Download this document in MS Word 97 format

NO. 160. AN ACT RELATING TO CRIMINAL AND CIVIL PROCEDURES INVOLVING ALCOHOL AND MOTOR VEHICLE VIOLATIONS.

(S.324)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 1 V.S.A. § 551 is amended to read:

§ 551. CONCURRENT JURISDICTION RESERVED

When, pursuant to article one, section eight, clause seventeen of the Constitution of the United States, consent to purchase is given and exclusive jurisdiction ceded to the United States in respect to and over any lands within this state which shall be acquired by the United States for the purposes described in such clause of the Constitution, such jurisdiction shall continue so long as the lands are held and occupied by the United States for public purposes; but concurrent jurisdiction is reserved for the execution upon such lands of all process, civil or criminal, issued by the courts of the state and not incompatible with the cession, and for the enforcement of state law in the federal enclave along the border of Canada and Vermont by law enforcement officers certified under section 2358 of Title 20. The deed or other conveyance of such land to the United States shall contain a description of such lands by metes and bounds and shall be recorded in the town clerk's office of the town in which such lands lie or an accurate map or plan and description by metes and bounds of such lands shall be filed in such clerk's office.

Sec. 2. 3 V.S.A. § 163 is amended to read:

§ 163. JUVENILE COURT DIVERSION PROJECT

* * *

(e) The requirements of subdivisions (c)(1), (2), (3), and (4) of this section shall not apply to mandatory conditions imposed by the diversion board, following an adjudication of a civil violation pursuant to section 656 of Title 7. Subdivision (c)(5) of this section shall not restrict the diversion board from notifying the commissioner of motor vehicles that a person has failed to timely complete imposed conditions. The diversion board may disclose all relevant information about a person in an administrative or judicial proceeding related to whether a suspension is proper.

(f) Subject to the approval of the attorney general, the Vermont association of court diversion programs may develop and administer programs to assist persons under this section charged with delinquent, criminal and civil offenses.

Sec. 3. 3 V.S.A. § 164 is amended to read:

§ 164. ADULT COURT DIVERSION PROJECT

* * *

(i) The requirements of subdivisions (c)(1), (2), (3), and (4) of this section shall not apply to mandatory conditions imposed by the diversion board following an adjudication of a civil violation pursuant to section 656 of Title 7. Subdivision (c)(5) of this section shall not restrict the diversion board from notifying the commissioner of motor vehicles that a person has failed to timely complete imposed conditions. The diversion board may disclose all relevant information about a person in an administrative or judicial proceeding related to whether a suspension is proper.

(j) Subject to the approval of the attorney general, the Vermont association of court diversion programs may develop and administer programs to assist persons under this section charged with delinquent, criminal and civil offenses.

Sec. 4. 4 V.S.A. § 437 is amended to read:

§ 437. CIVIL JURISDICTION OF DISTRICT COURT

The district court shall have jurisdiction of the following actions:

* * *

(8) Automobile forfeiture and immobilization proceedings under chapters 9 and 13 of Title 23.

Sec. 5. REPEAL

4 V.S.A. § 1101 is repealed.

Sec. 6. 4 V.S.A. § 1102 is amended to read:

§ 1102. JUDICIAL BUREAU; JURISDICTION

(a) A judicial bureau is created within the judicial branch under the supervision of the supreme court.

(b) The judicial bureau shall have jurisdiction of the following matters:

(1) traffic violations alleged to have been committed on or after July 1, 1990;

(2) civil ordinance violations alleged to have been committed on or after July 1, 1994;

(3) minor fish and wildlife violations alleged to have been committed on or after September 1, 1996;

(4) *[for]* violations of 7 V.S.A. § 1005(a), relating to possession of tobacco products by a person less than 18 years of age; *[and]*

(5) *[for]* violations of 7 V.S.A. § 1007, relating to furnishing tobacco products to a person under the age of 18 years*[.]* ;

(6) violations of 24 V.S.A. § 2201, relating to littering and illegal dumping;

(7) violations of 7 V.S.A. § 656, relating to illegal possession of alcoholic beverages.

(c) The judicial bureau shall not have jurisdiction over municipal parking violations.

(d) Three hearing officers appointed by the court administrator shall determine waiver penalties to be imposed for violations within the judicial bureau’s jurisdiction, except that municipalities shall adopt full and waiver penalties for civil ordinance violations pursuant to section 1979 of Title 24. For purposes of municipal violations, the issuing law enforcement officer shall indicate the appropriate full and waiver penalty on the complaint.

Sec. 7. 4 V.S.A. § 1105 is amended to read:

§ 1105. ANSWER TO COMPLAINT; DEFAULT

(a) A violation shall be charged upon a summons and complaint form approved and distributed by the court administrator. The complaint shall be signed by the issuing officer or by the state's attorney. The original shall be filed with the judicial bureau, a copy shall be retained by the issuing officer or state's attorney and two copies shall be given to the defendant. The complaint shall include a statement of rights, instructions, notice that a defendant may admit, not contest, or deny a violation, and other notices as the court administrator deems appropriate. The court administrator, in consultation with appropriate law enforcement agencies, may approve a single form for charging all violations, or may approve two or more forms as necessary to administer the operations of the judicial bureau.

