Attorney Fox argued that you “could drive a truck through the reasonable doubt in this case” and, after 2.5 hours of deliberation, the 12 person jury agreed.

A favorite tool for law enforcement in detecting drivers operating under the influence of alcohol, DUI checkpoints have long been effective in law enforcement netting arrests on busy holiday weekends such as Memorial Day and the 4th of July.  However, drivers would be remiss to believe that these checkpoints are present only to detect potential alcohol based offenses along busy Vermont roads.  Instead, in recent years, law enforcement have honed their skills to detect other offenses, such as drug consumption that can also result in a motorist be inglead off to the mobile command post to be processed for a criminal offense.

Of the most common offenses detected by law enforcement is the possession and consumption of marijuana.  Although possession of small amounts of marijuana have been decriminalized (resulting in only a civil infraction, not a criminal citation for possession of under 1 oz.), the detection of marijuana can now lead to not only a hefty fine, but also increased scrutiny by law enforcement to see if the operator is under the influence of marijuana while driving the motor vehicle.  Although this is not your standard run of the mill DUI investigation, drug recognition experts are being trained at increased levels to be able to respond quickly to a report of a potential driving while high infraction.

These offenses carry with them the same penalties as a driving under the influence of alcohol charge (maximum of 2 years in jail and loss of license for up to 6 months).  Further, even if a motorist is found not be under the influence of marijuana, but is under the age of 21, they can face up to a 6 month license suspension as a result of merely possession a small amount of marijuana.

DUI checkpoints are misleading in name and in purpose.  Law enforcement use these checkpoints to have unfettered brief contact with a magnitude of individuals to detect and arrest those suspected of violating Vermont laws.  Thus, when approaching one of these checkpoints it is important to know that all actions committed by the driver will be heavily scrutinized and that you will not be off the hook if you have not consumed alcohol, but may have something else of interest in the vehicle that a well trained Vermont law enforcement officer may be able to detect.

So, what happens when an officer fails to follow the script? In a recent Vermont Superior Court case in Windham County, the presiding judge found that the officer’s deviation from the implied consent rights script warranted a suppression of the refusal and a dismissal of the civil suspension.

Ad Lib at Your Own Peril

Defendant argued that the officer informing him that regardless of what the breath test showed, he would be facing a “case” was confusing enough to cloud the Defendant’s judgment in determining whether to submit to a test or not.

The Court found that implied consent rights must be strictly interpreted and that the deviation in this matter was substantial enough to effect Defendant’s decision making ability. The court referred to the DUI affidavit, stating that nowhere in this form was their a requirement by the officer to inform the Defendant that regardless of his breath test results, he would be charged with a crime.

Implied Consent Rights are Your Rights

It is important for any suspect to a Vermont criminal investigation to know all of their rights so they can make an informed decision. Although not as clear as other rights afforded suspects, such as Miranda, Implied Consent rights hold substantial weight in the eyes of the law if they are not followed. Holding law enforcement accountable, even in times where the officer is proceeding in good faith, is essential to ensuring that the rights afforded defendants do not diminish over the passage of time, especially when it comes to the gathering of such a crucial piece of evidence in any Vermont DUI case.

However, even under optimal conditions and clear instructions from the officer, the FSTs are not conclusive proof of impairment. Although the FSTs can serve as one piece of a much more complex DUI puzzle, the burden on the state to prove each of the elements of DUI beyond a reasonable doubt require far more then an officer’s observations of the FSTs.

Can Prior Injuries or Diagnosis Explain FST Failure?

In some cases, the lack of balance, which plays a significant role in all 3 of the FSTs, can be explained due to medical conditions that impact a defendant’s ability to maintain a balanced position, especially under the stressful circumstance of a DUI investigation.

Have you suffered a lower body injury? Have you suffered a concussion or other brain injury. Do you have high sensitivity to light or occasions of Vertigo? If so, it is important to gather records of these injuries through your medical providers in order to provide some context as to the failure of the FSTs.

Did a Car Accident Occur Prior to FSTs?

In some cases, a defendant is requested to perform FSTs shortly after they were involved in a motor vehicle accident. Although there is no hard and fast rules prohibiting FSTs from being taken after an accident has occurred, the injuries sustained as a result of the crash can cast into doubt the validity of the tests.

Even in situations where the defendant is not transported to the hospital, it is still important to be evaluated by a medical professional in order to determine the extent of the bodily damage that was sustained. If a defendant declines all treatment, this important evidence as to their condition at the time of performing FSTs is lost, making it harder to explain to a judge or jury the impact this accident had on balance and the comprehension of officer instructions.

