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.

With advanced technology that allows video conferencing and the accessibility of attorneys via a wide range of communication platforms such as email and social media, there is a better way to reduce or, even outright eliminate the Vermont criminal court calendar call. However, for us to accomplish this feat, lawyers, judges, and defendants need to buy into a couple of modern-day principals.

Defense Attorneys Should Have Social Media Accounts

One of the prevailing arguments for maintaining the Calendar Call is that it may be the first time that defense attorneys can meet with their clients to discuss the details of the case. With a little ingenuity, this argument should fail.

Indigent clients, who make up a large number of criminal cases, on court dockets, struggle to maintain reliable channels of communication. Often they switch cell phone numbers numerous times, or simply do not have a reliable phone that they can afford. This makes communication with defendants and their attorneys difficult, especially when it comes to notifying defendants of court dates and potential offers to resolve their cases. Often, Defendants will rely on public wi-fi to access social media messaging accounts such as Snapchat or Instagram to stay in communication.

To provide access to their clients, all defense attorneys, including public defender offices should have firm social media accounts that allow their clients to send them messages. It can be a more reliable way for basic information to be passed along and to be able to coordinate the handling of a case. Further, with video conferencing widely available for free, the face-to-face meeting can be completed remotely and effectively.

Public Defender Meeting Days

It is a valid argument that for certain cases, there is no substitute for in-person meetings between a defendant and their attorney. To address these needs, instead of gathering all of the defendants together at once and having them sit in crowded hallways for an afternoon or morning, public defenders’ offices could schedule meeting days at the Courthouse. Reaching out to individual clients (via social media messaging if necessary) and scheduling 30-minute blocks of time for them to meet with their attorney at the courthouse would greatly reduce the number of people milling around and would allow attorneys to more efficiently prepare each case.

Proactive Prosecution Meetings

If a defense attorney’s first conversation with the prosecutor is at the Calendar Call, neither party has effectively utilized the time between arraignment and calendar call. The most efficient way to move cases forward is to discuss the cases with prosecutors within 90 days of the arraignment. In many cases, this conversation will allow the parties to come to a resolution. In other cases, it will at least give each side an indication of where the parties stand.

Defense Attorneys and Prosecutors Should Report To Judge Via Teleconference or Email

If the attorneys have conducted their reviews of the evidence and have consulted with each other, it is easy for the parties to quickly report to the judge the status of the case without needing to do so in person. During the COVID-19 crisis, attorneys have issued joint reports to the judge in writing stating that the case is either proceeding to trial, settling or the parties are requesting additional time to conduct further discovery. If the case is settling the court can schedule a change of plea hearing by blocking off the requested amount of time (normally between 15 minutes to an hour depending on the severity of the charge).

If the case requires a judge’s input, the parties can appear via video or teleconference. If the defendant needs to be present they can also appear via video conference either in their location or at their attorney’s office. This can be scheduled for a specific block of time, which again reduces the number of people crowding the halls and courtrooms and will allow parties to conduct their business more efficiently, knowing what they need to prepare for and when, as opposed to jumping up in the courtroom to get the judge’s attention over the other attorneys.

The Calendar Call Can Be a Waste of Everyone’s Time

The shutdown of courts has opened our eyes. Courts can be more efficient. And, in the process, attorneys and clients can also be more efficient. The simple solution in a post-COVID-19 world is to take steps readily available to us to limit our need for mass court hearings. This will not only ensure competent representation of the defendant’s or state’s interest but also protect everyone from needlessly being exposed to unhealthy situations.

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.

Although Vermont courts are continuing to hear serious cases of domestic violence there appears to be a significant concern regarding the perpetration of ongoing abuse in cases that are deemed less serious, such as violations of relief from abuse orders. This has State’s Attorney’s concerned that these matters are not being addressed in a way that will deter further violations or additional acts of abuse.

Vermont Domestic Violence cases had seen an increase in reports prior to the coronavirus outbreak. Given the stress families are enduring during this time of uncertainty, it is being projected that the incident rate will continue to rise even further if law enforcement is not able to take proactive measures to get in front of potential acts of abuse before they occur. Defusing these stressful situations may be the best way to ensure that Vermonters are protected both from being a victim of domestic violence or being wrongfully charged of the crime when law enforcement take matters too far.

What is important to consider is that even if a suspect was given a citation for a court date that is now postponed, law enforcement have been tasked with reissuing criminal citations to all suspects that have already been charged. For a citation or summons to be effective law enforcement must come into personal contact with the suspect to hand deliver the citation. The only way to prevent this in-person interaction is for an attorney to accept service for their client.

A substantial law enforcement tactic is for officers to approach suspects when they least expect it. Engaging in these types of interactions often will induce a longer conversation that can lead to incriminating statements being made. Officers can use these statements, which are often recorded, to supplement their affidavits that they fill with the Court to support their issuance of criminal charges.

It is important, even in these difficult times, for attorneys to enter their appearance for a suspect well before the initial hearing in any Massachusetts or Vermont criminal proceeding. Early representation allows the attorney to drive a wedge between the suspect and law enforcement and assert a suspects 6th Amendment to Counsel

Chadwick, Spensley & Fox is available on an urgent basis for all its clients. If you are being contacted by the police visit the NEED HELP NOW page to be put into contact with one of our Vermont or Massachusetts attorneys.

It is very often a good idea for a defendant to take steps to address the perceived negative behavior related to their charge.  For example, if a defendant is charged with DUI, they should schedule an evaluation with a licenced drug and alcohol counselor (LADC) and adhere to any follow-up recommendations.  A certificate of participation or completion for this programming can be later obtained and presented to the judge or prosecutor. Typically there is similar programming available for issues like anger, substance abuse, safe parenting, domestic violence, unsafe driving etc.  

Importantly, such actions undertaken by a defendant cannot be the basis of admissible evidence against them to show that they more than likely engaged in the charged conduct.  Whether a defendant decides to ultimately admit the charged conduct or not, when they exhibit and demonstrate a proactive response to their own perceived unsafe behavior this will open the door to a negotiation and/ or sentencing that better considers their own needs.

If the judge assigns a defendant conditions of release these must be carefully followed or else attempts must be made to amend any conditions that are not appropriate.  Similarly, a defendant to a pending criminal case must avoid violating any applicable conditions of release, and avoid being charged for additional new criminal conduct.  An important goal for a defendant is to stay off the radar such that judges and prosecutors become more focused on other more serious or recent cases.

Criminal defendants should also avoid talking to coworkers, friends or casual acquaintances about their pending case.  Such sharing will typically only serve to complicate, and even worsen, the defendant’s overall situation. There may be times where it is appropriate to seek character references and the like, which can be provided to the judge and/ or prosecutor.  An experienced Vermont criminal lawyer can assist a defendant take stock and understand actions they might take to help themselves during the pendency of their criminal case.

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.”