(b) A person who is charged with a violation shall have 20 days from the date the complaint is issued to admit or deny the allegations or to state that he or she does not contest the allegations in the complaint.

*[(b)]*(c) A person who admits or does not contest the allegations may so indicate and sign the complaint. The bureau shall accept the admission or statement that the allegations are not contested and accept payment of the waiver penalty. *[(c)]*(d) If the person sends in the amount of the waiver penalty without signing the complaint, the bureau shall accept the payment indicating that payment was made and that the allegations were not contested. *[(d)]*(e) A person who denies the allegations may so indicate and sign the complaint. Upon receipt, the bureau shall schedule a hearing. *[(e)]*(f) If a person fails to appear or answer a complaint the bureau shall enter a default judgment against the person. The bureau shall mail a notice to the person that a default judgment has been entered. A default judgment may be set aside by the hearing officer for good cause shown.

Sec. 8. 7 V.S.A. § 656 is added to read:

§ 656. MINORS MISREPRESENTING AGE, PROCURING, POSSESSING, OR CONSUMING LIQUORS; FIRST OFFENSE; CIVIL VIOLATION

(a) A minor 16 years of age or older shall not:

(1) falsely represent his or her age for the purpose of procuring or attempting to procure malt or vinous beverages or spirituous liquor from any licensee, state liquor agency, or other person or persons;

(2) possess malt or vinous beverages or spirituous liquor for the purpose of consumption by himself or herself or other minors, except in the regular performance of duties as an employee of a licensee licensed to sell alcoholic liquor; or

(3) consume malt or vinous beverages or spirituous liquors. A violation of this subdivision may be prosecuted in a jurisdiction where the minor has consumed malt or vinous beverages or spirituous liquors, or in a jurisdiction where the indicators of consumption are observed.

(b) A law enforcement officer shall issue a summons and complaint to the judicial bureau pursuant to chapter 29 of Title 4 for a violation of this section if the person has not previously been adjudicated in violation of this section or convicted of violating section 657 of this title.

(c) A person who violates this section commits a civil violation and shall be subject to a civil penalty of not more than $300.00, and shall complete the teen alcohol safety program pursuant to subsection (f) of this section. The state may obtain a violation under this section or a conviction under section 657 of this title, but not both.

(d) If a person fails to pay a penalty imposed under this section by the time ordered, the judicial bureau shall notify the commissioner of motor vehicles, who shall suspend the person’s operator’s license and privilege to operate a motor vehicle until payment is made.

(e) Upon adjudicating a person in violation of this section, the judicial bureau shall notify the commissioner of motor vehicles, who shall maintain a record of all such adjudications which shall be separate from the registry maintained by the department for motor vehicle driving records. The identities of persons in the registry shall only be revealed to a law enforcement officer determining whether the person has previously violated this section.

(f) Upon adjudicating a person in violation of this section, the judicial bureau shall notify the teen alcohol safety program of the diversion board in the county where the violation occurred. Pursuant to the teen alcohol safety program, the diversion board shall impose appropriate conditions on the person, which shall include a condition requiring satisfactory completion of alcohol screening and, if deemed necessary, alcohol counseling and therapy. The diversion board may also impose conditions requiring the person to complete community service projects and educational programs related to alcohol. The person shall complete all conditions at his or her own expense. The diversion board shall allow a person at least 60 days to complete required conditions. If a person does not satisfactorily complete alcohol screening by a licensed professional and, if deemed necessary, alcohol counseling and therapy, the diversion board shall notify the commissioner of motor vehicles, who shall suspend the person’s operator’s license and privilege to operate a motor vehicle for a period of up to 90 days, or until notice of compliance is received from the diversion board, whichever occurs first. If a person does not timely complete other required conditions of diversion, the diversion board shall notify the commissioner of motor vehicles, who shall suspend the person’s operator’s license and privilege to operate a motor vehicle for 30 days. A person aggrieved by a decision of the diversion board or alcohol counselor may seek review of that decision pursuant to Rule 75 of the Vermont Rules of Civil Procedure.

(g) The state’s attorney may dismiss without prejudice a violation brought under this section.

Sec. 9. 7 V.S.A. § 657 is amended to read:

§ 657. MINORS MISREPRESENTING AGE OR PROCURING OR POSSESSING LIQUORS; ALCOHOL AND DRIVING EDUCATION

(a) A minor *[who]* shall not:

(1) falsely represent his or her age for the purpose of procuring *[or who procures]* or attempting to procure malt or vinous beverages or spirituous liquor from any licensee, state liquor agency, or other person or persons; or *[who possesses]*

(2) possess malt or vinous beverages or spirituous liquor for the purpose of consumption by himself or herself or other minors, except in the regular performance of duties as an employee of a licensee licensed to sell alcoholic liquor*[,]* ; or

(3) consume malt or vinous beverages or spirituous liquors. A violation of this subdivision may be prosecuted in a jurisdiction where the minor has consumed malt or vinous beverages or spirituous liquors, or in a jurisdiction where the indicators of consumption are observed.

(b) A law enforcement officer shall issue a citation for a violation of this section if a person has been previously adjudicated in violation of this section or section 656 of this title.

(c) After the issuing officer issues a summons and complaint to the judicial bureau for a first offense pursuant to section 656 of this title, the state’s attorney may withdraw the complaint filed with the judicial bureau and file an information charging a violation of this section in district court. The state may obtain a conviction under either this section or section 656 of this title, but not both.

