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State v. White

Supreme Court of Vermont
Sep 8, 1980
421 A.2d 1283 (Vt. 1980)

Opinion

No. 141-79

Opinion Filed September 8, 1980

Motor Vehicles — Alcohol Tests — Presumptions and Inferences

Where statute provided that if there was 0.10 percent or more by weight of alcohol in the blood or breath of one prosecuted for driving under the influence it shall be presumed that he was under the influence, and court's instruction gave the statute the effect of a burden-shifting presumption, rather than the effect of a permissive inference, there was reversible error. 23 V.S.A. § 1204(a)(3).

Appeal from conviction of driving under the influence. District Court, Unit No. 2, Chittenden Circuit, Costello, Chief District Judge, presiding. Reversed and remanded.

Mark J. Keller, Chittenden County State's Attorney, and Sandra L. Baird and Susan R. Via, Deputy State's Attorneys, Burlington, for Plaintiff.

James L. Morse, Defender General, William A. Nelson, Appellate Defender, and Daniel Albert, Law Clerk (On the Brief), Montpelier, for Defendant.

Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.


This is an appeal from a conviction for operating a motor vehicle while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). Evidence of a blood-alcohol content of .16% by weight at the time of testing was introduced, and related back to the time of operation. This triggered the operation of 23 V.S.A. § 1204(a)(3), which allows the jury to find that the defendant was under the influence at the time of operation upon proof of .10% blood-alcohol content by weight at that time. State v. Dacey, 138 Vt. 491, 418 A.2d 856 (1980). The court, however, erred in its instructions to the jury by giving § 1204(a)(3) the effect of a burden-shifting presumption, rather than a permissive inference. Accordingly, our decision in State v. Dacey, supra, requires reversal.

Because we are reversing, the other claims of error raised by the defendant need not be addressed.

Reversed and remanded.


Summaries of

State v. White

Supreme Court of Vermont
Sep 8, 1980
421 A.2d 1283 (Vt. 1980)
Case details for

State v. White

Case Details

Full title:State of Vermont v. Paul R. White

Court:Supreme Court of Vermont

Date published: Sep 8, 1980

Citations

421 A.2d 1283 (Vt. 1980)
421 A.2d 1283