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S.64

Introduced by   Senator Campbell of Windsor District and Senator Illuzzi of Essex-Orleans District

Referred to Committee on

Date:

Subject:  Motor vehicles; boats; operating while under the influence of intoxicating liquor or drugs

Statement of purpose:  This bill proposes to make the penalties for operating a boat negligently or while under the influence of alcohol or drugs the same as those for operating a motor vehicle negligently or while under the influence of alcohol or drugs, and it establishes a new criminal offense for grossly negligent operation of a boat.  The bill makes it a crime to provide false information to a police officer in order to avoid being identified.  The bill also makes a number of changes to the law governing operation of a motor vehicle while under the influence of alcohol or drugs, including providing that:  (1) a person is prohibited from operating a vehicle while under the influence of any drug or combination of drugs and alcohol; (2) a person is deemed to have given consent to an evidentiary blood sample if, in the officer’s opinion, breath testing equipment is not reasonably available; (3) a person’s lack of consultation with an attorney may not be grounds for suppressing the person’s test result or refusal to submit to the test if the person was provided with an opportunity to consult with an attorney; (4) if an evidentiary blood test is taken, the preliminary civil license suspension hearing shall be held within 21 days after the state receives the test result, and the final hearing shall be held within 42 days after the state receives the test result; and (5) the defendant must set forth factual allegations to support each issue on the defendant’s list of issues to be considered at the final civil suspension hearing, and the court is prohibited from considering any issue not so supported.

AN ACT RELATING TO OPERATING A MOTOR VEHICLE OR BOAT NEGLIGENTLY OR WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS

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

Sec. 1.  13 V.S.A. § 1754 is amended to read:

§ 1754.  FALSE REPORTS TO LAW ENFORCEMENT AUTHORITIES

(a)  A person who knowingly gives false information to any law enforcement officer with purpose to implicate another or to avoid being identified by the officer shall be imprisoned for not more than one year or fined not more than $1,000.00 or both.

* * *

Sec. 2.  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 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.

* * *

Sec. 3.  23 V.S.A. § 1202 is amended to read:

§ 1202.  CONSENT TO TAKING OF TESTS TO DETERMINE BLOOD

              ALCOHOL CONTENT

(a)(1)  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.

(2)  Blood test.  If in the officer’s opinion 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.

(3)  Evidentiary test.  The evidentiary test or tests shall be required of a person when a law enforcement officer has reasonable grounds to believe that the person was operating, attempting to operate, or in actual physical control of a vehicle in violation of section 1201 of this title.

(4)  Fatal collision or incident resulting in serious bodily injury.  The evidentiary test or tests shall also be required if the person is the surviving operator of a motor vehicle involved in a fatal incident or collision or an incident or collision resulting in serious bodily injury and the law enforcement officer has reasonable grounds to believe that the person has any amount of alcohol or other drug in his or her system.

* * *

(d)  At the time a test is requested, the person shall be informed of the following statutory information:

* * *

(4)  A person who is requested by a law enforcement officer to submit to an evidentiary test or tests has the limited right to consult an attorney before deciding whether or not to submit to such a test or tests.  The person must decide whether or not to submit to the evidentiary test or tests within a reasonable time and no later than 30 minutes from the time of the initial attempt to contact the attorney regardless of whether a consultation took place.  As long as the officer affords the person an opportunity to consult with an attorney prior to deciding whether to submit to the evidentiary test or tests, the lack of a consultation shall not be grounds for suppressing the person’s test results or the person’s refusal to submit to the evidentiary test or tests.  The person also has the right to have additional tests made by someone of the person's own choosing at the person's own expense.  The person shall also be informed of the location of one or more facilities available for drawing blood.

* * *

Sec. 4.  23 V.S.A. § 1205 is amended to read:

§ 1205.  CIVIL SUSPENSION; SUMMARY PROCEDURE

* * *

(g)  Preliminary hearing.  The preliminary hearing shall be held within 21 days of the alleged offense, except that if an evidentiary blood test is taken, the preliminary hearing shall be held within 21 days after the state receives the test results.  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.

(1)  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 if an evidentiary blood test is taken, the final hearing shall be held within 42 days after the state receives the test results.  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)(A)  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)(B)  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)(C)  whether the person refused to permit the test;

(4)(D)  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)(E)  whether the requirements of section 1202 of this title were complied with.

(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.  The list shall set forth the factual allegations the defendant intends to introduce in support of each issue. Any issue on the list which is not supported by written factual allegations shall not be considered by the court at the final hearing.  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.

* * *

Sec. 5.  23 V.S.A. § 1210 is amended to read:

§ 1210.  PENALTIES

(a)  Screening.  Before sentencing a defendant under this section, the court may order that the defendant submit to an alcohol assessment screening.  Such a screening report may be considered at sentencing in the same manner as a presentence report.  At sentencing, the defendant may present relevant evidence, including the results of any independent alcohol assessment which was conducted at the person's own expense.  Evidence regarding any such screening or an alcohol assessment performed at the expense of the defendant shall not be admissible for any other purpose without the defendant's consent.

(b)  First offense.  A person who violates section 1201 or 3323 of this title may be fined not more than $750.00, or imprisoned for not more than two years, or both.

