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.

Full Dockets Mean Less Court Availability

It is inevitable that the court dockets will be heavily burdened during the initial reopening period. Pre-Trial Hearings will all strain the court system, especially those that require an evidentiary hearing. The need for judges to hear cases will also strain the trial date availability. In most Vermont counties, there were only a few trial dates available each month prior to the Covid-19 crisis, however, with the current backlog, there will be a substantial increase in the volume of pending cases as well as those that are ready for trial.

What can be done to limit the strain on defendants facing Vermont criminal charges?

Although each criminal case has its unique facts and strategy, there are certain things may assist defendants in alleviating their personal strain, which in turn could alleviate the court systems.

1. Seek waivers of client’s appearances whenever possible: Most Vermont misdemeanor cases will require at least 3 and, depending on the complexity of the case and whether the case will be tried, upwards of 6 or more judicial hearings. Upon motion, judges have the discretion to waive individual defendants’ personal appearances in most criminal hearings, which can include jury trials and evidentiary hearings where the legal arguments are being made by counsel. See Vermont Rules of Criminal Procedure 43(c).
2. Seek State’s discovery through digital means: The State is required to produce all evidence which they intend to introduce at any trial to the defense. A prompt request for the state to provide discovery through digital means, which can include police video footage, can be requested prior to an arraignment under certain circumstances. The sooner this discovery can be obtained and reviewed, the more prepared the defense will be prior to the initial hearing. This preparation may allow the parties to discuss the case prior to the arraignment which, in some cases, can also involve settlement negotiations.
3. Conduct Efficient Investigations: With the initial discovery in hand, investigations into the facts can begin while leads are still fresh. The lapse of time can be a significant adversary in formulating a defense strategy. Memories fade and incident scenes may wash potential evidence away. In many cases, the State has already gathered the evidence that they feel if introduced, could secure a conviction. This can especially be true in Vermont traffic based offenses, such as DUI, Excessive Speed and Negligent Operation.

The courts will reopen and cases will be heard again. Although the exact date is to be determined, the court system will be churning along before too long. When it does, having the right efficiency plan in place, could make a huge difference in minimizing the time that will need to be expended in the overloaded Vermont criminal court system.

The Massachusetts Supreme Court decision in COMMONWEALTH V. GERHARD has now limited police officer’s ability to use the standardized field sobriety tests as evidence of drug impairment, tests which have long been validated to detect alcohol impairment.

“The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs.”

As has been litigated in Vermont Courts (and recently won by Attorney Evan Chadwick in a drugged driving case), a law enforcement officer who is not a certified Drug Recognition Expert should not be able to  testify as to their opinion of impairment when investigating an individual for DUI-Drugs .  The Gearhardt decision adds an extra layer of protection for these types of investigations by limiting what evidence can be presented on the roadside investigation.

“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”.

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.