-test results, the State must show that the sample was analyzed by gas chromatography according to the performance standards established in the DPS rules. The State submitted no foundational evidence to demonstrate compliance with any of these performance standards.  It would serve no purpose to remand  because the record is devoid of foundational evidence regarding performance standards.

We emphasize the narrowness of our decision today. We are not deciding the level of detail necessary in the State’s foundational evidence for admitting blood-test results. The trial court may, or may not, be correct as a general matter that a conclusory statement of compliance with 23 V.S.A. § 1203(d) will suffice.

We need not reach that inquiry because the State did not meet the minimal burden to present an adequate foundation to admit the results of defendant’s blood-alcohol test into evidence.

The court erred by admitting and relying on that evidence. The State therefore could not prove an essential element, 23 V.S.A. § 1205(h)(1)(D), and the judgment in the State’s favor cannot stand.

Reversed and remanded for entry of judgment for defendant.

How cited

Divided court affirms conviction for refusal to take evidentiary breath test.

State v. Erika M. Schapp, 2019 VT 27 [filed 5/17/2019]

EATON, J. Defendant appeals a conviction of refusal to submit to an evidentiary breath test to determine blood-alcohol concentration. Defendant argues that (1) the court erroneously admitted evidence of her refusal to take a preliminary breath test (PBT), (2) the State failed to meet its burden of proving the “reasonableness” requirement for criminal refusal beyond a reasonable doubt, and (3) the State failed to prove that she refused the test. We affirm

ROBINSON, J., dissenting. The majority’s conclusion that refusal to consent to a roadside preliminary breath test (PBT) is admissible as evidence in connection with a charge of criminal refusal to take an evidentiary breath test pursuant to 23 V.S.A. § 1201(b) runs afoul of the Constitution. Because the erroneous admission of evidence concerning defendant’s refusal to submit to the PBT was not harmless, I respectfully dissent. I am authorized to state that Justice Skoglund joins this dissent.

SCOVT affirms exclusion of evidence of medical causation that lead to denial of counterclaim for assault. Lay testimony as to medical causation is inadmissible. Statements in medical records as to the inception or cause of a condition or symptom are inadmissible under V.R.E. 803(4)—unlike the corresponding federal rule— even if pertinent to diagnosis or treatment.

Sweet, v. St. Pierre, 2018 VT 122 [filed 11/2/2018]


CARROLL, J. Defendants cross-appeal, arguing that the court erroneously excluded evidence relevant to their assault claim. We affirm.

Prior to trial, plaintiffs moved to exclude any evidence, such as medical records or testimony, that Roy St. Pierre suffered a stroke or any other medical or psychological injury as a result of the alleged assault. The court granted the motion, ruling that proof that the alleged assault caused Roy St. Pierre's medical condition required expert medical testimony. The court ultimately found that defendants failed to prove that Preston Sweet assaulted Roy St. Pierre by threatening to stab him with a screwdriver. It concluded that the statement was a joke and could not reasonably be found to have caused the psychological and physical injuries alleged by defendants in the absence of expert testimony.

There was no abuse of discretion in excluding the medical records. The medical records were hearsay. V.R.E. 801. Even if they were theoretically admissible under the exception for business records, plaintiffs did not disclose or call any witness who could lay the proper foundation for their admission. See V.R.E. 803(6) (providing that business records must come into evidence through testimony of custodian or other qualified witness).

Furthermore, to the extent that the medical records contained statements about the inception or cause of defendant’s alleged symptoms, such statements would not be admissible under V.R.E. 803(4). Under V.R.E. 803(4)—unlike the corresponding federal rule—statements relating to the inception or cause of a condition or symptom are not admissible even if pertinent to diagnosis or treatment.