(d) A person who violates this section:

(1) shall be fined not more than *[$500.00]* $600.00 or imprisoned not more than *[thirty]* 30 days, or both; and

(2) if the person has previously been convicted of violating this section or adjudicated in violation of section 656 of this title, the person’s operating license, nonresident operating privilege or the privilege of an unlicensed person to operate a motor vehicle shall be suspended for 120 days.

*[(b)]*(e) The state's attorney *[may]* shall require as a condition of diversion that:

(1) a person who is charged with a violation of this section who holds a license to operate a motor vehicle *[shall voluntarily]*, and who has previously been convicted of violating this section or adjudicated in violation of section 656 of this title, relinquish the license for a period of 60 days; and

(2) attend an alcohol and driving program at the person's own expense.

*[(c)]*(f) A person who is convicted of violating this section who holds a license to operate a motor vehicle shall, as a condition of probation, be required to complete an alcohol and driving program at the person's own expense. *[(d)]*(g) The alcohol and driving program shall be administered by the office of alcohol and drug abuse programs and shall take into consideration the needs of minors.

(h) The state’s attorney may dismiss without prejudice an action brought under this section, and may file a civil violation in the judicial bureau.

Sec. 10. 8 V.S.A. § 4674 is amended to read:

§ 4674. CONVICTIONS

(a) The commissioner may by rule specify motor vehicle and criminal violations, conviction of any of which may be used as a basis for a surcharge.

(b) Notwithstanding subsection (a) of this section, only those motor vehicle violations that occurred during the experience period may be used as a basis for a surcharge.

(c) An adjudication under section 656 of Title 7 may not be used as a basis for a surcharge.

Sec. 11. REPEAL

10 V.S.A. § 4573 is repealed.

Sec 12. 20 V.S.A. § 2222 is added to read:

§ 2222. FEDERAL LAW ENFORCEMENT OFFICERS; POWER OF ARREST FOR VERMONT CRIMES

(a) For purposes of this section, "a certified federal law enforcement officer" means a federal law enforcement officer who:

(1) is employed as a law enforcement officer of the federal government as:

(A) a special agent, border patrol agent or immigration inspector of the Immigration and Naturalization Service, U.S. Department of Justice; or

(B) an officer or inspector of the U.S. Customs Service of the Department of the Treasury; and

(2) has satisfactorily completed a course of study in Vermont laws and criminal procedures approved by the Vermont criminal justice training council, at the expense of the officer’s agency;

(3) has been certified by the commissioner of public safety pursuant to subsection (b) of this section; and

(4) has taken an oath administered by the commissioner of the department of public safety or by the commissioner’s designee to uphold the constitution of the state of Vermont.

(b) The executive director of the criminal justice training council shall certify a federal law enforcement officer who applies for certification if the officer satisfies the employment and study requirements listed in subsection (a) of this section. A certification under this subsection shall automatically terminate immediately upon the officer’s suspension or termination of employment from the federal agency in which he or she was employed at the time the certification occurred.

(c) A certified federal law enforcement officer is authorized to make an arrest pursuant to Rule 3 of the Vermont Rules of Criminal Procedure for violation of Vermont laws anywhere within the state if the officer determines that it is necessary to do any of the following:

(1) Protect an individual in the presence of the officer from the imminent infliction of serious bodily injury.

(2) Provide immediate assistance to an individual who has suffered or is threatened with serious bodily injury.

(3) Prevent the escape of any individual whom the officer reasonably believes has committed a crime in the presence of the officer.

(4) Prevent the escape of any individual whom the officer reasonably believes has committed a felony under Vermont law.

(d) A certified federal law enforcement officer who makes an arrest under this section shall report the arrest, without delay, to the nearest Vermont state police barracks.

(e) A certified federal law enforcement officer who makes an arrest under the authority of this section shall have the same immunity from liability that a state or municipal law enforcement officer has under the laws of this state.

(f) This section is not intended to limit existing authority of federal officers under federal law or to interfere with the performance of federal duties by federal officers.

Sec. 13. 23 V.S.A. § 676 is amended to read:

§ 676. OPERATION AFTER SUSPENSION, REVOCATION OR REFUSAL--CIVIL VIOLATION

* * *

(c) For purposes of establishing the state’s case-in-chief against a person accused of violating this section, the judicial bureau shall accept as evidence an affidavit from an employee of the agency of transportation stating that the person’s operator’s license or privilege to operate was suspended or revoked on the date of the offense, and the reason or reasons for the suspension or revocation. The admitted affidavit shall establish a permissive inference that the person was under suspension or had his or her license revoked on the dates and time periods set forth in the affidavit. The judicial bureau shall not require a certified copy of the person’s motor vehicle record from the department of motor vehicles to establish the permissive inference.

Sec. 14. 23 V.S.A. § 801 is amended to read:

§ 801. PROOF OF FINANCIAL RESPONSIBILITY REQUIRED

(a) The commissioner shall require proof of financial responsibility to satisfy any claim for damages, by reason of personal injury to or the death of any person, of at least $25,000.00 for one person and $50,000.00 for two or more persons killed or injured and $10,000.00 for damages to property in any one accident, as follows:

(1) From a person who is convicted of any of the following violations of this title:

(A) Death resulting from:

(i) Careless and negligent operation of a motor vehicle, or

(ii) Reckless driving of a motor vehicle.

