Defending a DUI / DWI
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vermony dwi

Driving under the influence (DUI) in Vermont

Under Vermont law Title 23, V.S.A § 1201, it is illegal to operate a vehicle on a highway under the influence of intoxicating liquor or other substance. A person is considered intoxicated when either (1) their blood alcohol concentration is .08 or more, or (2) their BAC is less than .08 but yet they are still under the influence of intoxicating liquor, drugs, or a combination and that they are under the influence to a degree which renders the person “incapable of driving safely.” V.S.A § 1201(3).

What this means is that no matter how safely you are operating a vehicle, if your blood alcohol content is .08 or greater you are intoxicated within the meaning of the law; however the opposite is not true. Even if your BAC is .07 or less, you can still be convicted of DWI in Vermont if the state can prove that you were intoxicated to the point that you could not safely operate the vehicle. Indeed, it is written right into the law that it is impermissible to presume someone was not intoxicated merely because their BAC was less than .08:

If the person's alcohol concentration at that time was less than 0.08, such fact shall not give rise to any presumption or permissive inference that the person was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor.  23, V.S.A § 1204(1).

vermont traffic ticket lawyer

Areas of defense against a Vermont DUI charge

The law also provides for statutory affirmative defenses to a Vermont DUI charge, in either (1) the defendant had no intention of placing the vehicle in motion; and (2) had not placed the vehicle in motion at a time when he or she was under the influence of intoxicating liquor or other substance.

There are other defenses which are elementary in nature. For example, the defendant must have been operating a vehicle on a “highway.” For a roadway to be a highway within the meaning of Vermont law Title 23, V.S.A § 4(13), it must be:

·        Open to public or general circulation of vehicles, even temporarily;

·        Be a way laid out under authority of law; however

·        Does not include driveways that serve as single or 2 family residences.  Title 23, V.S.A § 1200(7)

Another defense is whether the defendant was operating a vehicle within the meaning of Vermont Motor Vehicle Law. Under the Title 23, V.S.A § 4(21), a motor vehicle is defined as all vehicles “propelled or drawn by power other than muscular power,” as well as all terrain vehicles but only when operated on a highway. Vehicles for purposes of Vermont DUI law are NOT:

·        Farm tractors

·        Trains / vehicles running only upon stationary tracks or rails

·        Motorized highway building equipment

·        Road making appliances

·        Snowmobiles (except when operated on a highway)

·        Tracked vehicles

·        Electric personal assistive mobility devices

Chemical test for determining blood alcohol level

The reason a person can legally drive on a Vermont highway is because they have a licensed issued to them from the State of Vermont or another state. When the government licenses you to do something, the license comes with certain restrictions and requirements which you accept upon receiving the license. If you fail to adhere to the licensing requirements the issuing agency can take sanctions against your license, including fines, revocations and suspensions.

In the context of a Vermont driver’s license, upon receipt of same or driving here in Vermont with an out of state license, you are deemed to have given your consent for a law enforcement officer to demand a chemical blood alcohol content test. However, the consent deeming statute is even broader than merely those who have a license, but covers everyone that operates or attempts to operate a vehicle on a Vermont highway:

Implied consent. Every person who operates, attempts to operate, or is in actual physical control of any vehicle on a highway in this state is deemed to have given consent to an evidentiary test of that person's breath for the purpose of determining the person's alcohol concentration or the presence of other drug in the blood. The test shall be administered at the direction of a law enforcement officer. 23 V.S.A. § 1202.

Further, if either breath testing equipment is not available, or the person is unable to give a sufficient breath sample, then the person is deemed to have consented to providing a blood sample instead. Refusal to provide a sample may be introduced into evidence as a subsequent DWI trial.


Rights prior to providing breath sample

For the results of the chemical test to be admissible in court, the state must administer the test in accordance with Vermont law. Failure to do so will result in the chemical test being suppressed from evidence at trial.