The trial court also acted within its discretion in excluding any testimony from lay witnesses that Roy St. Pierre’s stroke or other symptoms were caused by the alleged assault. As the trial court correctly noted, expert testimony is ordinarily required to prove medical causation. Brace v. Vergennes Auto, Inc., 2009 VT 49, ¶ 9, 186 Vt. 542, 978 A.2d 441 (mem.); Wilkins v. Lamoille Cty. Mental Health Servs., Inc., 2005 VT 121, ¶ 16, 179 Vt. 107, 889 A.2d 245

Defendants have not shown that "the facts to be proved are such that any layman of average intelligence would know from his own knowledge and experience that the [alleged assault] was the cause of the injury," rendering expert testimony unnecessary. Egbert v. Book Press, 144 Vt. 367, 369, 477 A.2d 968, 969 (1984) (per curiam). We accordingly see no reason to disturb the evidentiary decision below.

Evidence: End run around hearsay rule fails under Rule 602, because witness who testifies to his understanding after an out-of-court interview lacks personal knowledge.

State v. Porter, 2014 VT 89 (01-Aug-2014)

CRAWFORD, J. Defendant Harold D. Porter, Jr. appeals from his conviction for attempted kidnapping. He argues that the trial court erred in admitting the testimony of police officers that they had ruled out other suspects based on interviews with out-of-court declarants; We reverse and remand.

Because the truck was relatively unique, police investigators working with the Department of Motor Vehicles were able to identify approximately twenty vehicles registered in Vermont which matched the make and color of the truck seen on camera. Ten vehicle owners testified at trial for the purpose of eliminating their truck or trucks from identification. The police interviewed five other owners prior to trial. These owners did not testify at trial. Instead, the investigating officers testified that based on the out-of-court interviews with the owners, the officers were able to eliminate those remaining trucks from the identification process. In the absence of evidence that the statements were based on personal knowledge, the requirement of Rule 602 was not met and the testimony of the officers should have been excluded.

Ex parte Internet search by Judge prohibited.

Rutanhira v. Rutanhira, 2011 VT 113 (Skoglund, J.)


Father appeals an order awarding mother primary legal rights and responsibilities for the parties’ daughter based on the court’s conclusion that father exercised poor judgment in desiring to take his daughter to his birth country, Zimbabwe. The trip, planned for the summer of 2010, coincided with the World Cup in South Africa. Mother objected. She viewed the trip to Zimbabwe as far too dangerous for daughter. Though father wanted daughter to know her heritage, he ultimately acquiesced to mother’s wishes. Nevertheless, this was the issue upon which the family court based its award of legal custody to mother. The court reasoned that “[t]aking the child to an unstable place . . . would not be a wise idea” On appeal, father contends that the trial court abused its discretion by considering evidence outside of the proceeding, specifically a post-hearing internet search about Zimbabwe. We agree that the trial court erred in relying on evidence gathered outside the proceeding, which father did not have an opportunity to contest, and we reverse and remand for the family court to rehear this matter.


There are two concerns about judicial Internet searches. Reliability and permanence of information are constant concerns with Internet-based resources. See D. Tennant & L. Seal, Judicial Ethics & the Internet: May Judges Search the Internet in Evaluating & Deciding a Case?, 16 Prof. Law. 2, 14-16 (2005). In its decision, the court referred to a “sampling” of information the court had viewed on the Internet. This was not necessarily a source Father relied upon in 2009 when making his decision. We cannot determine whether the “sampling” of information the court obtained from these sites was exhaustive or selective. It is impossible for us to review the record given the dynamic nature of information on the Internet and the necessarily time-bound query that produced such articles. The articles examined by the court, as far as we know, spanned several years and are from sources whose record for accuracy is unknown.


Second, is the lack of notice and opportunity to be heard. A court cannot undertake an Internet search after the submission of a case on an issue material to that case and rely on information or evidence not properly introduced. In doing so, a court denies parties the opportunity to address the information and confront potentially harmful evidence. Even in the context of judicial notice, our Rules of Evidence demand that the parties receive “an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” V.R.E. 201(e). Other appellate courts have reached a similar conclusion when reviewing a trial court’s reliance on Internet searches undertaken after the close of the hearing. Here, the trial court conducted its own investigation, using this further investigation to determine the outcome of the case. Neither party could reasonably expect such additional fact-finding. Neither had an opportunity to test any of the evidence acquired through this investigation. It was error for the court to rely on this evidence.