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.

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.

Robert Olaf ANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) 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 (5). 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.