Age and Weight Can Raise Doubt as to FST Performance

Although not considered definitive, the National Highway Safety Association has found that individuals over the age of 65 and those who are 50 or more pounds overweight may have a more difficult time performing the FSTs even if not under the influence. Officers are encourage to take these factors into consideration when determining probable cause for a DUI arrest.

Even if the defendant is still arrested, using the NHTSA recommendations can cast doubt as to the validity of the FSTs, especially in cases where additional medical conditions are also a concern.

Gather Your Medical Records Early in a DUI Prosecution to Determine Whether a Defense Exists to the FSTs

It is not illegal to be off balance. Explaining the underlying cause of imbalance through medical testimony can be an impactful way to argue to a jury that the results of the FSTs in a Vermont DUI prosecution should be significantly discounted, or, in some cases, all together ignored. By putting together a medical chronology that supports a medical defense to a DUI, a defendant may be able to show that alcohol or drugs were not the underlying factor of their roadside behavior.

The information contained in this post is for informational purposes only. Any reader who has specific questions about the DUI or any other legal process should consult with their own private attorney.

The Vermont DMV has strict timelines on the filing of a uniform accident report by a motorist who is involved in a car accident where damage has been sustained. However, if there is an ongoing investigation into an accident, or if a motorist has been cited for a criminal offense, such as DUI or Negligent Operation, there are several complicated considerations that should be evaluated before submitting this report.

23 VSA  § 1129 states:

“The operator of a motor vehicle involved in a crash in which someone is injured or there is total property damage of $3,000.00 or more shall make a written report concerning the crash to the Commissioner on forms furnished by the Commissioner. The written report shall be mailed to the Commissioner within 72 hours after the crash. The Commissioner may require further facts concerning the crash be provided upon forms he or she furnishes (emphasis added).”

The Details of the Report

Much of the information requested in this report is not prejudicial to the defense of any claim that is brought against the motorist. Information such as the make and model of the car, policy number for insurance and your name and date of birth should be freely provided in a timely fashion. However, on page two of the Uniform Crash Report, there is a section that requests that you, in your own words, provide a narrative of what happened.

Filing a False Report

First off, it should be made clear that filing any type of false information in this report can be considered a crime under 13 V.S.A. § 1754.

Providing an Accurate Narrative

Further, if you provide an accurate detailed description of the events that led up to the accident, this information, which you are required to swear to the truth of, could be used against you in a criminal prosecution.

Does the 5th Amendment Apply?

All defendants in criminal actions have a right to not incriminate themselves under the 5th Amendment of the US Constitution. Since the DMV is requesting just that in their Uniform Accident Report, declining to answer may be a viable option after you have consulted with your attorney.

What Are the Consequences of Not Filing Any Report?

The Vermont DMV can move to suspend your license should you fail to fill out any accident report. As stated above, the basic identifying information should not provide too much risk of self incrimination. However, consulting with the appropriate legal professionals before submitting this report may be the best course of action before you ultimately determine how detailed you want to be in responding to the DMV’s request for information.

The information contained in this post is for general information only. Should you need specific legal advice concerning any matter, consult with your personal attorney.

Impaired Driver Rehabilitation Program (IDRP) Screening

The first step in license reinstatement is to complete an initial screening with the IDRP coordinator. This screening will determine whether there are alcohol or drug dependency issues that increase the likelihood of reoffending.

IDRP Class

After the screening has been completed, an individual convicted of DUI must then complete the class portion of the IDRP program. This class, requires regular attendance at group sessions (most are held via Zoom at this time). There are two options for DUI offenders. Participate in a once a week class for four weeks, or complete an overnight weekend intensive class. To see where these classes are held and on what dates, visit the IDRP calendar page.

Counseling

One of the major reasons for an initial screening is to determine whether an individual needs to engage in alcohol or drug counseling as a result of the findings in the screening report. For a DUI-First, there is customarily a requirement of at least four counseling sessions with a Licensed Drug and Alcohol Counselor (LADC). DUI-Second offenses carry enhanced counseling requirements. LADCs are in high demand throughout Vermont and can be difficult to connect with to set up an initial appointment. If you do not have a personnel connection with an LADC, a good place to start looking can be found HERE.

The Certificate of Completion

Once both the IDRP class and, if necessary, counseling sessions have been completed, IDRP should send a completion certificate to the Vermont DMV, notifying them that this requirement has been complete.

