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.

Most insurance companies place drivers in “risk tiers”.  This determination is based on a variety of factors such as driving and accident history, location of residence, age and even credit history.  In the mandatory disclosures it is revealed that “at renewal we review your payment, claim, driving and policy change history to determine if we will adjust your risk tier.”  

Driver history checks however, do not only occur during renewal periods.  The mandatory disclosure further explains that “once we’ve determined your tier, we look at additional information to refine and finalize your rate.”  

This leaves open the possibility for insurance companies to check driving histories at different times during a policy period pursuant to their right to “refine” risk tiers, which they can use as a basis to increase rates.

A Right to Gradually Rise

Although it is clear from the disclosure that “rate[s] will generally change when you “move to a new location, have an accident [or] receive a violation…” what is not clear is exactly how much a motorist’s insurance rates will be impacted.

A closer look at the disclosure reveals that insurance companies may not raise rates significantly at first.  Instead, they reserve the right to “gradually increase rates over time”.  

Certainly there are benefits to gradual increases however, if the rate increase continues to rise, when does it actually stops rising? This is a question with no answer on the consumer disclosure.

Lives can be busy, hectic and sometimes chaotic.  Most of the time, we just want things to work, without us expending too much effort in understanding the details.  Although understandable, the value of understanding your rights as a consumer and the rights reserved by car insurance companies may come in handy if you are ever issued a Vermont moving violation.

How to Avoid the Moving Violation

The key to any traffic ticket defense is to articulate a basis for a moving violation to be avoided. Driving history, conduct of the individual on the roadside and the age of the driver are all key factors. When negotiating with an officer it is important to point these factors out at the onset of negotiations. This should put the officer at ease knowing that they are dealing with someone who is reasonable and understands the importance of safe driving.

After the illustration of mitigating factors, it is equally important to determine whether there are any legal defenses to the charge. Radar calibration, other motorists on the road, and the proper issuance of the ticket are all important factors to consider. In some instances, it is advisable to point these issues out in negotiations, while in other cases it is best to keep these defenses close to the vest in the event the case has to go to trial.

Ultimately, these defenses can be used as leverage with the officer in order to negotiate a better deal or, if no deal can be reached, to present the defense to the judge to allow them to determine whether the clear and convincing standard of proof has been met.

No driver wants to have a list of Vermont moving violations following them around. The ultimate goal in presenting a traffic ticket defense is to leave all avenues open in the hope that a result can be reached that will not result in the insurance company being able to assess additional fees.

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.

The operation had two cruisers setup in the breakdown lane, one with its emergency lights activated to simulate a traffic stop.  In two hours, police initiated 17 stops for alleged violations.   Sgt. Turner of the Vermont State police stated that the area in which the stops were made along route 7 was a three lane highway, which gave cars the ability to move into the passing lane.

It is curious however, as to whether these stops were in fact a violation of the statute, as Route 7 is not a four lane highway.  In order to uphold the charge in court, the officer would have to show that the operator was not proceeding with caution when they passed the officer, certainly a subjective standard that is up for individual interpretation.

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.

There are certain areas on Vermont highways that are easier to navigate then others.   When it comes to Vermont Interstates I-91 and I-89, the degree of difficulty can be significantly diminished, especially during low traffic times.  As a result, many motorists may feel that they can travel at speeds much faster then the posted speed limit.  Although traveling a few miles over the posted speed limit may land a motorist a traffic ticket, there are times that the speed alleged is excessively over the posted speed limit, which can lead to a Vermont Excessive Speed criminal charge.  One area on I-89 in particular has been deemed a “hotspot” for excessive speed charges, begging the question of what factors are leading to more criminal charges in this stretch of highway then any other in Vermont.

According to a report by Vermont Public Radio, one Vermont State Trooper has arrested several motorists traveling at speeds in excess of 100 mph in a 10 mile stretch on I-89 between the Royalton Sharon town lines.  For those who have traveled this stretch of road before, it is easy to see why more motorists would feel comfortable traveling at high speeds then on other Vermont highways.