(B) *[Operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor or drugs]* Any violation of section 1201 of this title or for any suspension pursuant to section 1205 of this title;

(C) Failing to immediately stop and render such assistance as may be reasonably necessary following an accident resulting in injury to any person or property, other than the vehicle then under his or her control;

(D) Operating, taking, using or removing a motor vehicle without the consent of the owner;

(E) Operating a motor vehicle after suspension, revocation or refusal of a license, in violation of section 674 of this title;

(F) Operating without financial responsibility;

(G) Any moving violation as defined in section 4 of this title if the person has five points assessed against the person’s license at the time the moving violation occurs. At the time a ticket or a citation for a moving violation is issued, the law enforcement officer shall give the defendant an insurance verification certificate, which shall not be an SR-22 certificate. The defendant shall complete the certificate and mail or deliver it to the commissioner within 21 days of being issued the ticket or citation. The commissioner shall prescribe the form of the insurance verification certificate and administer the insurance verification process by promulgating rules and may, pursuant to chapter 25 of Title 3, promulgate rules to administer the insurance verification process.

(H) The provisions of subdivisions (a)(1)(A), and (C) through (a)(1)(E) and (G) of this section shall not apply to an operator furnishing the commissioner with satisfactory proof that a standard provisions automobile liability insurance policy, issued by an insurance company authorized to transact business in this state insuring the operator against public liability and property damage, in the amounts required under this section with respect to proof of financial responsibility, was in effect at the time of the violation. Nor shall these provisions apply if the operator was a nonresident, holding a valid license issued by the state of his or her residence, at the time of the violation, and satisfactory proof, in the form of a certificate issued by an insurance company authorized to transact business in the state of his or her residence, and accompanied by a power of attorney authorizing the commissioner to accept service on its behalf, of notice or process in any action arising out of the violation, certifying that insurance covering the legal liability of the operator to satisfy any claim or claims for damage to person or property, in an amount equal to the amounts required under this section with respect to proof of financial responsibility was in effect at the time of the violation.

* * *

Sec. 15. 23 V.S.A. § 1201(f) is added to read:

(f) For purposes of this section, if the state has established a prima facie case with respect to the element of operation, the defendant may assert as an affirmative defense, to be proven by clear and convincing evidence, that the person was not in actual physical control of the vehicle because the person:

(1) had no intention of operating the vehicle; and

(2) had not in fact operated the vehicle in violation of subsection (a) of this section.

Sec. 16. 23 V.S.A. § 1202(a)(2) is amended to read:

(2) Blood test. If breath testing equipment is not reasonably available or if the officer has reason to believe that the person is unable to give a sufficient sample of breath for testing or if the law enforcement officer has reasonable grounds to believe that the person is under the influence of a drug other than alcohol, the person is deemed to have given consent to the taking of an evidentiary sample of blood. If in the officer's opinion the person is incapable of decision or unconscious or dead, it is deemed that the person's consent is given and a sample of blood shall be taken.

Sec. 17. 23 V.S.A. § 1203 is amended to read:

§ 1203. ADMINISTRATION OF TESTS; RETENTION OF TEST AND VIDEOTAPE

* * *

(h) A Vermont law enforcement officer shall have a right to request a breath or blood sample in an adjoining state or country under this section unless prohibited by the law of the other state or country. If the law in an adjoining state or country *[authorizes]* does not prohibit an officer acting under this section *[to take]* from taking a breath or blood sample in its jurisdiction, evidence of such sample shall not be excluded in the courts of this state solely on the basis that the test was taken outside the state.

* * *

(j) A videotape made of the alleged offense and subsequent processing may be erased or destroyed by the law enforcement agency no earlier than 90 days after final judgment, or, if no civil or criminal action is filed, no earlier than 90 days after the date the videotape was made.

(k) A copy of a videotape made of the alleged offense shall be provided to the defendant within ten days after the defendant requests the copy and pays a $15.00 fee for its reproduction. No fee shall be charged to a defendant whom the court has determined to be indigent.

Sec. 18. 23 V.S.A. § 1205 is amended to read:

§ 1205. CIVIL SUSPENSION; SUMMARY PROCEDURE

* * *

(h) Final hearing.

* * *

(2) No less than seven days before the final hearing, and subject to the requirements of District Court Civil Rule 11, the defendant shall provide to the state and file with the court a list of the issues (limited to the issues set forth in this subsection) that the defendant intends to raise. Only evidence that is relevant to an issue listed by the defendant may be raised by the defendant at the final hearing. The defendant shall not be permitted to raise any other evidence at the final hearing, and all other evidence shall be inadmissible.

* * *

(p) Suspensions to run concurrently. Suspensions imposed under this section or any comparable statute of any other jurisdiction and sections 1206 and 1208 of this title or any comparable statutes of any other jurisdiction or any *[other]* suspension resulting from a conviction for a violation of section 1091 of this title *[for]* from the same incident shall run concurrently and a person shall receive credit for any elapsed period of a suspension served in Vermont against a later suspension imposed in this state. In order for suspension credit to be available against a later suspension, the suspension issued under this section must appear and remain on the individual's motor vehicle record.