Right to consult with an attorney prior to providing a chemical test

A person who is requested to provide a breath sample has a right to consult with an attorney prior to deciding whether to submit to such a test. Under 23 V.S.A. 1202(g), the office of the defender general must provide 24 hour coverage to assure that adequate legal services are available to persons. Within 30 minutes from the time of initial attempt to contact an attorney the person must make their decision and failure to do so results in a deeming of a refusal, whether or not an actual consultation took place.

Right to statutory warnings

At the time the test is requested, the person must also be informed that:

·        Vermont law authorizes a law enforcement officer to request the test, and that

·         If reused, the person’s license of privilege will be suspended for at least 6 months

·        If taken and the result is positive, the person will be subject to criminal charges and a 90 day license suspension

·        That the person has a right, before submitting, to consult with an attorney and that they have 30 minutes from the time of the initial attempt to contact to decide whether or not to take the chemical test whether or not there was an actual consultation

·        That the person has a right to additional tests made by someone of their own choosing and at their own expense, and must be told of the location of facilities available for this

·        That upon submission to a test administered with an infrared breath testing device, that at their request they can have a second infrared test administered immediately after receiving the results of the first test

·        That a refusal is admissible into evidence at trial

·        That the person can be charged with criminal refusal if:

o       They have a previous Vermont DUI conviction

o       There was an accident involving serious bodily injury or death

Right to qualified persons only administering the test

Only those persons certified by the Vermont criminal justice training council to operate the breath testing equipment may administer the test. If a blood sample is drawn, it must be done so only by a physician, licensed nurse, medical technician, physician's assistant, medical technologist, or laboratory assistant acting at the request of a law enforcement officer.

If a videotape is made of any or all portions of the offense and testing it must be made available to the defendant within 10 days and cannot be destroyed by the state until at least 90 days after the case is resolved. 

Civil suspension procedure for refusing to submit to a chemical test

If a person fails to submit to a chemical test they have in essence violated a requirement to maintain that license and therefore the Vermont Department of Motor Vehicles can suspend the person’s license and driving privileges. However before they can do the Vermont DMV must hold a hearing to determine whether the person refused the chemical test within the meaning of the law.

The person’s license gets suspended in what is called a “summary proceeding,” in that minimal evidence is required in order for the DMV to suspend privileges. All that is required is that the law enforcement officer provides to the Vermont Department of Motor Vehicles a sworn statement that:

·        The officer is a certified law enforcement officer

·        That the officer was certified to operate the testing equipment

·        That the officer had reasonable grounds to believe that the person was operating in violation of 23 V.S.A. 1201

·        That the person was informed of their rights

·        That the person refused

·        That the officer confirmed the person’s correct mailing address

Concurrent with providing the DMV the above affidavit, the officer must serve a notice of intent to suspend on the person on behalf of the Vermont DMV. Upon receipt of said notice the person’s license will be suspended 11 days after unless they request a hearing. This request must be done within 7 days of receipt of the notice of intent to suspend.

The refusal hearing takes place in the same court of which the criminal matter is being heard. The preliminary refusal hearing must be calendared within 21 days of the date of the offense, and is often scheduled on the first appearance date for the DWI case. If the issues of the propriety of the refusal cannot be resolved at the preliminary hearing, the matter is set down for a final hearing within 21 days of the preliminary hearing. The issues at a refusal hearing are framed as follows:

·        Whether the officer had reason to believe that the person was operating / attempting to operate in violation of Vermont’s DUI laws

·        Whether the person was informed of their rights and consequences of refusal prior to being requested to provide a chemical test

·        Whether the person refused

A person is entitled to all testimony, videos, written statements, and material presented at the refusal hearing by the state. Notwithstanding this, the prosecution is precluded from using the defendant’s testimony in evidence at trial on the underlying DWI. An appeal of a decision adverse to the defendant can be appealed to the Supreme Court of Vermont, however the suspension shall not be stayed unless it can be shown that the movant has a high likelihood of prevailing on appeal.

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