According to the Vermont legislature – “In no event may a final hearing occur more than 42 days after the date of the alleged offense without the consent of the defendant or for good cause shown.”

In essence, this means that the state cannot push the final hearing on a civil trial back further than 42 days from the alleged incident without approval from the defendant or for good cause shown. “Good cause” is essentially a discretionary call by a judge, for example extending the hearing due to the arresting officer being at a training the day that the hearing was scheduled for. 

If this rule is violated, then it is the defendants right to argue for their civil suspension to be dismissed. 

Another option that the defendant has is to waive their 42 day rule at the preliminary hearing and combine the civil and criminal cases into one case, meaning that both matters would be heard at the same time instead of two separate cases. 

It is important to understand your rights following your DUI arrest in Vermont. If you request a hearing on the merits, and do not have a final hearing within 42 days, it is your right and the responsibility of your attorney to argue for a dismissal of the case pursuant to Vermont Supreme Court precedent.

All states except for 5 (Massachusetts, Michigan, Wisconsin, Tennessee, and Georgia) are part of the Driver’s License Compact. The idea behind this is that there is one license, one record, for all of these states. Unfortunately, it is not always that simple. The idea for these states is to treat violations from out of the state as if they happened in the violator’s home state. However, legal statutes are not identical from state to state and there can be some legal wiggle room depending on how the law matches up between states. Even worse, the operator could potentially receive double the fine. If the charge is treated as if it happened in the violator’s home state, both states have the power to levy fines, as well as license reinstatement fees.

New York 

If you are over 21 years old and are convicted of an alcohol or drug related driving offense in another state (or even Ontario or Quebec), you could get your driver’s license suspended for at least 90 days.  For non-alcohol/drug related driving offenses, New York does not record out of state violations, with the exception of criminal negligence, homicide, or assault with a motor vehicle that results in death. 

Massachusetts 

In Massachusetts, the courts could indefinitely suspend a driver’s license after receiving notice of an out-of-state DUI charge until the driver’s ability to operate a motor vehicle has been restored in the state or jurisdiction in charge of the DUI case. Similarly, for other charges such as gross negligence, the operator will receive a comparable punishment, however, certain criteria may not be identical between Massachusetts and Vermont, which could lead to grounds for dismissal in Massachusetts. 

Rhode Island

Rhode Island could suspend your license if prosecutors can prove that you were convicted of a DUI, not just charged. However, there are very specific parameters for a DUI in Rhode Island that are not exactly the same as those in Vermont or other states, which could help the operator’s case in Rhode Island. The same rules apply for gross negligence cases.

New Jersey

New Jersey drivers could see their license suspended if convicted of DUI or gross negligence in another state. The state treats convictions from other states essentially the same as being convicted within the state, as long as the statutes have relatively comparable statutes. 

Connecticut

Connecticut operates under very similar rules to New Jersey. If convicted in Vermont or another state of a DUI or gross negligence, Connecticut drivers could see their license suspended, as long as the parameters of conviction match up.

New Hampshire

Upon notification from Vermont of a DUI, New Hampshire could suspend your license. This goes for other traffic violations as well. For a DUI/DWI, the suspension would be at least 9 months. 

Maine

If convicted of a DUI in Vermont or other states, Maine will receive a notice of conviction. Once this notice is received, the operator’s license could be suspended based on their driving record in Maine. Additionally, gross negligence could also end in a suspended license depending on record and how the state statutes align.

It is important to understand your rights as an out of state driver if charged with a Vermont DUI. Understanding how a Vermont conviction can affect your out of state license is one of the most important pieces of navigating the Vermont criminal justice system in a way to ensure you receive the best, most well-informed path forward.

A Brief on Horizontal Gaze Nystagmus in Vermont DUI Investigations

What is Horizontal Gaze Nystagmus (HGN)?

The definition of nystagmus is a “rapid involuntary movement of the eyes.” This could be side to side, up and down, or circular movements of the eyes. This is due to brain disease or inner ear balance. Brain disease causes vertical nystagmus, while inner ear balance causes horizontal. 

Alcohol consumption, as well as other depressants and various types of drugs can also lead to nystagmus via preventing the brain from properly communicating with the eyes, causing horizontal nystagmus. The further the individual becomes impaired, the more violent the eyes will jerk. 

How Do Vermont Law Enforcement Use HGN?

The HGN test is one of the three parts of the Standard Field Sobriety Tests System. Criminal justice students in Vermont are taught that the HGN test is the most reliable field sobriety test.

