Download this document in MS Word format


AutoFill Template

S.78

Introduced by   Senator Wilton of Rutland District, Senator Canns of Caledonia District, Senator Doyle of Washington District, Senator Giard of Addison District, Senator Illuzzi of Essex-Orleans District, Senator Maynard of Rutland District, Senator Mullin of Rutland District and Senator Starr of Essex-Orleans District

Referred to Committee on

Date:

Subject:  Motor vehicles; operating under the influence of alcohol; consent to taking of blood test    

Statement of purpose:  This bill requires a motor vehicle operator to consent to a blood test to determine the operator’s alcohol concentration if a law enforcement officer reasonably believes the operator is driving while under the influence of alcohol.

AN ACT RELATING TO CONSENT TO TAKING OF BLOOD TESTS TO DETERMINE A MOTOR VEHICLE OPERATOR’S BLOOD ALCOHOL CONTENT

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

Sec. 1.  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 or an evidentiary sample of blood, or both, 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, who may determine whether to obtain a breath test or blood sample, or both.

(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.

(3)  Evidentiary test.  The evidentiary test or evidentiary blood sample, or both, 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)(3)  Fatal collision or incident resulting in serious bodily injury.  The evidentiary test or evidentiary blood sample, or both, 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.

(b)(1)  If the person refuses to submit to an evidentiary test it shall not be given, except as provided in subsection (f) of this section, but or to provide an evidentiary blood sample:

(A)  the refusal may be introduced as evidence in a criminal proceeding; and

(B)  a law enforcement officer may apply for a search warrant pursuant to Rule 41 of the Vermont Rules of Criminal Procedure to obtain a sample of blood for an evidentiary test.  

(2)  If a blood sample is obtained by search warrant under subdivision (1)(B) of this subsection, the fact of the refusal may still be introduced in evidence, in addition to the results of the evidentiary test.  Once a law enforcement official begins the application process for a search warrant, the law enforcement official is not obligated to discontinue the process even if the person later agrees to provide an evidentiary breath sample.  The limitation created by Rule 41(g) of the Vermont Rules of Criminal Procedure regarding blood specimens shall not apply to search warrants authorized by this section.

(c)  A person who is requested by a law enforcement officer to provide an evidentiary blood sample or to submit to an evidentiary test or tests has a right as herein limited to consult an attorney before deciding whether or not to provide the sample or submit to such a test or tests.  The person must decide whether or not to provide the evidentiary sample or 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.  The person must make a decision about whether or not to provide the sample or submit to the test or tests at the expiration of the 30 minutes regardless of whether a consultation took place.

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

(1)  Vermont law authorizes a law enforcement officer to request a test or sample, or both to determine whether the person is under the influence of alcohol or other drug.

(2)  If the officer’s request is reasonable and testing or sampling is refused, the person’s license or privilege to operate will be suspended for at least six months.

(3)  If a test or sample is taken and the results indicate that the person is under the influence of alcohol or other drug, the person will be subject to criminal charges and the person’s license or privilege to operate will be suspended for at least 90 days.

(4)  A person who is requested by a law enforcement officer to provide an evidentiary blood sample or to submit to an evidentiary test or tests has the limited right to consult an attorney before deciding whether or not to provide the sample or submit to such a test or tests.  The person must decide whether or not to provide the sample or 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.  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.

(5)  A person who is requested by a law enforcement officer to submit to an evidentiary test administered with an infrared breath-testing instrument may elect to have a second infrared test administered immediately after receiving the results of the first test.

(6)  If the person refuses to take an evidentiary test or provide an evidentiary blood sample, the court may issue a search warrant and order the person to submit to a blood test, the results of which may be offered into evidence against the person at trial.  The refusal may be offered into evidence against the person at trial, whether or not a search warrant is sought.  The person may be charged with the crime of criminal refusal if the person:

(A)  has previously been convicted of a violation of section 1201 of this title; or

(B)  is involved in an accident or collision resulting in serious bodily injury or death to another, in which case the court may issue a search warrant and order the person to submit to a blood test, the results of which may be offered into evidence against the person at trial.

(e)  In any proceeding under this subchapter, a law enforcement officer’s testimony that he or she is certified pursuant to section 2358 of Title 20 shall be prima facie evidence of that fact.

(f)  If a person who has been involved in an accident or collision resulting in serious bodily injury or death to another refuses an evidentiary test, a law enforcement officer may apply for a search warrant pursuant to Rule 41 of the Vermont Rules of Criminal Procedure to obtain a sample of blood for an evidentiary test.  If a blood sample is obtained by search warrant, the fact of the refusal may still be introduced in evidence, in addition to the results of the evidentiary test.  Once a law enforcement official begins the application process for a search warrant, the law enforcement official is not obligated to discontinue the process even if the person later agrees to provide an evidentiary breath sample.  The limitation created by Rule 41(g) of the Vermont Rules of Criminal Procedure regarding blood specimens shall not apply to search warrants authorized by this section.

(g)  The defender general shall provide statewide 24-hour coverage seven days a week to assure that adequate legal services are available to persons entitled to consult an attorney under this section.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us