* * *

(t) For a first offense, the time limits set forth in subsections (g) and (h) of this section are directive only, and shall not be interpreted by the court to be mandatory or jurisdictional.

(u) In any proceeding under this section, for cause shown, a party’s chemist may be allowed to testify by telephone in lieu of a personal appearance.

Sec. 19. 23 V.S.A. § 1206 is amended to read:

§ 1206. SUSPENSION OF LICENSE FOR DRIVING WHILE UNDER INFLUENCE, REINSTATEMENT

(a) First conviction. *[Upon]* Except as otherwise provided, upon conviction of a person for violating a provision of section 1201 of this title, or upon final determination of an appeal, the court shall forward the conviction report forthwith to the commissioner of motor vehicles. The commissioner shall immediately suspend the person's operating license, or nonresident operating privilege, or the privilege of an unlicensed operator to operate a vehicle for a period of 90 days and until the defendant complies with section 1209a of this title.

(b) Extended suspension. In cases resulting in a fatality, the period of suspension shall be one year and until the defendant complies with section 1209a of this title.

(c) Upon conviction of a person for violating a provision of subsection 1201(b) or (c) of this title, or upon final determination of an appeal, the court shall forward the conviction report forthwith to the commissioner of motor vehicles. The commissioner shall immediately suspend the person’s operating license or nonresident operating privilege or the privilege of an unlicensed operator to operate a vehicle for a period of six months, and until the defendant complies with section 1209a of this title.

Sec. 20. 23 V.S.A. § 1209a(b) and (c) are amended to read:

(b) Abstinence. Notwithstanding any other provision of this subchapter, a person whose license has been suspended for three years or more under this subchapter may apply to the driver rehabilitation school director and to the commissioner for reinstatement of his or her driving privilege. In the case of a suspension for three years, the person shall have completed two years of total abstinence from consumption of alcohol or drugs or both. In the case of a suspension for life, the person shall have completed three years of total abstinence from consumption of alcohol or drugs or both. In both cases, the beginning date for the period of abstinence shall be no sooner than the effective date of the suspension from which the person is requesting reinstatement and shall not include any period during which the person is serving a sentence of incarceration to include furlough. If the commissioner, or a medical review board convened by the commissioner, is satisfied by a preponderance of the evidence that the applicant has abstained for the required number of years immediately preceding the application and hearing, has successfully completed a therapy program as required under this section and the person appreciates that he or she cannot drink any amount of alcohol and drive safely, the person's license shall be reinstated immediately upon such conditions as the commissioner may impose. If after notice and hearing the commissioner later finds that the person was operating, attempting to operate or in actual physical control of a vehicle while there was any amount of alcohol in the blood following reinstatement under this subsection, the person's operating license or privilege to operate shall be immediately suspended for the period of the original suspension. A person shall be eligible for reinstatement under this section only once following a suspension for life.

(c) Screening and therapy programs. In the case of a second or subsequent suspension, the *[court]* commissioner shall *[order]* notify the person that he or she is required to enroll in the alcohol and driving education screening and therapy program provided for in this section within 30 days of license suspension. If the person fails to enroll or fails to remain so enrolled until completion, the drinking driver rehabilitation program shall report such failure to the sentencing court. The court may order the person to appear and show cause why he or she failed to comply.

Sec. 21. 23 V.S.A. § 1210(c) and (d) are amended to read:

(c) Second offense. A person convicted of violating section 1201 of this title who has been convicted of another violation of that section shall be fined not more than $1,500.00 or imprisoned not more than two years, or both. *[At least 48 consecutive hours of the sentence of imprisonment must be served and may not be suspended or deferred or served as a supervised community sentence.]* At least 200 hours of community service shall be performed, or 60 consecutive hours of the sentence of imprisonment shall be served and may not be suspended or deferred or served as a supervised sentence, except that credit for a sentence of imprisonment may be received for time served in a residential alcohol facility pursuant to sentence if the program is successfully completed.

(d) Third or subsequent offense. A person convicted of violating section 1201 of this title who has twice been convicted of violation of that section shall be fined not more than $2,500.00 or imprisoned not more than five years, or both. At least 400 hours of community service shall be performed, or 100 consecutive hours of the sentence of imprisonment shall be served and may not be suspended or deferred or served as a supervised sentence, except that credit for a sentence of imprisonment may be received for time served in a residential alcohol facility pursuant to sentence if the program is successfully completed.

Sec. 22. 23 V.S.A. § 2302 is amended to read:

§ 2302. TRAFFIC VIOLATION DEFINED

(a) As used in this chapter, "traffic violation" means

(1) a violation of any provision of this title or rule adopted under this title for which no term of imprisonment is provided by law, and for which a penalty of no more than $1,000.00 is provided;

(2) *[any traffic complaint]* a violation of this title with a maximum penalty set at not more than $1,000.00 and for which no term of imprisonment is provided by law;

(3) *[any traffic violation]* a violation of this title with a scheduled penalty of not more than $1,000.00 established pursuant to *[subsection (d) of this section]* 4 V.S.A. § 1102(d) and for which no term of imprisonment is provided by law;

(4) a violation of any municipal ordinance relating to the operation or use of motor vehicles or to the use of highways by pedestrians or by the operation of any other vehicle. Violations of municipal ordinances relating to parking of motor vehicles shall not be considered traffic violations;

(5) a violation of chapter 28 of Title 5, relating to transportation of hazardous materials, and rules adopted pursuant to section 2001 of Title 5;

(6) a violation of chapter 29 of Title 5, relating to motor carrier safety standards, and rules adopted pursuant to section 2101 of Title 5; or

(7) a violation of section 3408(c) of Title 5, relating to trail use of certain state-owned railroad corridors.