It can be easy to forget the speed you are traveling.  In certain areas, it can become even easier to allow this lack of attention to turn into a dangerous situation that may result in a criminal charge.  Understanding where these situations may be more likely to occur may not only prevent them from happening, but in the unfortunate event that one is arrested for a Vermont excessive speed charge, it can be a useful tool in rationalizing some of the behavior in order to best argue for leniency when the case is brought to court.

So what knowledge is needed to best prepare for a traffic hearing in a Vermont Traffic Court?  That heavily depends on the officer and the judge who will serve as the other parties in the matter.  Certain officers and judge’s rely on specific documentation a client can provide to assist them in determining what type of offer they are willing to give in a traffic ticket case.  A motorist’s driving record from the their home state  is a good first step in achieving the necessary documentation.  Some States, such as New York, (https://dmv.ny.gov/dmv-records/get-my-own-driving-record-abstract) allow driver’s to quickly secure their DMV record online. Other States ,such as New Jersey, require a more extensive process that can take up to 14 days to complete.

Beyond a DMV driving abstract there are other discoverable materials that the officer may be required to produce if requested by the defense prior to the hearing taking place. Requesting evidence such as the cruiser dash cam, body-camera, radar calibration certificates and other pieces of evidence relevant to the charge to only provide the defense with additional evidence to present their case, but also may allow for further leverage in plea negotiations if the requests are not fulfilled in a timely manner.

There is no way to guarantee a result in a Vermont traffic ticket case.  However, by preparing the case properly  and presenting the best facts possible both to the officer and, if need be, the judge, a motorist is putting their best case forward and increasing the likelihood of a favorable result in their Vermont traffic ticket case.

1. They begged me to not write them a ticket:  Being pulled over by an officer can be a stressful situation.  The officer, who has written hundreds if not thousands of these tickets, knows that this interaction may be less then cordial.  However, when they are forced to defend themselves because a motorist is pleading with them not to write them a ticket, it puts them in a very difficult situation.  Thus, in response to the begging, a law enforcement officer may just put on their professional face and go through the motions of writing the ticket to avoid excessive contact with the motorist.  Tip: Take your medicine on the roadside, be polite, accept the ticket and then see what can be done to reduce or dismiss the ticket at a later time.
2. Asking to see the radar:  An officer is not obligated to show a motorist their radar gun at the roadside during a Vermont speeding ticket stop.  This would prolong the stop and put the officer and motorist at further risk.  Especially on the highway, but also on winding Vermont roads, officers do not want to be exposed to oncoming traffic for any longer then they have to.  Requesting to look at the radar may only put the officer on the defensive, which may hurt your chances of catching a break later on.  Tip: If you feel the radar was inaccurate, save the argument for the courtroom, not the roadside.
3. Aggressively denying that you were speeding:  If an officer is pulling you over, its because they believe that they have reason to do so.  If they are pulling you over for speeding, it is nearly a certainty that the officer has a reasonable belief that you were in fact speeding.  99% of Vermont law enforcement officers are good people, performing a tough job to the best of their ability.  Thus, if a motorist sits on the roadside and vehemently denies that they were speeding, this will not help their chances, as an officer may take it as a statement against their professionalism without just cause.  Instead, to protect your rights, it is better to not answer at all or to simply state that you were not sure how fast you were traveling.  Tip:  By the time the officer goes back to his cruiser after gathering your identification documents, it is likely that they have already made up their mind as to whether they will be writing you a ticket.  Do not expect that you will get a break by making your case on the roadside.

The issuance of a Vermont traffic ticket is only the start of the legal process if a motorist chooses to contest the charge.  Thus, it is important to not paint yourself in a corner by performing acts that are contrary to resolving your case.  The above three examples are just a few of the acts motorists have committed that have effected their chance are receiving a favorable disposition to their case.

The vast majority of motor vehicle stops in Vermont are related to speeding and minor traffic infractions. But once a motor vehicle stop has occurred, the police are only permitted to investigate and inquire about issues directly related to the reason for the stop. They are not allowed to detain you any longer than it takes for them to issue you the ticket.