(c)  Second offense.  A person convicted of violating section 1201 or 3323 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 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 or 1323 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.

(e)  Death resulting.  If the death of any person results from a violation of section 1201 or 3323 of this title, the person convicted of the violation shall be fined not more than $10,000.00 or imprisoned not less than one year nor more than 15 years, or both.  The provisions of this subsection do not limit or restrict prosecutions for manslaughter.

(f)  Injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 1201 or 3323 of this title, the person convicted of the violation shall be fined not more than $5,000.00, or imprisoned not less than one year nor more than 15 years, or both.

(g)  Determination of fines.  In determining appropriate fines under this section the court may take into account the total cost to a defendant of alcohol screening, participation in the alcohol and driving education program and therapy and the income of the defendant.

* * *

Sec. 6.  23 V.S.A. § 3311 is amended to read:

§ 3311.  OPERATION OF VESSELS; PROHIBITED ACTS

(a)  Careless and negligent operation. A person shall not operate any vessel or manipulate any water skis, surfboard, or similar device in a careless or negligent manner or in any manner to endanger or jeopardize the safety, life or property of another person.

(a)(1)  Negligent operation.

(A)  A person who operates a vessel in a negligent manner on the waters of this state shall be guilty of negligent operation.

(B)  The standard for a conviction for negligent operation in violation of this subsection shall be ordinary negligence, examining whether the person breached a duty to exercise ordinary care.

(C)  A person who violates this subsection shall be imprisoned not more than one year or fined not more than $1,000.00, or both.  If the person has been previously convicted of a violation of this subsection, the person shall be imprisoned not more than two years or fined not more than $3,000.00, or both.

(2)  Grossly negligent operation.

(A)  A person who operates a vessel in a grossly negligent manner on the waters of this state shall be guilty of grossly negligent operation.

(B)  The standard for a conviction for grossly negligent operation in violation of this subsection shall be gross negligence, examining whether the person engaged in conduct which involved a gross deviation from the care that a reasonable person would have exercised in that situation.

(C)  A person who violates this subsection shall be imprisoned not more than two years or fined not more than $5,000.00, or both.  If the person has previously been convicted of a violation of this section, the person shall be imprisoned not more than four years or fined not more than $10,000.00, or both.  If serious bodily injury as defined in section 1021 of Title 13 or death of any person other than the operator results, the operator shall be imprisoned for not more than 15 years or fined not more than $15,000.00, or both.

(3)  The provisions of this subsection do not limit or restrict the prosecution for manslaughter.

* * *

Sec. 7.  23 V.S.A. § 3317 is amended to read:

§ 3317.  PENALTIES

* * *

(c)  A person who violates any of the following sections of this title shall be imprisoned not more than three months or fined not more than $300.00, or both, for each violation:

  § 3306(a)(b)§ 3305a(b)         operating privilege suspended

  § 3311(a)                   careless and negligent operation

  § 3311(b)                   permitting use by intoxicated person

  § 3311(f)                    attempting to elude a law enforcement officer

  § 3311(g)                   residential vessel prohibited

  § 3313(a)                   leaving scene of accident

(d)  Boating while intoxicated; privilege suspension.  Any person who is convicted of violating section 3323 of this title shall have his or her privilege to operate a vessel, except a nonmotorized canoe and a nonmotorized rowboat, suspended for a period of one year and until the person complies with section 1209a of this title.

(e)  Boating while intoxicated; criminal penalty.  Any person who violates a provision of section 3323 of this title shall be imprisoned for not more than one year and subject to the following fines:

(1)  for a first offense, not less than $200.00 nor more than $750.00;

(2)  for a second or subsequent offense, not less than $250.00 nor more than $1,000.00 sentenced under section 1210 of this title.

(f)  Boating while intoxicated; death resulting. If the death of any person results from the violation of section 3323 of this title, the person convicted shall, instead of any other penalty imposed in this section, be imprisoned not more than five years or fined not more than $2,000.00 or both; but the provisions of this section shall not be construed to limit or restrict prosecutions for manslaughter.

(g)  Defective, stolen or, fraudulently registered motorboat; registration revocation or suspension.  The commissioner of motor vehicles or his or her authorized agent may suspend or revoke the registration of any motorboat registered in this state and repossess the number and certificate to it, when he or she is satisfied that:

(1)  a motorboat has been stolen and that the registrant has not legal title; or

(2)  a motorboat is in such poor mechanical or structural condition as to make it unseaworthy; or

(3)  a motorboat is operated without proper equipment after the owner has been notified to procure and use such equipment as is required by law or department rules; or

(4)  the owner of a motorboat has perpetrated some fraud upon the department of motor vehicles.

(h)(g)  More than two violations; education program required.  Any person convicted of more than two boating violations concerning the operation of, or safety equipment on, a vessel within a two-year period shall, in addition to penalties provided for in this section, have his or her privilege to operate a vessel on the waters of this state suspended until the person has successfully completed the boating safety education program provided in section 3305b of this title.  A person shall also be required to complete the program if convicted of careless or negligent operation or of operation under the influence of alcohol or drugs.  The requirements of this subsection apply regardless of whether a person has completed the education program one or more times.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us