(b) A traffic violation is not a crime and shall be treated as a civil action.

(c) A violation of a traffic law in this title for which no penalty is otherwise provided shall be subject to a penalty of not more than $1,000.00.

*[(d) For any traffic violation for which no term of imprisonment is provided by law, for which the minimum penalty is less than $1,000.00, or for which a penalty is not otherwise established, three district court judges appointed by the court administrator shall establish a schedule, within the limits prescribed by law, of the penalty to be imposed. Any police officer who issues a complaint shall advise the defendant of the schedule of penalties and show the defendant a copy thereof.]*

Sec. 23. REPEAL

23 V.S.A. § 2303 is repealed.

Sec. 24. 23 V.S.A. § 678 is added to read:

§ 678. OPERATING COMMERCIAL MOTOR VEHICLE AFTER PRIVILEGE SUSPENDED

A person whose privilege to operate a commercial motor vehicle has been suspended under section 4116a of this title, and who operates or attempts to operate a commercial motor vehicle upon a public highway before the suspension period has expired, shall be subject to the penalties set forth in subsection 674(a) of this title.

Sec. 25. 23 V.S.A. § 1218 is amended to read:

§ 1218. COMMERCIAL MOTOR VEHICLES; 0.04

(a) A person shall not operate, attempt to operate, or be in actual physical control of a commercial motor vehicle:

(1) when the person's alcohol concentration is 0.04 or more; or

(2) when the person is under the influence of intoxicating liquor; or

(3) when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely.

(b) A violation of this section shall result in disqualification from driving a commercial motor vehicle as provided in section 4116 of this title, or in suspension of the privilege to operate a commercial motor vehicle as provided in section 4116a of this title. Those provisions of section 1205 of this title which establish a procedure for civil suspensions shall apply to this section except that where that section refers to alcohol concentration it shall be deemed to refer to an alcohol concentration of 0.04.

Sec. 26. 23 V.S.A. § 4116a is added to read:

§ 4116a. SUSPENSION OF OPERATING PRIVILEGE

(a) A person’s privilege to operate a commercial motor vehicle in the state of Vermont shall be suspended for one year, if:

(1) the person is convicted of a first violation of operating, attempting to operate or being in actual physical control of a commercial motor vehicle on a highway with an alcohol concentration of 0.04 or more, or under the influence, as defined in section 1218 of this title; and

(2) the person’s commercial driver license is issued by a state or country that does not have a reciprocity agreement with the state of Vermont for the disqualification of commercial driver licenses under section 4115 of this title.

(b) A person’s privilege to operate a commercial motor vehicle in the state of Vermont shall be suspended for three years if the person is convicted of violating subsection (a) of this section, and the violation occurred while the person was transporting a hazardous material required to be placarded.

(c) A person’s privilege to operate a commercial motor vehicle in the state of Vermont shall be suspended for life if the person is convicted a second time of violating subsection (a) of this section, and both convictions arise out of separate occurrences.

(d) A person’s privilege to operate a commercial motor vehicle in the state of Vermont shall be suspended for 60 days if the person is convicted of two serious traffic violations, or for 120 days if the person is convicted of three serious traffic violations, arising from separate incidents occurring within a three-year period.

(e) A person’s privilege to operate a commercial motor vehicle in the state of Vermont shall be suspended for life if the person uses a commercial motor vehicle in the commission of any offense under state or federal law that is punishable by imprisonment for a term exceeding one year, involving the manufacture, distribution, or dispensing of a regulated drug, or possession with intent to manufacture, distribute or dispense a regulated drug, and for which the person was convicted.

Sec. 27. 24 V.S.A. § 1936a is amended to read:

§ 1936a. CONSTABLES; POWERS AND QUALIFICATIONS

* * *

(d) A municipal legislative body may vote to allow a constable elected or appointed in another municipality to exercise law enforcement authority in its municipality, provided that:

(1) the constable is not prohibited from exercising law enforcement authority under subsection (a) of this section;

(2) the constable has completed the training requirements for a full-time or part-time law enforcement officer under section 2358 of Title 20; and

(3) the exercise of law enforcement authority is conducted in accordance with policies and procedures adopted by the legislative body establishing the circumstances under which the authority may be exercised.

Sec. 28. 24 V.S.A. § 1977 is amended to read:

§ 1977. COMPLAINT FOR MUNICIPAL CIVIL ORDINANCE VIOLATIONS

(a) *[In all municipal civil cases before the judicial bureau, the summons and complaint shall be a form prescribed by the supreme court and known as the "municipal complaint."]*

*[(b)]* The complaint in a municipal civil case shall be signed by the issuing municipal official. The original copy shall be filed with the judicial bureau, a copy shall be retained by the issuing municipal official and two copies shall be given to the defendant. *[(c)]*(b) The municipal official may void or amend the municipal complaint issued by that official by so marking the complaint and sending it to the judicial bureau.

