Introduced by Representative Kainen of Hartford
Subject: Motor vehicles; operating under the influence of alcohol or drugs
Statement of purpose: This bill proposes to prohibit a person from operating a motor vehicle if the person is impaired by a drug or by the combined influence of alcohol and a drug. With respect to DUI civil license suspension cases, the bill provides that: (1) the time limit for providing a notice of suspension is not jurisdictional; (2) when evidentiary blood tests are taken, the preliminary hearing must be held within 21 days after the state receives the results of the test, and the final hearing must be held within 42 days after the state receives those results; and (3) the list of issues the defendant is required to file prior to the final hearing must include factual allegations in support of each issue, and the court is prohibited from considering any issue not so supported.
AN ACT RELATING TO OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 23 V.S.A. § 1201 is amended to read:
§ 1201. OPERATING VEHICLE UNDER THE INFLUENCE OF
INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL REFUSAL
(a) A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:
(1) when the person’s alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or
(2) 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 impaired; or
(3) when the person is under the influence of intoxicating liquor; or
(4) when the person’s alcohol concentration is 0.04 or more if the person is operating a commercial motor vehicle as defined in subdivision 4103(4) of this title.
* * *
Sec. 2. 23 V.S.A. § 1205 is amended to read:
§ 1205. CIVIL SUSPENSION; SUMMARY PROCEDURE
* * *
(c) Notice of suspension. On behalf of the commissioner of motor vehicles, a law enforcement officer requesting or directing the administration of an evidentiary test shall serve notice of intention to suspend and of suspension on a person who refuses to submit to an evidentiary test or on a person who submits to a test the results of which indicate that the person's alcohol concentration was 0.08 or more at the time of operating, attempting to operate or being in actual physical control of a vehicle in violation of section 1201 of this title. The notice shall be signed by the law enforcement officer requesting the test. The notice shall also serve as a temporary operator's license and shall be valid until the effective date of suspension indicated on the notice. At the time the notice is given to the person, the person shall surrender, and the law enforcement officer shall take possession and custody of, the person's license or permit and forward it to the commissioner. A copy of the notice shall be sent to the commissioner of motor vehicles and a copy shall be mailed or given to the defendant within three business days of the date the officer receives the results of the test. The time limit for providing copies of the notice to the commissioner and the defendant is directive only and shall not be interpreted by the court to be mandatory or jurisdictional. If mailed, the notice is deemed received three days after mailing to the address provided by the defendant to the law enforcement officer. A copy of the affidavit of the law enforcement officer shall also be mailed first class mail or given to the defendant within seven days of the date of notice.
* * *
(g) Preliminary hearing. The preliminary hearing shall be held within 21 days of the alleged offense, except that in a case in which an evidentiary blood test is taken, the preliminary hearing shall be held within 21 days after the state receives the result of the test. Unless impracticable or continued for good cause shown, the date of the preliminary hearing shall be the same as the date of the first appearance in any criminal case resulting from the same incident for which the person received a citation to appear in court. The preliminary hearing shall be held in accordance with procedures prescribed by the supreme court.
(h) Final hearing. If the defendant requests a hearing on the merits, the court shall schedule a final hearing on the merits to be held within 21 days of the date of the preliminary hearing. In no event may a final hearing occur more than 42 days after the date of the alleged offense without the consent of the defendant or for good cause shown, except that in a case in which an evidentiary blood test is taken, the final hearing shall be held within 42 days after the state receives the result of the test. The final hearing may only be continued by the consent of the defendant or for good cause shown. The issues at the final hearing shall be limited to the following:
(1) whether the law enforcement officer had reasonable grounds to believe the person was operating, attempting to operate or in actual physical control of a vehicle in violation of section 1201 of this title;
(2) whether at the time of the request for the evidentiary test the officer informed the person of the person's rights and the consequences of taking and refusing the test substantially as set out in subsection 1202(d) of this title;
(3) whether the person refused to permit the test;
(4) whether the test was taken and the test results indicated that the person's alcohol concentration was 0.08 or more at the time of operating, attempting to operate or being in actual physical control of a vehicle in violation of section 1201 of this title, whether the testing methods used were valid and reliable and whether the test results were accurate and accurately evaluated. Evidence that the test was taken and evaluated in compliance with rules adopted by the department of health shall be prima facie evidence that the testing methods used were valid and reliable and that the test results are accurate and were accurately evaluated;
(5) whether the requirements of section 1202 of this title were complied with 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. The list shall set forth the factual allegations the defendant intends to introduce in support of each listed issue. The court shall not consider at the final hearing any issue listed by the defendant which was not supported by written factual allegations. 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.
* * *
The Vermont General Assembly
115 State Street