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H.97

AN ACT RELATING TO OPERATING WITH A SUSPENDED LICENSE AND FAILING TO PAY PENALTIES FOR TRAFFIC OFFENSES

The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  23 V.S.A. § 513 is amended to read:

§ 513.  MISUSE OF PLATES

Except as provided in section 321 of this title, an owner of a motor vehicle shall not attach or cause to be attached thereto to the vehicle number plates that were not assigned by the commissioner of motor vehicles to such owner to be attached to such motor vehicle.  A person shall not operate a motor vehicle, except as provided in section 321 of this title, to which number plates are attached that were not assigned to such the vehicle by the commissioner of motor vehicles.  An inspector of motor vehicles and any enforcement officer shall have authority to remove from a motor vehicle any plates which have been attached in violation of the provisions of this section.

Sec. 2.  23 V.S.A. § 674 is amended to read:

§ 674.  OPERATING AFTER SUSPENSION OR REVOCATION OF

            LICENSE; PENALTY; REMOVAL OF REGISTRATION PLATES;

            TOWING

(a)(1)  Except as provided in section 676 of this title, a person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of this section or subsections 1091(b), 1094(b), or 1128(b) or (c) of this title and who operates or attempts to operate a motor vehicle upon a public highway before the suspension period imposed for the violation has expired shall be imprisoned not more than two years or fined not more than $5,000.00, or both.

(2)  A person who violates section 676 of this title for the sixth or subsequent time shall, if the five prior offenses occurred after July 1, 2003, be imprisoned not more than two years or fined not more than $5,000.00, or both.

* * *

(c)  An enforcement officer shall have the authority to remove any number plates from a motor vehicle which is being operated by a person in violation of subsection (a) or (b) of this section.  The commissioner shall be notified in writing and may, in his or her sole discretion, cause the plates to be returned to the registered owner or lessee for good cause shown.  The vehicle shall be towed to the tow operator’s place of business and shall not be released until the tow operator is shown proof that the plates have been returned to the registered owner or lessee, or that the vehicle has been reregistered, and the towing and storage fees are paid.

(c)(d)  Notwithstanding any other provision of this title, when a conviction for a violation of this section and a conviction for a violation of section 1201 of this title result from the same incident, any penalty or suspension or revocation of a person’s license or privilege to operate shall be imposed to be consecutive and not concurrent.

(d)(e)  In determining appropriate fines under this section, the court may take into account the income of the defendant.

(e)(f)  For purposes of this section and section 676 of this title, the suspension period for a violation of section 1201 or 1205 of this title shall not be deemed to expire until the person has complied with section 1209a of this title and the person’s license has been reinstated.

(f)(g)  In establishing a prima facie case against a person accused of violating this section, the court and the judicial bureau shall accept as admit into evidence a printout attested to by the law enforcement officer as the person’s motor vehicle record showing convictions and resulting license suspensions.  The admitted motor vehicle record and the officer’s testimony shall establish a permissive inference in a criminal action and a rebuttable presumption in a civil action, including actions pending before the judicial bureau, that the person was under suspension on the dates and time periods set forth in the record.  No certified copy shall be required from the department of motor vehicles to establish the permissive inference or the rebuttable presumption.

(g)(h)  At the time of sentencing after a second or subsequent conviction under subsection (b) of this section, the court may, in addition to any penalty imposed by law, order that the motor vehicle operated by the person at the time of the offense be immobilized.  At the time of sentencing after a third or subsequent conviction under subsection (b) of this section, the court may, in addition to any penalty imposed by law, order that the motor vehicle operated by the person at the time of the offense be forfeited and sold.  Immobilization and forfeiture procedures under this section shall be conducted in accordance with the procedures in section 1213c of this title.

(h)(i)  A person convicted of violating this section shall be assessed a surcharge of $50.00, which shall be added to any fine or surcharge imposed by the court.  The court shall collect and transfer the surcharge assessed under this subsection to be credited to the DUI enforcement fund.  The collection procedures described in 13 V.S.A. § 5240 shall be utilized in the collection of this surcharge.

Sec. 3.  23 V.S.A. § 1216 is amended to read:

§ 1216.  PERSONS UNDER 21; ALCOHOL CONCENTRATION OF 0.02

              OR MORE

* * *

(d)  If a law enforcement officer has reasonable grounds to believe that a person is violating this section, the officer may request the person to submit to a breath test using a preliminary screening device approved by the commissioner of health.  A refusal to submit to the breath test shall be considered a violation of this section.  Notwithstanding any provisions to the contrary in sections 1202 and 1203 of this title:

(1)  the results of the test shall be admissible admitted as evidence in a proceeding under this section; and

(2)  there shall be no statutory right to counsel prior to the administration of the test.

* * *

Sec. 4.  23 V.S.A. § 2307 is amended to read:

§ 2307.  SUSPENSION REMEDIES FOR FAILURE TO PAY

(a)  As used in this section:

(1)  “Amount due” means all financial assessments contained in a judicial bureau judgment, including penalties, fines, surcharges, court costs, and any other assessment authorized by law.

(2)  “Designated collection agency” means a collection agency designated by the court administrator. 

(3)  “Designated credit bureau” means a credit bureau designated by the court administrator or the court administrator’s designee.