Does this mean that, following a stop based upon a speeding infraction, an officer would be forced to ignore and walk away from the obvious open alcohol container, plainly visible illegal substances, or a driver who appeared visibly intoxicated? No! The driver or occupants would clearly be in more trouble. However, if the police make no such observations, they are not allowed to use this opportunity to further inquire about other potential criminal or wrongful conduct. This is an illegal expansion.

At Chadwick Law, we not only specialize in defending Vermont speeding tickets and Vermont traffic tickets, we specialize in challenging illegal expansions. As a motorist in Vermont, be aware of your rights. If you are pulled over related to a Vermont speeding ticket or Vermont traffic ticket, politely decline to engage in conversation of issues that are not related to the stop itself and decline any requested searches. The common result of challenging a case due to an officer’s illegal expansion of a stop is that the criminal charge is dismissed. Protect yourself with awareness.

It is important to note however, that regardless of whether points transfer, the most important question to those living outside the State of Vermont is whether the violation itself transfers.  The violation (defined by a code) is what carries with it the potential for increased insurance rates, which as posted previously can cause motorists thousands of dollars in hiked premiums over the coming years.

What insurance companies are looking for when they check a motorist’s driving record is whether the violations themselves carry with them an indication that they fall under a category of “moving infractions”.  This means that the violation charged was the direct result of the manner in which an operator drove their motor vehicle.  Speeding violations are the first that come to mind.  However, there are other violations such as running a red-light, failure to yield and driving too fast for conditions which carry the same connotation as speed does in the eyes of insurance companies.

As a result, the overall motivation for any operator looking to contest their Vermont traffic ticket is to avoid as much of the “moving violation” indication on their driving record as possible.  This will minimize the damage of a driving record check and will ensure that an out-of-state motorist will not be hit as severely or at all, when their insurance company checks up on the driving status of an individual driver.

Being a member of the Police Benevolent Association is a great way to show your support for law enforcement and the difficult job they perform on a daily basis.  However, in the State of Vermont, having a PBA card is not a free pass to getting out of a speeding ticket.  In fact, it is a fast track to offending an officer on the roadside and decreasing your likelihood that the officer will be willing to give you a break.

Traveling throughout the state  handing traffic tickets it impossible to count the number of times I have spoken to a police officer who has mentioned that the driver they pulled over pulled out a PBA card in an attempt to get them to let them off on the roadside without a ticket.  In several cases the officer was so offended that what was originally going to be a warning turned into nasty pink ticket because of the driver’s mindset that they should not be issued a ticket because of their connections in another state.  “It offends my professionalism” I can recall one officer stating to me while discussing a potential resolution of a speeding ticket in Windham County.

Because you have friends or family  who are law enforcement officer or you are a law enforcement officer yourself, does allow you to drive with relative impunity in the State of Vermont.  So next time you are pulled over, it is better to be polite to the officer and keep that PBA card deep inside your pocket.  This, in the long run, will be the best move you make if you want a favorable outcome for your Vermont traffic ticket.

Its bad enough for a motorist to be put in handcuffs after being charged with excessive speed, a criminal offense that carries up to 90 days in prison and a suspension of one’s license.  However, what more and more motorists are seeing besides the citation to appear in a Vermont court, is that they are also facing a substantial civil infraction for the same offense, a penalty that could result in 8 or more points on one’s driving license and a fine nearing or exceeding $1,000.

There is a method of thinking behind law enforcements issuance of both the civil and criminal violations and it takes some significant digging to figure our exactly what they are looking for with regards to a resolution of the cases.  However, in many cases, prosecutors take a one, or the other mentality, where they are satisfied with a motorist pleading to one of the charges in exchange for them dismissing the other.  However, this determination if fact-specific and varies from case to case depending on a wide range of factors, such as one’s driving history, how they handled their interaction with police as well as other factors such as prior criminal convictions.

Thus, it is extremely important with excessive speed criminal charges and the accompanying civil charge, to contest them both so that a motorist can preserve their rights to negotiate a favorable deal at a later time once all the facts come to light.

