- Associated Press - Tuesday, April 26, 2016

MONTPELIER, Vt. (AP) - A Vermont judge has ruled that a drunken-driving breath test taken more than two hours after police stop a driver is too inexact to be considered evidence in court.

The state’s defender general, Matt Valerio, called the ruling by Orleans Superior Court Judge Howard VanBenthuysen a “game-changer” for DUI cases, but a prosecutor said Tuesday it’s a decision from just one judge that will have limited influence in other courts.

The judge on Monday threw out delayed breath test evidence in 25 drunken-driving cases in a decision that is expected to be appealed to the Vermont Supreme Court. He found fault with the Vermont Forensic Laboratory’s standards for calculating blood-alcohol content hours after a motorist’s encounter with a police officer, saying they are too inexact to meet the burden of proof in a courtroom.

VanBenthuysen agreed with defense lawyer David Sleigh, who took aim at the lab’s assumptions that a person hits peak blood-alcohol content 30 minutes after his or her last drink, and that the blood-alcohol content drops from there at a rate of 0.015 per hour. That means that someone who blows a 0.05 on a breath test at 8 p.m. is assumed to have been at 0.08 - at the legal threshold for drunken driving - at 6 p.m.

Sleigh, based in St. Johnsbury, called the decision both important and personally satisfying, saying he had been trying for nearly 30 years to get judges to pay closer attention to the science behind the drunken-driving breath test.

The time gap is important because there are many parts of rural Vermont where the Datamaster breath test machine the state uses is not immediately available, and the test cannot be given until hours after the stop. It’s also an issue in cases where there’s an accident and the driver goes to the hospital before police can administer the test.

The judge cited the testimony of a defense expert, as well as Amanda Bolduc, senior forensic chemist at the state lab, who acknowledged under questioning that people differ in the rate at which alcohol dissipates from their system, and the dissipation rate for a person can vary on different days.

Using a benchmark rate - even one that, as Bolduc testified, is beneficial to most DUI defendants - does not prove the calculation is accurate for the individual defendant, the judge found. A dissipation rate of 0.015 may be a reasonable average, but the judge cited testimony that the real rate in individual defendants can range from 0.01 to 0.02 or more.

“There appears to be no principled basis for the assumptions made,” VanBenthuysen wrote in his decision.

Valerio said police and prosecutors still will have other evidence at their disposal, including an officer’s testimony that a driver appeared drunk at the time of the stop.

“It’s the first time we’ve seen the court say as a matter of law that the standards that have been chosen by law enforcement in pursuing these cases don’t stand up to science,” Valerio said.

Gregory Nagurney, the state’s top prosecutor for impaired driving cases, said he couldn’t comment, citing legal ethics rules. Vincent Illuzzi, the state’s attorney in neighboring Essex County, said a decision from a single trial court would not be seen as setting a precedent.

But Valerio said it would have “persuasive value,” and could be used in arguments before judges in cases around the state.

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