Unfortunately, this certificate does not always automatically get sent after completion. It is important to conduct the necessary follow up with both the DMV and the IDRP program to ensure that the two agencies are communicating in a timely manner. Otherwise, your license could be held in limbo while the slow wheels of bureaucracy grind along at a snail’s pace.

SR-22 Certificate

Vermont requires that all individuals convicted of a DUI must obtain an SR-22 certificate from their insurance company, certifying that they are providing at least the mandated minimum coverage. Vermont’s minimum coverage currently sits at $25,000 per person, $50,000 per accident and $10,000 in property damage. For more information on the SR-22 process visit the Vermont Department of Financial Regulation website.

Paying Reinstatement Fee

An often forgotten phase of the license reinstatement is paying the necessary license reinstatement fee to the Vermont DMV. Currently the fee is $98.00 and can be paid by visiting the DMV website.

If you do not pay this fee, your license will not be reinstated. I have seen numerous cases throughout the year where a motorist has been pulled over and arrested for Criminal Driving While License is Suspended merely because they never paid the reinstatement fee.

Your License is Not Reinstated Until You Receive Notice from the Vermont DMV

Do not assume that you are reinstated because you have completed the necessary steps. In order to be considered legally reinstated you must receive written notice from the DMV.

The DUI process carries with it many legal hurdles in order to get your life back on track. Although the criminal side of things bring potential financial penalties as well as the risk of a period of incarceration, the license suspension process can also be ripe with potential peril. Ensuring you understand and are able to navigate both in the most efficient manner possible is key to ensuring that the DUI become a distant memory in as short a time as possible.

There have been court cases in which this process has been used as a defense when the defendant was a type 1 diabetic and had high levels of ketones in their blood, which therefore were producing this effect where acetone or potentially Isopropanol was detected in the breathalyzer test causing a false positive.   “If ketoacidosis develops, the diabetic person may experience a myriad of symptoms including dry-mouth or fruity breath odor, and keytones on the breath could theoretically register as ethyl alcohol on BAC breath tests. Brick, Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study, 9(1) Alcohol, Drugs and Driving (1993). In Michaels v. State ex rel. Dep’t of Transp., the defendant, a type 1 diabetic, claimed his blood-alcohol levels may have been affected by ketoacidosis. 2012 WY 33, ¶ 8, 271 P.3d 1003, 1006 (Wyo.2012).” Supreme Court of Wyoming. ANDERSON  v. The STATE of Wyoming, 2014.

There are other circumstances where this chemical process will happen in the body of people without a diagnosis of type 1 diabetes.  Diets that are very low carb or no carb “ketogenic” diets, which are rapidly becoming a norm for use in weight loss can trigger this same chemical reaction in the body, producing a buildup of ketones (or ketoacidosis) leaving byproducts that look like alcohol to a breathalyzer machine. “The National Highway Traffic Safety Administration (NHTSA) in the USA has found that dieters and diabetics may have acetone levels which are hundreds and even thousand of times higher than those in others. Acetone is one of the many substances that can be falsely identified and measured as ethanol by some breathalyzer machines.”  Tazhmoye V., Crawford Donovan, A. McGrowder, Joan M. Rawlins: An assessment of falsely convicted type 1 diabetics in Jamaica by using the breathalyzer test, 2011.

Low calorie diets that may still utilize carbs for fuel can also cause this process, (Very Low Calorie Diet) “VLCD treatment leads to ketonemia with high concentrations of acetone, acetoacetate and beta-hydroxybutyrate in the blood. The interlock device determines alcohol (ethanol) in breath by electrochemical oxidation, but acetone does not undergo oxidation with this detector. However, under certain circumstances acetone is reduced in the body to isopropanol by hepatic alcohol dehydrogenase (ADH)”.  Int J Obes (Lond). 2007 Mar;31(3):559-61. Epub 2006 Aug 8.False-positive breath-alcohol test after a ketogenic diet.Jones AW1, Rössner S.  

Based on the factors above which highlight the possibility for the human body to naturally produce certain chemicals that would be mistaken for ethanol in a breathalyzer test, one might conclude that with a growing population struggling with an obesity epidemic, an increasing amount of people adopting a low carb or no  carb, “ketogenic” diet, and he possibility of an extreme low calorie diet as a result of poverty, that the incidents of false positive breathalyzer tests in defendants who have consumed under the legal limit of alcohol, (or no alcohol at all) but may present with this metabolic picture, could be greater than law enforcement take into account. That being said, there is no reason to trust a breathalyzer as the only evidence that a driver was intoxicated.  A defense attorney, who practices in DUI should take into account the variety of physiological factors that have been scientifically tested more recently, which may indicate an error in the current system for testing a driver’s BAC on the roadside.