(c) The court administrator shall approve an appropriate summons and complaint form, pursuant to subsection 1105(a) of Title 4, to implement the assessment of the full and waiver penalty provisions of this section.

*[(d) The complaint shall contain a description of the ordinance allegedly violated, the allegations, the amount of the waiver penalty and the full penalty and an explanation of rights and instructions on answering the allegations. The complaint shall also contain, in boldface print, the following:]* *[(1) IF YOU ADMIT TO A VIOLATION OF THE ORDINANCE OF THE TOWN/CITY/VILLAGE OF ____ OR IF YOU DO NOT CONTEST THE ALLEGATIONS, SIGN THE COMPLAINT ADMITTING THE VIOLATION OR STATING THAT THE ALLEGATIONS ARE NOT CONTESTED AND SEND IT TO THE JUDICIAL BUREAU WITHIN 20 DAYS WITH PAYMENT IN THE AMOUNT OF THE WAIVER PENALTY.]* *[(2) If YOU WANT TO DENY THE ALLEGATIONS IN THIS COMPLAINT, YOU MUST SEND A SIGNED DENIAL TO THE JUDICIAL BUREAU WITHIN 20 DAYS. IF YOU SEND IN A DENIAL, YOU WILL RECEIVE A DATE FOR YOUR TRIAL FROM THE JUDICIAL BUREAU. IF YOU LOSE THE CASE AFTER A TRIAL, YOU WILL BE ORDERED TO PAY A PENALTY IN AN AMOUNT NOT LESS THAN THE WAIVER PENALTY AND NOT MORE THAN THE FULL PENALTY.]* *[(3) IF YOU DO NOT ANSWER THIS COMPLAINT WITHIN 20 DAYS, OR IF YOU DENY THE ALLEGATIONS IN THE COMPLAINT AND FAIL TO APPEAR FOR THE HEARING, A DEFAULT JUDGMENT WILL BE ENTERED AGAINST YOU IN THE AMOUNT OF THE FULL PENALTY. THE FAILURE TO PAY THE PENALTY ASSESSED WILL RESULT IN FURTHER LEGAL ACTION AGAINST YOU.]*

Sec. 29. 24 V.S.A. § 2201 is amended to read:

§ 2201. THROWING, DEPOSITING, AND DUMPING REFUSE; PENALTY; SUMMONS AND COMPLAINT

* * *

(f)*[(1) Summons and complaint. Upon a determination that a person has violated this section, a person authorized to enforce this section shall file a complaint against the person with the judicial bureau.]*

*[(2) In all littering and illegal dumping cases, the summons and complaint shall be in a form prescribed by the supreme court and known as the "littering and illegal dumping complaint."]* *[(3) The complaint shall be signed by the issuing person. The original shall be filed with the judicial bureau, a copy shall be retained by the issuing person, and two copies shall be given to the defendant.]* *[(4) The complaint shall contain a description of the provision of this section allegedly violated, the allegations, the amount of the waiver penalty and the full penalty, and an explanation of rights and instructions on answering the allegations. The complaint shall also contain, in boldface print, the following:]* *[(A) IF YOU ADMIT TO A VIOLATION OF THE LITTERING AND ILLEGAL DUMPING PROHIBITIONS OR IF YOU DO NOT CONTEST THE ALLEGATIONS, SIGN THE COMPLAINT ADMITTING THE VIOLATION OR STATING THAT THE ALLEGATIONS ARE NOT CONTESTED AND SEND IT TO THE JUDICIAL BUREAU WITHIN 20 DAYS WITH PAYMENT IN THE AMOUNT OF THE WAIVER PENALTY.]* *[(B) IF YOU WANT TO DENY THE ALLEGATIONS IN THIS COMPLAINT, YOU MUST SEND A SIGNED DENIAL TO THE JUDICIAL BUREAU WITHIN 20 DAYS. IF YOU SEND IN A DENIAL, YOU WILL RECEIVE A DATE FOR YOUR TRIAL FROM THE JUDICIAL BUREAU. IF YOU LOSE THE CASE AFTER A TRIAL, YOU WILL BE ORDERED TO PAY A PENALTY IN AN AMOUNT NOT LESS THAN THE WAIVER PENALTY AND NOT MORE THAN THE FULL PENALTY.]* *[(C) IF YOU DO NOT ANSWER THIS COMPLAINT WITHIN 20 DAYS, OR IF YOU DENY THE ALLEGATIONS IN THE COMPLAINT AND FAIL TO APPEAR FOR THE HEARING, A DEFAULT JUDGMENT WILL BE ENTERED AGAINST YOU IN THE AMOUNT OF THE FULL PENALTY. THE FAILURE TO PAY THE PENALTY ASSESSED WILL RESULT IN FURTHER LEGAL ACTION AGAINST YOU.]* *[(D) IF YOU ADMIT OR DO NOT CONTEST OR DO NOT ANSWER, YOU WILL BE LIABLE TO THE STATE OF VERMONT FOR THE AMOUNT INDICATED IN THE COMPLAINT.]*

(g) Amendment of complaint. A person authorized to enforce this section may amend or dismiss a complaint issued by that person by marking the complaint and returning it to the judicial bureau. At the hearing, a person authorized to enforce this section may amend or dismiss a complaint issued by that person, subject to the approval of the hearing judge.