Excessive Speed criminal charges in Vermont are no joke.  They come with serious financial penalties and the risk of having a criminal conviction on a motorists’ record for the rest of their life.  Thus, it is important to set forth a plan on how to deal with these charges early in the prosecution of the charge.  It may just set the motorist on a path far less detrimental then if they just succumb to law enforcement’s suggested punishment.

According to a report written by Bankrate.com a  single speeding ticket alone can carry with it between a 19-23% hike in insurance rates.   While a DUI carries with a 93% hike, while reckless driving such as texting while driving can bring with it rate increases as much as 82%.

What is even worse for those with less the pristine driving records is that if you add up a few of these violations, many insurance companies will refuse to even offer you insurance.

Based on the real and substantial consequences of even the most benign of traffic violations, it is important for motorists to calculate what the actual cost of that Vermont DUI, speeding ticket or reckless driving conviction could bring before determining whether or not it is worth the effort and expense of fighting it in the hopes of mitigating or eliminating the collateral consequences.

Some of the evidence officers will look for is as follows:

1.  The length of any skid marks to give an indication of how fast the vehicle was moving before the accident;
2. The condition of the vehicles tires.  Bald tires along can result in a traffic ticket if the officer feels the driver was negligent in not installing sufficient tires on their car for the driving conditions;
3. The difficulty of the road.  Did this accident occur on a windy tight road, or a wide straight road such as Route 7 or Interstate 89 or 91?
4. Witness statements.  Did anyone else see the accident occur or the manner of operation leading up to the accident?  Keep in mind here, that if witness observation is the sole basis of the Vermont traffic ticket, the officer will need to provide the witness at the hearing, which is rare in Vermont Judicial Bureau proceedings.

Keep in mind all of the above when venturing out into the snow this winter.  Also keep in mind that in Vermont it assumed that any accident, was a result of driving too fast for the conditions or driving recklessly unless their is proof to refute this assumption and thus, extreme care is needed in order to avoid the tickets or criminal citations that can add insult to an already injurious situation.

1)  The driver must have no other violations in the State of Vermont;

2)  The violation must be relatively minor in nature (i.e. a 2 point speeding violation, failure to use turn signal etc.);

3)  The driving conduct cannot include any kind of accident;

4)  The driver must have been polite and able to acknowledge their conduct, either through their lawyer admitting guilt or through the driver’s own admission.

If the driver meets the following criteria a police officer can agree to dismiss the ticket “with prejudice”.  The officer will conduct a motor vehicle check of the driver in 2 years and if the check comes back clean, with no further violations, the ticket will remain dismissed.  However, if the driver picks up another moving violation in the State of Vermont, the officer can reissue the ticket and the driver must then appear in court to answer to the charge.

Although Vermont traffic ticket probation is a rare occurrence, it may give certain drivers the relief they need to avoid the many financial ramifications that come with a Vermont traffic ticket, beyond what the fine imposes.

The process in defending your Vermont CDL or traffic ticket can be multi-faceted depending on the resolution that is reached at each step of the process.   In sum, the more times you ask for a review of a judgment, the more formal the process gets.

The initial hearing: Here is where the record is made, where an initial argument is heard by an assistant judge and is the first place where those facing a traffic infraction can get the result they are hoping for.

These hearings are governed by the Vermont Rules of Small Claims Procedure, a summary procedure to resolve disputes of $5,000 or less.  In an effort to keep these hearings as cost effective as possible, there are numerous exceptions to the Vermont Rules of Evidence that allow Defendants to introduce hearsay evidence that is customarily inadmissible in more formal court proceedings such as statements of third parties, pictures, business records etc…

The initial hearing is where most cases are resolved either by negotiations or through the summary trial procedure.  These hearings are recorded so as to preserve the record in the event an appeal is taken

Appeal to District Court:  If a case is resolved in a fashion not to the Defendant’s liking, they can appeal the decision to a Vermont District Court Judge.  There are certain procedures which must be followed and certain documents that must be filed within a 30 day time period in order for a judge to hear the case on appeal.  In a direct appeal, the Court will review the record and evidence presented at the initial hearing and will issue an order either affirming or overturning the lower court’s decision.  The Court will schedule a time for oral argument to be made unless both side agree to submit the case solely on the record presented.