According to police affidavits, Michael was pulled over for staying in the passing lane as he approached the onramp to I-91.  The officer who pulled him over, a local sheriff’s deputy, stated that he could smell marijuana coming from the car. Michael admitted to the officer that he was in possession of under an ounce and he handed over the marijuana to the officer.

What could have resulted in a traffic ticket and a fine, turned into a criminal investigation due to the officer suspecting that Michael may be under the influence of marijuana.

Michael was subject to standard alcohol based field sobriety tests, and a roadside breath test, which showed that Michael had no alcohol in his system.

Instead of letting Michael go, the officer arrested him, alleging that he had probable cause to believe that Michael was under the influence of marijuana.  Attempts were made to contact a specially trained Drug Recognition Expert, whose 12 step evaluation is used to issue an opinion on whether a motorist is under the influence of drugs.  No such DRE was available to evaluate Michael on this evening.

Michael was subsequently lodged at the Southern State Correctional Facility, where he was released several hours later after being able to post bail.  Michael’s name and details of his arrest were released to the media and he was issued a citation to appear in court.

Michael hired an attorney and he plead not guilty.  Several months later, the State dismissed all charges against him.

Marijuana and Driving

Michael’s arrest illustrates the significant grey area surrounding marijuana use and its effect on operating a motor vehicle.  State legislators across the country are grappling with marijuana based DUIs as legalization for both medical and recreational use continues to gain momentum.

Currently 29 States have legalized medical marijuana use, while 9 States have enacted laws legalizing recreational use, with three; California, Massachusetts and Vermont enacting legalization that will take effect in 2018.

According to a recent Rand report, which was commissioned by Vermont lawmakers, household surveys found that 12 percent of Vermont’s population ages 12 and older— and nearly 30 percent of those ages 18 to 25—reported using marijuana in the past month.  “We have seen statistically speaking a slight rise in marijuana consumption over the last 15 years,” stated Ben Hansen, an economist with the University of Oregon who has conducted extensive research in the Marijuana market. “Meanwhile, tobacco and alcohol sales have been plummeting during that same time period.”

Proving a Marijuana DUI

The changing legal landscape has placed an urgency on developing reliable investigative criteria for Law Enforcement in order to support an arrest on suspicion of an operator operating under the influence of marijuana.

Vermont Bill H.501, which amended the drugged driving statute in 2013, gave law enforcement significant leeway in making arrest determination. Instead of requiring law enforcement to prove that the operator was “under the influence to a degree that renders the person incapable of driving safely”, lawmakers amended the language to only require that law enforcement prove the operator was “under the influence to the slightest degree”, which is the same standard used to charge individuals of driving under the influence of alcohol.

Lt. John Flannigan, the Drug Evaluation and Classification Coordinator for the State of Vermont, stated that the amendment has given additional power to law enforcement, that allows for the same standard to be used for all substances.  “There is no set criteria for law enforcement to reach a conclusion of impairment,” stated Flannigan, “There is no magic number of clues, in order to make an arrest, an officer must look at the totality of the circumstances”

The totality of the circumstances noted by Flannigan equates to the finding of Probable Cause which is necessary for a citizen to be arrested for suspicion of a committing a criminal offense.  The Vermont Supreme Court in the 2005 case of State v. Goldburg found that  probable cause exists when the affidavit sets forth such information that a judicial officer would reasonably conclude that a crime had been committed …” (internal citations omitted).

Much of the fact finding to support a reasonable conclusion of criminal activity falls on the shoulders of the 52 Drug Recognition Experts located within Vermont, commonly referred to as DREs. “We want to make sure that we provide specialized service to every corner of the State,” stated Lieutenant Flannigan. “We still have areas of need in the state and we are looking to fill those holes.”

Flannigan has acknowledged the evidentiary hurdles law enforcement face when investigating drugged driving cases as many of these cases hinge not only on the DRE opinion but also the results of blood tests, which can be taken several hours after a traffic stop, and analyzed several weeks after the arrest.  “It is very difficult and inefficient to get a timely sample of blood for a drugged driving case,” stated Flannigan. “We are looking at other bodily fluids that are less invasive such as the saliva test, which a lot of states appear to be moving towards.”

