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Vermont State Trooper Loses Lawsuit
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A Vermont State Police trooper changed the numbers in a driver’s blood-alcohol breath test result to support a license suspension, and now the officer must pay the motorist $1,200 in damages, an Orleans County Superior Court judge has ruled.
Judge Edward Cashman issued the order against Trooper David Robillard following a small-claims hearing Wednesday in Newport. Robillard, a veteran trooper, works out of the state police’s Derby office.
Robillard was sued by the driver, William Henn, 45, of Lowell after Henn’s license was suspended based on Robillard’s claim that Henn’s blood-alcohol content was 0.102 percent after a November 2008 traffic stop in Derby — even though the figure generated by the Datamaster test was 0.69 percent.
Under state law, drivers cannot be prosecuted for drunken driving if their blood-alcohol content is found to be below 0.08 percent.
Robillard claimed the higher figure was scientifically valid, and therefore legal.
The license suspension went into effect Dec. 27, 2008, but was lifted nine days later, when Orleans County Deputy State’s Attorney Alan Franklin decided to dismiss the case.
Henn’s attorney, David Sleigh of St. Johnsbury, said he was surprised the state police did not try to settle the lawsuit and instead allowed it to go to trial before a judge.
“In my 25 years as a trial lawyer, I’ve never gotten a judgment against an individual trooper, ever,” Sleigh said.
Sleigh said Robillard wrongly believed the law allowed him to revise Henn’s breath-test result to a figure close to what a preliminary breath test indicated at the time of the traffic stop in order to support a license-suspension citation.
“Ignorance of the law is no excuse, whether you’re breaking it or enforcing it,” Sleigh said. “When a police officer is out there enforcing the law, he better know what it is, because now he is doing it at his own personal peril.”
Howard Kolfas, a staff attorney with the state Public Safety Department who represented Robillard at the Wednesday hearing, said he plans to appeal Cashman’s verdict. He said Robillard, as a state employee performing the duties assigned to him, should have been immune from being sued.
“We disagree with the judge on the law and the facts,” Kolfas said. “The commissioner (Thomas Tremblay) supports our decision to appeal. He acknowledges and appreciates that Trooper Robillard was out trying to do his job.”
Robillard did not respond to a request for comment.
According to Robillard’s sworn affidavit in the case, Robillard saw Henn’s car swerve across the center line of Darling Hill Road on Nov. 27, 2008. A minivan containing relatives of Henn was following Henn’s car.
Moments later, both vehicles stopped by the side of the road, as did Robillard.
“As Henn exited the vehicle he had failed to put the vehicle into park as I observed the vehicle rolling backwards,” Robillard’s affidavit read in part. “Henn was able to get back into the vehicle and get it stopped before it struck the other vehicle.”
Henn then wiped off his car’s headlights after saying he “could not see,” Robillard wrote in the affidavit. Henn then got into the passenger side of the car, and his wife, Torrie Henn, got into the driver’s side.
At that point, Robillard wrote that he initiated a traffic stop and, after concluding Henn showed signs of being under the influence of alcohol, conducted a preliminary breath test, which produced a reading of 0.118 percent. Such tests are not admissible in court.
Robillard placed Henn in custody and, while patting him down, discovered a marijuana pipe in Henn’s pocket and a baggie containing 2.7 grams of marijuana, the affidavit read.
Henn was then taken to the Derby state police station for processing. According to Robillard’s affidavit, he had to administer the Datamaster test six times because Henn invalidated the first five results by blowing short breaths into the device. The sixth test came back with the 0.069 percent result.
Henn was charged with negligent operation of a motor vehicle and marijuana possession. He pleaded no contest to the two charges in 2009 and paid $500 in fines.
Sleigh said that under a 2005 Vermont Supreme Court ruling, police cannot go back and reconfigure a person’s blood-alcohol breath test result to the time of a traffic stop in order to support a license-suspension charge.
Kolfas disagreed. He said the high court’s ruling allows a police officer to pursue a license suspension using a breath-test figure from earlier in the traffic stop if the figure has a scientific basis. In the Henn case, Robillard relied on a sworn affidavit from Amanda Bolduc, a state chemist.
“This estimate is founded upon known principles of absorption and elimination of alcohol by the human body,” Bolduc said in an affidavit. Her estimate was what produced the 0.102 figure.
The state’s appeal of Cashman’s order will be heard by a yet-to-be-designated Superior Court judge.