*[(h) Waiver penalty. The administrative judge shall appoint a panel of judicial bureau hearing officers to establish a waiver penalty for a violation of this section.]*

Sec. 30. Rule 43 of the Vermont Rules of Criminal Procedure is revised to read:

RULE 43. PRESENCE OF THE DEFENDANT

* * *

(c) Presence Not Required. A defendant need not be present in the following situations:

* * *

(2) In prosecutions for misdemeanors, the defendant, with the consent of the court, may waive appearance under Rule 5 in writing and the court, with the written consent of the defendant and the state’s attorney, may permit arraignment, *[plea]* pleas of guilty, nolo contendere or not guilty, trial, and imposition of sentence in the defendant’s absence. Before a plea of not guilty may be filed and accepted by the court, the state’s attorney and the defendant shall agree upon bail and conditions of release, which shall be signed by the defendant and his or her attorney, and filed with the court simultaneously with the plea of not guilty.

* * *

Sec. 31. Rule 80.5(e) of the District Court Civil Rules is revised to read:

(e) Preliminary Hearing; Waiver; Discovery Limited. In every case under this rule, except as set forth below, a preliminary hearing shall be held.

At the preliminary hearing the State and the defendant shall each make available for inspection all nonprivileged information and written statements in their possession and control concerning the evidentiary test or tests, relation back, or other matters to be contested at the hearing on the merits, including without limitation the police report, expert witnesses’ reports, processing forms, affidavit, breath test results, police notes and the names and addresses of witnesses, except that evidence the defendant does not intend to use at the hearing need not be disclosed by the defendant. A copy of a videotape made of the alleged offense and subsequent processing shall be available for purchase by the defendant directly from the law enforcement agency responsible for initiating the action upon written request and advance payment of a $15.00 fee, except that no fee shall be charged to a defendant whom the court has determined to be indigent. The fees collected for videotapes sold under this rule shall be allocated in the manner prescribed by Rule 16 of the Vermont Rules of Criminal Procedure. Discoverable evidence not known at the time of the preliminary hearing shall be disclosed to the party immediately when it becomes known. Failure to provide discovery in accordance with this paragraph may be subject to appropriate sanctions in the discretion of the court, which may include preclusion of any witness or evidence not timely disclosed.

*[Upon request, either party is entitled to receive photocopies of the evidence listed above, within one day of the date it is produced for inspection.]*

A defendant to whom notice of suspension has been delivered or mailed shall appear by counsel or pro se a the preliminary hearing unless, prior to the hearing, the district court in the exercise of its discretion grants a request for waiver of the preliminary hearing. The request for waiver may be granted only if supported by affidavit establishing hardship and setting forth a telephone number at which the person may be contacted during business hours to be informed of the court’s ruling.

At the preliminary hearing the court shall ensure that the required disclosure has occurred, provide the defendant with an explanation of the procedures to be followed at the hearing on the merits, determine whether the defendant continues to seek a hearing on the merits, and, if so, schedule the hearing to be held within thirty days of the date the request for hearing was received by the Commissioner.

In extraordinary circumstances, the court may authorize use of discovery pursuant to these rules in addition to that set forth in this subdivision, but subject to the time constraints of this rule.

Sec. 32. Rule No. 16 of the Vermont Rules of Criminal Procedure is revised to read:

RULE 16. DISCOVERY BY DEFENDANT

* * *

(e) Videotapes. A copy of a videotape made of the alleged offense and subsequent processing shall be available for purchase by the defendant directly from the law enforcement agency responsible for initiating the action upon written request and advance payment of a $15.00 fee, except that no fee shall be charged to a defendant whom the court has determined to be indigent. A municipal or county law enforcement agency shall be entitled to all fees it collects for videotapes sold pursuant to this rule. Fees collected by the state for videotapes sold pursuant to this rule shall be deposited in the DUI enforcement special fund created under section 1220a of Title 23. The original videotape may be erased 90 days after:

(1) the entry of final judgment; or

(2) the date the videotape was made, if no civil or criminal action is filed.

Sec. 33. REPORTS

(a) The commissioner of the Department of Health shall promptly address the need for expert witness testimony and affidavits in civil and criminal actions for driving under the influence of alcohol. In developing methods of addressing this need, the commissioner shall consider training and assigning additional chemists and nonchemist employees to work with the DataMaster Program and to provide testimony. The commissioner shall be mindful of Rule 702 of the Vermont Rules of Evidence, which authorizes opinion testimony by a person who possesses knowledge, skill, experience, training or education. By September 1, 2000 and by January 15, 2001, the commissioner shall report the progress which has been made implementing this section to the chairs of the House and Senate Judiciary Committees.

(b) The coordinator of alcohol traffic safety programs shall, in the annual report required by Act No. 117 of 1998, report to the General Assembly and the Governor on the use of cruiser-mounted police package video cameras. The report shall:

(1) include but not be limited to the incidence of use and nonuse, effectiveness, training and limitations inherent in cruiser-mounted police package video cameras;

(2) discuss any recommendations to enhance the effectiveness and use of the cameras; and

(3) include copies of the then current policies and procedures adopted by the commissioner of the department of public safety regarding the use of the cameras.

Sec. 34. EFFECTIVE DATE

Secs. 1, 4 and 33 of this act shall take effect on passage.

Approved: May 29, 2000