State legislators have begun to take steps to incorporate a roadside saliva test into Marijuana based DUIs.  The bill just recently was passed by the House of Representatives.

Although the Bill is meant to address some of the concerns associated with blood tests, the 2017 National Highway Transit Safety Association (NHTSA) report to Congress on Marijuana based DUIs has found “that saliva does not appear to an an accurate and reliable predictor of impairment from THC.”  

Flannigan argues however that these tests are merely used to confirm drug use, which taken with the other observations of a DRE are useful in establishing a case for drugged driving.

“Blood and saliva tests are excellent at identifying the drug that is causing impairment, but there is not a correlation between blood or saliva concentration and drug impairment”, stated Dr. Marilyn Huestis, former Chief of Chemistry and Drug Metabolism at the National Institute of Drug Abuse Intramural Research Program. Her research documented that small amounts of THC can be detected in chronic frequent cannabis users up to 30 days after last use. “There is no blood THC cutoff concentration that documents marijuana impairment in occasional and frequent cannabis users”, “For the occasional user, THC is out of the blood in 6-8 hours, but with the frequent user, THC can be stored for longer periods of time in fat tissue.  Having THC in the blood in the occasional user means recent use, but in the chronic user, it may not represent recent cannabis use. For this reason, I feel it is important to document impairment by a trained police officer or other witness, and then test a biological fluid (either blood or preferably oral fluid or saliva, to indicate which drug is producing the impairment.”

Marijuana and Crash Risk

The 2017 NHTSA report found that there are contradictions in the science based studies that have evaluated marijuana use and the risk it may impose on being involved in a motor vehicle crash.  Some scientific reports have found “minimal or no effect on the likelihood of crash involvement, while others have estimated a doubling in the risk of crash involvement.”

Hansen has stated that these conflicting findings may be due to the reduced risk taking behavior that those under the influence of marijuana partake in when operating a motor vehicle.  “There is limited evidence on the crash risk of marijuana influenced individuals,” stated Hansen. “What has been found is that there is a difference in risk adversity, where with alcohol you see an increase and in marijuana you see a reduction.”

Due to the limited scientific evidence, NHTSA has acknowledged that there is no set standard for marijuana impaired driving and thus, the onus for arrests falls solely on the shoulders of law enforcement.  “In 1908 the Model T was released, in 1910 we had our first drunk driving studies, the first quantification of DUI a level was in 1927 and the first drunk meters were constructed in 1938,” stated Hansen. “However, with marijuana DUIs, we are currently stuck in the 1920s scientifically.”

1.  Never reply with a substantive response to the question of why you think you were pulled over:  A simple “I am not sure sir” is sufficient.
2. Make the officer’s job as easy as possible:  The less time an officer spends in your presence the better it is for both of you.  Have your license and insurance information ready, hand it to the officer as soon as he approaches the vehicle and keep the verbal exchange to a minimum.
3. Remember, everything you say is likely being recorded:  Most officers have body cams or microphones connected to their uniforms and can catch the entire interaction between the officer and the driver.

Interacting with an officer on the roadside can be uncomfortable.  Of course you want to be polite to the officer, who is doing their job.  However, it may not be advisable to turn this cooperation into an admission, which may negatively effect any defense one may have to the issuance of a Vermont traffic ticket.

The training required Attorney Chadwick to complete both a practical and written exam on teaching the principals of roadside DUI investigations by law enforcement.   “I am thrilled to have taken this course”, stated Attorney Chadwick while awaiting his flight home in Atlanta, Georgia.  “The training has given me further practical experience in evaluating DUI cases, and will go a long way in ensuring that my clients, who are facing a DUI in Vermont, will be best served in their pursuit of navigating the Vermont criminal justice system”

This recent certification furthers the field sobriety and DUI investigation practical student course which Attorney Chadwick completed in September of this year and allows him to give seminars to other practicing attorneys on the ins and outs of DUI investigation and the application of the Standardized Field Sobriety Tests (or SFSTs).  “The goal of any attorney should be to never stop learning”, stated Chadwick.  “Although I feel that this training gives me a wealth of knowledge in defending Vermont DUIs, I will continue to look for other ways to broaden my understanding on the complexities of Vermont DUI defense.

“The training I received is vital to my practice of Vermont DUI defense” stated Chadwick.  “By receiving the exact training law enforcement officers receive I am now able to better understand the nuances of the application of the field sobriety tests that may cause their application on the roadside to be questioned.”