Officers in Vermont administer the test in three parts. They always begin with the left eye. The first thing that they test for is smoothness in movement. As the eye moves from side to side following the object that it is prompted to follow, does it move smoothly or jerk? The next thing tested for is nystagmus at the end of the movement. When the eyes are moved all the way to one side and held in position for four seconds do they begin to jerk at all? Finally, They test to see if the eyes begin to jerk before they reach 45 degrees in movement. 

For each eye, there are 3 points allotted in the test, totalling 6 points. Officers are taught that if the suspect fails 4 or more of these points, they can tell with 77% certainty that their blood alcohol percentage is above 0.10%. 

How You May Limit the Relevance of HGN in a VT DUI Trial

Before an officer may go ahead with an HGN test, they must verify that the subject’s eyes track stimulus together, and that their pupils are the same size. If they are not, this could be a sign of medical disorder or head injury. 

If your case goes to trial, it is important for your attorney to file a motion in limine to exclude all evidence regarding the HGN test. This is essentially a motion to exclude certain evidence from being presented to a jury as it is irrelevant, untrustworthy, or more based on prejudice than probate. 

Additionally, the state should not be allowed, based on legal precedent, to enter an HGN test into evidence if they have not given notice of an expert witness testimony on the subject. If the evidence were allowed to be presented in court, the witness should be required to relate the complicated science behind the test to the jury, who’s members most likely don’t have advanced scientific backgrounds. Vermont trial courts have decided that this expert testimony must occur before HGN evidence is allowed to be brought forward to the jury.

However, the state rarely has the time, resources, or will to pay for an expert witness sufficient enough to allow for HGN evidence to be used in trial. A motion in limine will most likely be successful in blocking this test from following you into the courtroom. It is of the utmost importance that you contact your attorney as soon as you receive the citation, as they can help prevent you from loss or suspension of licensure, large fines or possibly jail time. Preventing HGN evidence from being used in your trial could just make the difference.

Pre-Operational

Before operating a lidar, the officer or operator should first check to make sure each component is with/on the device, as well as in place. The operator should then inspect the device for external damage, missing components, or any damage that could prevent the lidar from functioning accurately and properly. 

Additionally, the operator must carry out accuracy tests prior to using the device in the field. This includes:

• Internal accuracy check – Light segment and indicators test. The lidar operator performs a light test to ensure all light segments and indicators are functioning properly.  
• Internal circuit check 
• External accuracy check – alignment
• Range accuracy

If there is any issue that could harm permanence, the lidar needs to be immediately removed from operation in the field, and repaired before returning.

Field Operation

Once the pre-operational checks have been made, the lidar device should be transported in the officer’s vehicle. There should be some sort of holster to keep the device in place when the vehicle is in motion, or another method to keep it in place. This method should not obstruct the vision of the officer while driving, limit his or her movement in or exiting the vehicle, and should allow for the device to be easily accessed. 

The device should also be secure enough that injury would not occur from the device in the instance of a crash, or driving in pursuit. It should never be placed in the driver’s lap, in the passenger seat, or anywhere other than the saddle bags in the case of motorcycle use. 

The operator also must develop a tracking history when attempting to use the lidar as a viable piece of evidence in the Vermont court of law. There are several aspects to tracking history, such as:

• Visual observation – The officer must identify the target, estimate its speed, estimate the distance to the target, and observe the environment.
• Audio confirmation – The officer must listen to the pitch of the audio from the lidar and make sure it is giving off a target acquisition tone. 
• Unit confirmation – The lidar must give off steady or multiple readouts that are consistent, and match with a relative degree of similarity, the officers estimation. 

Factors Affecting Lidar Operations

1. Radio Frequency Interference (RFI) – One way this occurs is through the transmitters of law enforcement radios, walkie-talkies, or business radios. To avoid this, abstain from transmitting radio signals in or around the vehicle while trying to take lidar readings. Another variable that can cause frequency interference is light devices. Certain equipment used for lighting such as mercury vapor, neon, or fluorescent lights can cause interference and the officer should avoid taking readings around these lights. A third variable is electrical lines, which can also cause interference, and the officer should choose a site to operate in that is free from this kind of interference. 
2. Panning – when the laser is swung quickly past a stationary object, causing an error reading.
3. Sweep effect – If the operator is striking the target vehicle with the laser from an angle, he or she may strike the back first and then the front, or vice versa. This creates an inaccurate reading, either faster or slower depending on which part of the vehicle was struck first. The officer needs to make sure they maintain a steady aiming point on the target. 
4. Windshield obstruction – The windshield can limit the range of the device, but will not limit the accuracy. 
5. Weather – Weather conditions such as rain, smoke, fog, and dust clouds can limit the range of the lidar. 
6. Low Voltage – If the operator experiences a low voltage incident with the device it should be removed from the field, as this can create unreliable and inaccurate readings. 
7. Cosine Effect – The larger the angle the lidar is being operated from in comparison to the target vehicle, the lower the speed reading is in comparison to reality. This always works in the motorists favor. For instance someone who is traveling at 70 miles per hour would be perceived to be traveling at 65.78 miles per hour from a 20 degree angle. 