Option for Jury Trial:  If a defendant desires they can demand a jury trial on their appeal.  This process opens up further avenues to contest the allegations based on legal or procedural grounds that are not afforded at the initial hearing.  Motions to suppress or dismiss may be filed with the consent of the district court judge and may be argued prior to the jury hearing the case.  This may also open up further ways to resolve the case through negotiations that were not afforded at the initial case hearing.

The bottom line is that for many drivers facing a Vermont CDL or traffic ticket, there may be several ways in which they can fight a ticket, which opens up many more ways to reach a resolution that meets both their short and long term goals.

1)  Do not make sudden movements while waiting for the officer to approach your window:  Although these movements may seem innocent enough to you, such as shuffling around in your glove box to look for your insurance papers, these movements can make an officer uneasy when approaching the car.  An uneasy officer is a grumpy officer, which is not a good start to the initial interaction.

2)  Do not open the window just a crack so you can pass out your license and registration.  Hiding something?  An officer certainly will think so if you open the window just enough to pass out your documents.  This suspicion could rise into something far more serious if an officer thinks they detect something else, such as the smell of alcohol or marijuana.  If you have nothing to hide, show it by opening the window 100%.

3)  Don’t ignore the officer’s initial greeting:  Saying nothing when an officer comes to your vehicle and greets you is a big no-no.  You don’t have to openly confess to committing a traffic violation, but you certainly can say hello and ask the officer how their day is, a sure-fire way to start your interaction off on the right foot and to put the officer at ease in figuring out how to deal with you.

4) Don’t argue the facts of the stop.  Although the officer may in theory be wrong, the roadside is not the place to plead your case, it is a time to show professionalism and courtesy.  Arguing the merits will increase the likelihood of a ticket.  Also, keep in mind that the officer has some discretion in determining the fine, a way to ensure they do not cut you a financial break is to make a legal argument on the side of the road as to why the stop was unjustified.

5)  Don’t tip your hand as to your intent to challenge the ticket:  Want a way for the officer to remember you?  Tell them that you will see them in Court, which is exactly what you don’t want to happen.  An officer that does not show up for a ticket cannot prosecute it, which means a victory for you.  Telling them on the roadside that you intend to challenge it, will make them much more likely to appear 30-90 days down the road when the Vermont Judicial Bureau sets the matter for a hearing.

What is most curious about many of these tickets is that law enforcement often will base the ticket on the mere fact that an accident took place, with no other witnesses providing testimony of what factors played a role.  These “driving too fast for conditions” tickets carry with them a substantial fine as well as several points on one’s license.

The law which officers rely on can be found in 23 VSA 1081(a) which states:

No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions, having regard for the actual and potential hazards then existing. In every event speed shall be controlled as necessary to avoid colliding with any person, vehicle or other object on or adjacent to the highway.

This law is extremely broad and leaves the interpretation of it up to the officer who comes upon the accident.  As a result, their impression can be attacked at a traffic ticket hearing especially what evidence they are relying on in making the determination that a violation occurred.

As in many cases along Vermont roads, minor accidents occur even when a motorist is taking all necessary precautions.  If there is not enough evidence to support the Vermont traffic ticket, then you have a good chance at convincing a Vermont Judicial Bureau Judge that the ticket holds no merit and should be dismissed.

This means that in the first two weeks of November alone, over 70 tickets have been issued as to the ban, which carry with it a $162 fine.  The law currently does not provide for points to be issued on an individual’s driver’s license.

For those still unfamiliar with the law, it can be summed up with a few simple words:  If your electronic handheld device is not hands-free then it is illegal in the State of Vermont to use it while driving a motor vehicle.

Although the fine alone may not scare many individuals into keeping off their phones while driving, if the device played a role in an accident, the penalties can be far worse.

Numerous cases have been brought into criminal court when an individual has been injured as a result of a driver being distracted by an electronic device while driving.  Depending on the severity of the injury, the potential penalty for such an offense can travel up as high as 15 years behind bars.

With the new law, which allows Vermont officers to pull over motorists merely because they see a driver with a device in their hand, the risk far outweighs the reward.