Attorney Chadwick anticipates furthering his education in the near future, as he has been invited to attend the field sobriety instructor training this winter, which will allow him to apply for field instructor certification.  “Educating myself on the many facets of Vermont DUI defense has always been my long term goal” stated Chadwick.  “The more I understand the DUI investigation and where mistakes can be made, the better I can serve my clients in ensuring they receive the best defense possible”.

Defined as the “involuntary jerking of the eyes that occurs when eyes gaze to the side” the HGN has been validated as one of the most reliable indicators of driver impairment when compared with all the other field sobriety and investigative tests officers employ while on the roadside.

If HGN is conducted correctly a 2013 San Diego validation study has found that it can be 88% accurate in detecting that a motorists BAC is above .08. The findings in an HGN test alone can give an officer the probable cause they need to arrest a motorist and bring them back to the barracks where an evidentiary breath test is taken.

As is the case with all field sobriety tests however, the key determination in the HGN is if the test was in fact administered properly according to National Highway Safety Administration (NHTSA) standards.

As a certified HGN practitioner who has gone through the certification process of administering the HGN, I can say with conviction that the NHTSA requirements are difficult to administer correctly in a controlled classroom environment, let alone in the wide variety of environmental conditions that an officer would face when conducting an HGN test on the roadside.

Timing, position of the stimulus (object motorist is to follow with eyes), medical conditions (such as head injuries) and the surrounding environment are but a few of the many factors that can play a role in the accuracy of the HGN. If any of these are comprised by failing to follow NHTSA guidelines, the entire test and, in turn a significant portion of the DUI investigation can be compromised, leaving serious doubt as to whether the officer has the evidence necessary to charge a motorist with DUI.

According to the Valley News, there has been an expected dramatic surge in the number of vehicles on the road, including on I-89, which sees traffic counts of about 41,000 near the Vermont/New Hampshire state line on an average day.  This surge of traffic resulted in 100 motorists being issued tickets for speed violations and 8 for the use of hand held electronic devices during a joint task force of Vermont and New Hampshire Law Enforcement officers along the Connecticut river valley on Friday.

The interstate’s are customarily Vermont State Police turf.  Do not be surprised to see numerous green cruisers in the median along the highways this weekend.  Although safe driving is always the best defense to avoiding traffic tickets, in the event you find yourself with blue lights behind you, it is important to remember the following:

1. Be polite;
2. Be efficient in producing your license and insurance to the officer;
3. Do not interrogate the officer; and
4. Keep that PBA care in your pocket at all times and make no mention of it.

Safe travels.

Attorney Chadwick received a thorough overview in the 2015 NHTSA/IACP DRE Pre-School & DRE 7-Day training curriculum that officers attend nationwide. Emphasis was made on analyzing a DRE case file, to include, the DRE Face Sheet & DRE Narrative report, how to compare the two with one another and with the Drug Symptomology Chart, as well as emphasis on each specific step involved in a 12-step DRE evaluation. Time was also be spent covering the IACP’s rules and regulations that officers are required to follow in order to become certified and to recertify as a DRE.

“The training I received was essential in furthering my understanding of the science behind a Drug Recognition Evaluation and what errors officers make in conducting these evaluations”, stated Attorney Chadwick. “It is a training that anyone who is serious about defending DUIs in Vermont needs to take in order to best serve their clients”.

Following the DUI investigation and the receipt of a citation, which tells you the date and time of the initial hearing on a DUI, the case turns from an investigation, into a prosecution.  For Vermont DUIs, the initial hearing is termed as an arraignment, which essentially means that it is the starting point of where the police officer’s work concludes and the Vermont State’s attorney’s work begins.  This article will touch on the basics of the formal process and give defendants a general idea of what to expect while their Vermont DUI winds its way through the court system.

Arraignment

The arraignment is where the defendant and their attorney are provided with the initial paper work (i.e. evidence) that supports the charge.  Affidavits from police, criminal background checks of all witnesses and other supporting documents are customarily produced at this hearing.  This packet of information does not constitute all of the evidence that the prosecution may rely on, but it serves as a good starting point for a defendant to understand what facts are being alleged and by whom.

After having time to review this information, the defendant and his/her counsel will appear before the judge and enter their plea to the charge.  If a not-guilty plea is entered, the judge will set a time for the parties to return to court and may also issue conditions that the defendant will need to comply with during the pendency of the case.  These conditions can range from informing your attorney of a change in address and coming to court when your told to do so, to checking in on a daily basis to a local police station to be subject to a breathalyzer.  The severity of the condition will be heavily dependent on the defendant’s personal circumstances and their prior criminal history.