Legal Considerations

Lidar is used by law enforcement in Vermont as a form of evidence at Judicial Bureau hearings. For this evidence to be admissible in court, there must be sufficient reason to believe that the lidar reading was an accurate representation of the speed of the target vehicle, at the time of the alleged violation. Therefore the basic accuracy questions must be asked. Do we know that the operating principles of the lidar were valid? Was it working properly at the time of the alleged violation? Did the operator have the proper qualifications and perform properly? Do we know that the vehicle accused was the vehicle that the reading came from?

It is important to understand how lidar devices are used in the field properly, so that you can challenge the validity of the reading if you believe it was wrong, or you believe the officer was not operating the device properly. Do not allow an allegation backed by false operation to harm your driving record, or cost you money. All speeding tickets are viable to be challenged, and challenging the accuracy of the lidar as well as how it was operated/tested on the day of the allegation is an effective way to clear yourself of any charges or fines. 

History

In 1960, Theodore H. Maiman announced the build of a red coherent light pushed from a ruby crystal, which was the first laser. Nearly 30 years later in 1989, the first law enforcement speed measurement laser device was patented. 

Lidar & Laser

Lidar is an acronym. It stands for “light detection and ranging.” Laser is also an acronym, standing for “light amplification by Stimulated Emission of Radiation. Lidar devices are designed to measure speed through energy produced through a laser device. The term lidar is used when describing a device used for down the road speed measurement, currently only designed for stationary use. 

The Science

The technology behind the laser is fairly complicated. When put in its most simple form, laser energy is created by energizing a lassing medium, a piece of active material, which has been placed in a sandwich between mirrors. 

The atoms of the medium are placed into an excited state from an outside energy source. They store some of this energy, which allows them to release some of their already stored energy. This releases as light energy, resulting in amplification of incoming light. 

The two mirrors are placed at an exact distance apart from one another. This creates a standing wave bouncing back and forth from one mirror to the other. This allows the light waves to become lined up with one another. One of the mirrors is designed to allow some of this light to escape, and pass through as a laser beam. 

Lasers can be produced from several different active materials. Some examples of different types of lasers include the semiconductor, gas, chemical, excimer, and free electron. There are also many different types of optical resonator devices. Some of the typical ones include:

• Semi-Conductor Lasers – unlimited uses in high technology applications such as fiber optics and laser devices
• Gas Lasers – popular applications include the entertainment industry, light shows and movies.
• Chemical Lasers – used for internal confinement and military applications
• Excimer Laser – used in the medical field for surgical procedures
• Free Electron Laser – develop powerful light sources for defense, industry and research

How Does it Work?

The lidar employs a “time of flight” method to measure the speed of the desired vehicle. It does this by shooting out a short burst of lasers at the vehicle, all measuring the range of the vehicle from the lidar. The device then adds these measurements together, seeing how fast the vehicle was either getting closer or moving further away, calculating speed. Think of this as a basic math problem in high school: speed = distance/time. If the driver is moving away from the operator it presents the speed value as a negative, and if the driver is moving towards the operator it is presented as a positive value. 

The lidar carries three distinguishable characteristics similar to those of other forms of electromagnetic energy. These are:

• Signal speed – Lidar lasers travel at the speed of light, which is generally accepted to be 186,282 miles per second. 
• Wavelength – “The distance between two points in a periodic wave that have the same phase.” The wavelength of a lidar is about 904-905 nanometers.
• Frequency – A measurement of cycles per second. The frequency of lidar is about 330 terahertz.

Lidar also carries the same behaviors as other forms of electromagnetic energy, meaning that it can be reflected, refracted, or absorbed. 

It is important to understand how lidar works, and understand your rights that go along with it. Do not allow a false allegation to harm your driving record, cost you money, or even place you in prison. Speeding violations are all viable to be taken to court in Vermont at the discretion of the alleged violator, who stands to gain from having the punishment reduced or revoked and challenging the accuracy of the Lidar is one such strategy to attack the validity of the State’s case.