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.

The announcement by the Federal Government that they intend to take cannabis off its schedule 1 classification seems logical. Considering that cannabis legalization has found its way to the desk of many governors, it was only a matter of time until marijuana, that has long shared the same classification as heroin and LSD, be classified as less serious, although still federally illegal.

Vermont passed a legalization law in 2022, becoming the 11th state to do so. Cannabis retail stores have been popping up all over the State ever since, allowing anyone over the age of 21 the ability to purchase a multitude of cannabis based products. Despite the ease of posession, the concern for the impairing effect that marijuana can have on operators of motor vehicles, continues to be a significant concern for law enforcement.

Driving While High Is as Illegal as Driving While Drunk

The DUI statute for driving while under the influence of marijuana carries the same maximum penalty ( 2 years in jail) as the DUI-alcohol statute. For a law enforcement officer to charge someone with a weed DUI, they must show that the operator was “under the influence to the slightest degree”. Any level of impairment is sufficient to meet the statutory requirements and subject the driver to a mandatory 90-day license suspension and a criminal conviction on your record.

How Does Law Enforcement Prove Impairment?

There is no per-se limit on cannabis DUIs. This differs from the .08 limit in alcohol DUIs. In response, marijuana DUI investigation focuses more on an officer’s observations and specialized training in determining impairment. Although the classic Cheech and Chong scene, where the officer approaches the two stoners who are lost in their van in a giant plume of smoke, such apparent evidence of consumption is not needed for an officer to reach an arrest decision.

Request or Demand for Blood.

An officer can also request that a suspect submit to a blood test in order to determine the presence of cannabis in their system. The Implied Consent laws for refusing to submit to a blood test are the same as an alcohol test refusal (six-month suspension for a first offense, with elevated penalties for subsequent offenses).

Depending on the circumstances of the arrest, an officer may also be able to apply for a search warrant from a judge if suspect consent is not obtained. This process is often initiated in cases where a serious injury or death has occurred, or if the suspect has prior DUI (alcohol or cannabis) convictions.

Just Because You Can Doesn’t Mean You Should

Despite cannabis being available for legal purchase throughout many Vermont towns, this permitted consumption does not extend to the road. So when you purchase that pack of joints from your neighborhood weed dealer keep in mind, that when it comes to driving while impaired, Vermont law enforcement will not look the other way just because you chose weed over booze.

The foregoing content is for informational purposes only and should not be considered legal advice. Readers with specific legal questions should consult with their private attorney.

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.

How Does a Judge or Jury Decide Liability?

12 VSA § 1036 states that “[C]ontributory negligence shall not bar recovery in an action by any plaintiff, or his or her legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if the negligence was not greater than the causal total negligence of the defendant or defendants,…”

To provide context to this, consider if a Jury finds that one driver was 60 percent liable for a car accident, while the other driver was found to be 40 percent at fault. If the damages sustained by the 40 percent liable party were found to be $100,000, the end result would be an award in that party’s favor of $20,000 (the difference between 60k and 40k or 60% and 40%).

How Does a Traffic Ticket or Criminal Citation Play Into This Calculation

In most instances, a personal injury case will take a back seat to any criminal prosecution and will only be heard after the criminal case has been resolved. This procedure is based on a criminal defendant’s 5th Amendment right to remain silent, which they do not enjoy in a personal injury action.

Certainly, the outcome of the criminal case will play a role in liability and, in some cases, may be fatal to a claim.

A traffic infraction does not enjoy such protections and, in most cases, will be resolved before the personal injury case. This legal realm will provide a bit of a preview for the larger PI case and is an important step in evaluating liability. If a defendant is found not guilty of their traffic violation, this can help bolster the case that the other party is liable for the accident.

Even if the driver is found guilty of the offense, this may not, in all cases lead to a liability determination. A judge or jury would still need to evaluate all of the other factors surrounding the accident before they dole out the percentage they feel each party was responsible for in creating the circumstances surrounding the accident.

Just Because You’re Charged Does Not Mean You Are Liable

Evaluating the strength of a personal injury claim in Vermont can be a complicated matter when there are companion criminal or traffic ticket charges. However, each case is unique and must be reviewed independently of others to truly make such a determination. The result of this review may just surprise you when it is ultimately determined who remains at fault for this unfortunate event.

This content is for informational purposes only and should not be considered legal advice. Readers who have question about their own legal matter should consult with their personal 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.

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.

It is very common that drivers operating or waiting in a designated turn-only lane will NOT put on their turn signals, perhaps assuming that their intention to turn is clear enough. However, as established in recent Vermont Supreme Court Decision State v. Cook (google “2017-368 Vermont”), the failure to utilize your turn signal in a designated turn-only lane will now be considered adequate grounds for a police officer to pull someone over and ticket them. The Vermont Supreme Court has not previously decided this precise issue, with past decisions indicating that an actual turn signal may not be necessary when the lane designation clearly allows only one legal maneuver.

Some American States do not require a turn signal in a turn-only lane, but Vermont and many other States do. Police officers in Vermont are allowed by law to perform a traffic stop whenever they have a reasonable and articulable suspicion of a Vermont traffic violation, like speeding, or a crime, such as driving under the influence. The Vermont Supreme Court reached its recent decision in Cook primarily based upon the specific wording of Vermont’s turn-signal statute. 

The Vermont Supreme Court also cited safety issues to support the decision in Cook, reasoning for example that other drivers stopped at an intersection may not be able to identify that an opposing or nearby lane is a turn-only lane. One might speculate that snowstorms and low visibility situations may also worsen a driver’s ability to perceive the designated direction of a nearby lane. 

I do not expect that this type of traffic stop will become common in Vermont. However, if a Vermont police officer decides to perform a traffic stop based upon a driver’s failure to activate their turn signal within a designated turn-only lane, that traffic stop will be upheld and the turn-signal violation is ticketable.

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.”

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.

“Reviewing every aspect of the blood draw and analysis is a key component to defending DUI offenses”, stated Attorney Chadwick.  “The science and law behind these analysis are constantly evolving and we, as attorneys, need to stay ahead of the curve so that we can better understand the science that supports and/or undermines the reliability of these tests.”

For more information on the training received by Attorney Chadwick, click HERE.

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.