The Discovery Phase

The 60-90 days between hearings affords both sides to the case time to review the evidence and request that additional information be provided, such as police video tapes, expert reports and other evidence that either supports or refutes the allegations.  This is also the time that motions to suppress evidence or dismiss the case can be filed.  If a motion is filed, the Court can either rule based on the motion itself, or set the matter for a hearing.  If a hearing is set, this will likely push back the date of the calendar call or pre-trial conference until after the motion has been ruled on.

Pre-Trial/Calendar Call

After all legal issues are settled and, if the case has not been dismissed, the pre-trial/calendar call represents a chance for the state and defendant to come together to see if a resolution can be reached.  This hearing can last several hours as there are numerous cases that are heard during the same time block.   It is not an ideal situation for any defendant to be place in a crowded court room while they wait for their attorney to report to them the substance of their discussions with the State.

If it is clear however, that a deal will not be reached at this hearing, a lot of time can be saved if it is reported to the judge early on that the case should be scheduled for its next hearing.  This will allow the defendant to leave the courthouse and for discussions between the State and defense counsel to occur off the record at another time.

Final Jury Call/Final Calendar Call

This hearing, in theory, is the last chance for a defendant and the state to reach an agreement before a jury is drawn and a trial occurs.  In reality, given the court schedule and the backlog of cases waiting for trial, the first final jury call/final calendar call will likely not be the last chance, to settle a case before a jury is draw.  In similar fashion to the pre-trial conference/calendar call, a defendant’s case will be one of many heard that day and again may entail a lot of waiting while the state’s attorneys meet with defense attorneys and self-reporesented individual to discuss settlement.

Settlement or Trial

If the Vermont DUI case is not dismissed, there will come a time in the prosecution where  the defendant will need to choose between settling the case or  trial.  Regardless of what advice a Vermont DUI attorney gives, the ultimate choice on whether to settle or go to trial falls on the shoulders of the defendant.  Depending on the court calendar and the facts of the case, a defendant  may have up to a year before they are forced to make this decision.  However, when and what decision to make will fall solely on the individual facts of the case and the final determination by the defendant.

The Processing

Once arrested, a defendant will be brought back to the arresting agencies barracks, where they will be submitted to a lengthy processing.  It is at this stage where many officers will shore up the evidence in their case, and it is where many defendants, mostly due to their unfamiliarity with the process, will end up incriminating themselves and thus reducing or eliminating all together the potential legal defenses they may have to the charge.

Miranda Rights

The first step in the processing is for the officer to issue the all too famous Miranda warnings, informing the defendant of their rights prior to interrogating them.  To boil down the rights afforded to defendants pursuant to the landmark Miranda v. Arizona case of 1966, it was found that:

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination. Pp. 444-491.

Simply put, if a Defendant is taken into custody they do not need to answer questions and cannot be punished due to their exercising this right.

In most Vermont DUI-first offense cases, the defendant wishes to be cooperative because they think they can curry favor with the officer and maybe handed a break.  There is a difference between being polite and courteous to the officer and being cooperative.  Certainly officers deserve a defendant’s courtesy however, they do not deserve a defendant’s cooperation.  A simple, “I would like to exercise my right to remain silent sir” achieves both purposes after an officer reads Miranda and protects the Defendant from providing evidence that will affect the outcome of their case later on.

Implied Consent

Officers are required to read from a prepared statement a defendant’s implied consent rights under the Vermont DUI statute (Title 23).  These rights inform the defendant of their right to either refuse or submit to a breath test at the station and the consequences of each decision.  For most officers, the breath test is the defining evidence in a Vermont DUI investigation and thus choosing to submit or refuse to a datamaster test may be the biggest decision the defendant makes.

Exercise right to consult with an attorney

Before deciding to either take or refuse a breath test, a defendant has a right to consult with an attorney of their choosing or with an on call public defender.  CONSULTING WITH AN ATTORNEY PRIOR TO DECIDING ON WHETHER TO TAKE THE BREATH TEST IS CRUCIAL BE SURE TO EXERCISE THIS RIGHT!

An experienced attorney can go through the evidence that the officer currently has and can give sound advice as to whether the breath test may help or hurt the defendant in their defense of the charge and what risks are being run for either determination.  Further, the attorney can go back through the implied consent rights to ensure the defendant understands them fully so they can make an educated decision based on the entire picture.

