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ACT NO. 160

(S.324)

Courts and Court Procedure; Criminal and Civil Procedures Involving Alcohol and Motor Vehicles

This act makes the following changes to criminal and civil procedures involving alcohol and motor vehicle violations:

(1) Vermont law enforcement officers are permitted to make arrests in the federal enclave between Canada and the United States for violations of Vermont law.

(2) The jurisdiction of the diversion board is expanded to include civil offenses for minors in possession of alcohol. The diversion program is also provided with the authority to develop and administer other programs to meet the needs of participants.

(3) The District Court is provided with jurisdiction over automobile forfeiture proceedings.

(4) The forms and procedures related to civil violations in the judicial bureau are streamlined, primarily by eliminating the requirement that different forms be used for each type of civil violation. The act permits the court administrator to develop standardized summons and complaint forms to use for all civil violations in the judicial bureau, provided that the forms contain certain minimum statements about the rights of the parties and the procedures to be followed. The act also authorizes waiver penalties to be determined by three hearing officers appointed by the court administrator (except in the case of municipal ordinance violations, where the penalties will continue to be set by the municipality).

(5) For first offenses, charges against minors 16 and older for possession of alcohol may be treated as civil violations and charged in the judicial bureau instead of as criminal offenses prosecuted in district court, if the state’s attorney chooses. The bill also adds consumption of and attempting to procure alcohol to the current prohibitions on possession and procurement. A person charged with a civil violation must complete alcohol screening under the oversight of the teen alcohol service program, a new program to be established for this purpose by the diversion board. Civil violations cannot, however, be used by insurers as a basis for setting rates. Failure to complete conditions of the program results in suspension of the offender’s driver’s license for 90 days. For criminal cases where there has been a prior offense, the bill adds a 120-day mandatory license suspension, as well as a 60-day suspension for cases which go to diversion.

(6) Allows certain Immigration and Naturalization Service (INS) and Customs Service agents to make arrests for violations of Vermont law if the officer has: (1) completed a course in Vermont law approved by the criminal justice training council; (2) taken an oath to uphold the Vermont Constitution; and (3) determined that the arrest is necessary to prevent an escape or to protect or provide assistance to a person threatened with serious bodily injury. The arrest must be reported immediately to the nearest Vermont state police barracks.

(7) For purposes of civil driver license suspension (DLS) proceedings, an affidavit from an employee of the Agency of Transportation indicating that the person’s license was suspended is admissible and establishes a permissive inference that the suspension was in effect for the time period stated. A certified copy of the person’s motor vehicle record from DMV is not required to establish the inference.

(8) Proof of minimum insurance coverage is required from anyone who is convicted of a moving violation while having five points on their driver’s license, unless the offender verifies to DMV that he or she had an insurance policy in place at the time of the violation. Proof of minimum coverage is also required from persons who have had their license suspended civilly for DUI; prior law only required such proof from persons convicted criminally of the offense.

(9) The act creates an affirmative defense for “actual physical control” DUI cases if the defendant proves by clear and convincing evidence that he or she had no intention of operating the vehicle and had not in fact operated the vehicle while under the influence.

(10) An evidentiary blood sample may be obtained from a driver if the police officer has reasonable grounds to believe that the driver is unable to give a sufficient sample of breath for testing.

(11) Police officers may require breath or blood alcohol tests in adjoining states or countries, unless prohibited by the law of the other jurisdiction. This section also permits law enforcement officers to erase or destroy videotapes made of the offense and processing after specified time periods have elapsed, and requires a copy of the videotape be provided to the defendant within 10 days after the defendant asks for it and pays a $15.00 fee. Indigent defendants are not required to pay the fee.

(12) The issues at civil suspension hearings are limited to those about which the defendant provides notice seven days before the hearing, and chemists are permitted to testify at the hearings by telephone. This section also provides that the 21-day and 42-day time limits for holding preliminary and final civil suspension hearings are not mandatory for first offenses, and makes clear that multiple license suspensions for the same incident run concurrently.

(13) A person who fails to comply with a request for a breath or blood test shall be subject to an automatic six-month license suspension if that person was previously convicted of DUI or was involved in an accident resulting in death or serious injury, and the police officer has reasonable grounds to believe the person was driving while intoxicated.

(14) The responsibility for notifying defendants that they are required to enroll in alcohol and driver education screening is transferred from the court to the Commissioner of Motor Vehicles.

(15) The number of hours of imprisonment which must be served by a person convicted for a second time of operating a vehicle while under the influence of alcohol is raised from 48 to 60, and the defendant is provided with the option of performing 200 hours of community service as an alternative sentence; for third or subsequent offenses, the options are 100 hours of imprisonment or 400 hours of community service. In either case, credit may be received for time served in a residential alcohol treatment facility pursuant to a sentence if the program is successfully completed.

(16) If a person has a commercial driver license 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, the penalty for operating a commercial motor vehicle with an alcohol concentration of 0.04 or more shall be suspension of the person’s privilege to operate a commercial motor vehicle in the state of Vermont for one year.

(17) Permits a municipal legislative body to allow law enforcement authority to be exercised in that municipality by a constable from another municipality who has completed the training requirements for full or part-time law enforcement officers established by the Criminal Justice Training Council, provided the exercise of authority is conducted in accordance with policies and procedures adopted by the legislative body, and the constable is not prohibited by his or her own municipality from exercising law enforcement authority.

(18) In misdemeanor prosecutions, defendants may execute written waivers for pleas of not guilty and nolo contendere as well as for pleas of guilty, provided the state’s attorney and the court consent. This means the defendant would not have to appear in court to execute the plea. This section also requires the state’s attorney and the defendant to agree on bail and conditions of release before filing a not guilty plea with the court.

(19) For purposes of DUI license suspension proceedings, the act removes the requirement that photocopies of evidence be produced within one day of the date the originals are produced for inspection.

(20) The Commissioner of Health is directed to take measures to address the need for affidavit testimony by expert witnesses in DUI cases, and to report progress made to the House and Senate Judiciary Committees by September 1, 2000 and January 15, 2001. This section also instructs the coordinator of alcohol traffic safety programs to report to the legislature on the use of cruiser-mounted police package video cameras.

Effective Date: July 1, 2000, except for the sections which authorize studies and reports to the legislature, provide the District Court with jurisdiction over automobile forfeiture proceedings, and allow Vermont law enforcement officers to make arrests in the federal enclave between Canada and the United States for violations of Vermont law, all of which took effect on passage, which was May 29, 2000.