Notice of Intent to Suspend 

If a defendant submits to the breath test and the reading is above a .08 of if the defendant refuses to submit to the test, the officer will issue defendant with a notice of intent to suspend.  This is a form that carries a white and yellow copy.  A DEFENDANT HAS 7 DAYS TO REQUEST a hearing on the license suspension.  If they do not, their right to operate a motor vehicle in Vermont will be suspended on a date certain that is defined in the notice.  It is important for a defendant to preserve their right to a hearing on the civil suspension and thus, sending in the request immediately after being released is a crucial element of the DUI process

Citation

After the processing is complete, an officer will issue a defendant a citation to appear in court.  This gives the date and time and location of where the initial court hearing will take place.  In many cases this arraignment is held during the middle of the working week and can pose significant issues to the defendant, especially if they live far from the courthouse.  Seeking a waiver of one’s personal appearance is not out of the question if the defendant engages an attorney prior to the arraignment date.  This attorney in many cases can seek court approval for the attorney to appear in defendant’s stead, thus relieving the defendant from taking a day off of work to make the trip for what is a relatively brief initial hearing.

In the next post, we will discuss the actual prosecution of the DUI case, the timelines associated with the court process and a discussion on what potential outcomes may arise based on the facts of the case.

The vast majority of motor vehicle stops in Vermont are related to speeding and minor traffic infractions. But once a motor vehicle stop has occurred, the police are only permitted to investigate and inquire about issues directly related to the reason for the stop. They are not allowed to detain you any longer than it takes for them to issue you the ticket.

Does this mean that, following a stop based upon a speeding infraction, an officer would be forced to ignore and walk away from the obvious open alcohol container, plainly visible illegal substances, or a driver who appeared visibly intoxicated? No! The driver or occupants would clearly be in more trouble. However, if the police make no such observations, they are not allowed to use this opportunity to further inquire about other potential criminal or wrongful conduct. This is an illegal expansion.

At Chadwick Law, we not only specialize in defending Vermont speeding tickets and Vermont traffic tickets, we specialize in challenging illegal expansions. As a motorist in Vermont, be aware of your rights. If you are pulled over related to a Vermont speeding ticket or Vermont traffic ticket, politely decline to engage in conversation of issues that are not related to the stop itself and decline any requested searches. The common result of challenging a case due to an officer’s illegal expansion of a stop is that the criminal charge is dismissed. Protect yourself with awareness.

Although the law is clear that for civil violations, officers may not detain motorists for a time that would exceed the normal time for issuing a traffic ticket, law enforcement continues to challenge this rule by attempting to expand the scope of their investigation when they claim to smell a strong odor of burnt marijuana.  However, some recent cases against search and seizure have arisen recently in Massachusetts, one most notably in      COMMONWEALTH vs. MATTHEW W. OVERMYER, which states “In sum, we are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine. In the absence of reliability, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana, whether burnt or unburnt.”

Thus, with the increasing number of drugged driving arrests occurring on Vermont roads, and the legalization of marijuana possession in the forefront of the Vermont legislature, it is reasonable to conclude that a substantial amount of grey area continues to exist in prosecuting such cases that can only be clarified through litigation in the Vermont County court system.

According to a report written by Bankrate.com a  single speeding ticket alone can carry with it between a 19-23% hike in insurance rates.   While a DUI carries with a 93% hike, while reckless driving such as texting while driving can bring with it rate increases as much as 82%.

What is even worse for those with less the pristine driving records is that if you add up a few of these violations, many insurance companies will refuse to even offer you insurance.

Based on the real and substantial consequences of even the most benign of traffic violations, it is important for motorists to calculate what the actual cost of that Vermont DUI, speeding ticket or reckless driving conviction could bring before determining whether or not it is worth the effort and expense of fighting it in the hopes of mitigating or eliminating the collateral consequences.

The long held basis for a lawful motor vehicle stop in Vermont is when an officer has a reasonable and specific suspicion that an operator is violating a traffic law.  During the day, when most motorists are traveling to and from work, Vermont officer’s will often let minor violations slide.  However, even a minor issue such as traveling 5mph over the speed limit or having a license plate light out can result in the blue lights being activated at night.

As a result, motorists should be especially mindful of their operation during the nighttime hours.  As, even if they are doing nothing else wrong besides the minor traffic violation, this can still lead to a hefty ticket and significant inconvenience as they attempt to navigate the nighttime roads throughout Vermont.