(b)  Notice of risk of suspension.  In the case of failure to pay a penalty, the judicial bureau shall mail a notice to the defendant at the address in the complaint notifying the defendant A judgment for a traffic violation shall contain a notice that failure to pay or otherwise satisfy the penalty amount due within 20 days of the notice will result in suspension of the person’s operator’s license or privilege to operate until the penalty amount due is paid or otherwise satisfied.  A copy of the notice shall be sent If the defendant fails to pay the amount due within 20 days of the notice, the judicial bureau shall provide electronic notice thereof to the commissioner of motor vehicles who, after 20 days from the date of receiving the electronic notice, shall suspend the person’s operator’s license or privilege to operate until the penalty amount due is paid or otherwise satisfied.

(c)  Civil contempt proceedings.  If an amount due remains unpaid for 45 days after the judicial bureau provides the defendant with a notice of risk of suspension pursuant to subsection (b) of this section, the judicial bureau may initiate civil contempt proceedings pursuant to this subsection.  

(1)  Notice of hearing.  The judicial bureau shall provide notice by first class mail sent to the defendant’s last known address that a contempt hearing will be held pursuant to this subsection and that failure to appear at the contempt hearing may result in the sanctions listed in subdivision (c)(2) of this section and subject to procedures for tax setoffs under 32 V.S.A. § 5941.

(2)  Failure to appear.  If the defendant fails to appear at the contempt hearing, the hearing officer may direct the clerk of the judicial bureau to:

(A)  cause the matter to be reported to one or more designated credit bureaus; or

(B)  refer the matter to district court for contempt proceedings.

(3)  Hearing.  The hearing shall be conducted in a summary manner.  The hearing officer shall examine the defendant and any other witnesses and may require the defendant to produce documents relevant to the defendant’s ability to pay the amount due.  The state or municipality shall not be a party except with the permission of the hearing officer.  The defendant may be represented by counsel at the defendant’s own expense.

(4)  Mitigation remedies.

(A)  The hearing officer may waive the reinstatement fee required by section 675 of this title or reduce the amount due on the basis of:

(i)  the defendant’s driving history, ability to pay, or service to the community;

(ii)  the collateral consequences of the violation; or

(iii)  the interests of justice.

(B)  The hearing officer may specify a date by which the defendant shall pay the amount due and may notify the commissioner of motor vehicles to reinstate the defendant’s operator’s license or privilege subject to payment of the amount due by the specified date.  If the defendant fails to pay the amount due by the specified date, the judicial bureau may notify the commissioner to suspend the defendant’s operator’s license or privilege.  A license may be reinstated under this subdivision only if the defendant’s license is suspended solely for failure to pay a judicial bureau judgment.

(C)  The judicial officer shall have sole discretion to determine mitigation remedies pursuant to this subdivision, and the judicial officer’s determination shall not be subject to review or appeal in any court, tribunal, or administrative office.

(5)  Contempt.

(A)  The hearing officer may conclude that the defendant is in contempt if the hearing officer states in written findings a factual basis for concluding that:

(i)  The defendant knew or reasonably should have known that he or she owed an amount due on a judicial bureau judgment;

(ii)  The defendant had the ability to pay all or any portion of the amount due; and

(iii)  The defendant failed to pay all or any portion of the amount due.

(B)  The hearing officer may in the contempt order do one or more of the following:

(i)  Set a date by which the defendant shall pay the amount due;

(ii)  Assess an additional penalty not to exceed ten percent of the amount due;

(iii)  Direct the clerk of the judicial bureau to cause the matter to be reported to one or more designated credit bureaus.  The court administrator or the court administrator’s designee is authorized to contract with one or more credit bureaus for the purpose of reporting information about unpaid judicial bureau judgments; and

(iv)  Recommend that the district court incarcerate the defendant until the amount due is paid.  If incarceration is recommended pursuant to this subdivision, the judicial bureau shall notify the district court that contempt proceedings should be commenced against the defendant.  If the defendant cannot afford counsel for the contempt proceedings in district court, the defender general shall assign counsel at the defender general’s expense.

(d)  Collections.

(1)  If an amount due remains unpaid for one year after the issuance of a notice of risk of suspension pursuant to subsection (b) of this section and the defendant has failed to appear at a judicial bureau contempt hearing, the court administrator may authorize the clerk of the judicial bureau to refer the matter to a designated collection agency.

(2)(A)  The court administrator or the court administrator’s designee is authorized to contract with one or more collection agencies for the purpose of collecting unpaid judicial bureau judgments.

(B)  The court administrator may authorize a collection agency to settle a judicial bureau judgment for less than the amount due and to retain a portion of the amount collected for its services.  The judgment amount shall be reduced in the judicial bureau records to reflect the settlement amount and the fee retained by the collection agency.  

(e)  For purposes of civil contempt proceedings, venue shall be statewide.

(f)  Notwithstanding 32 V.S.A. § 502, the court administrator is authorized to contract with a third party to collect fines, penalties, and fees by credit card, debit card, charge card, prepaid card, stored value card and direct bank account withdrawals or transfers, as authorized by 32 V.S.A. § 583, and to add on and collect a processing charge in an amount approved by the court administrator.

Sec. 5.  32 V.S.A. § 5932(8) and (9) are added to read:

(8)  “Court” means a superior court, a district court, or the judicial bureau.

(9)  “Judgment debtor” means any person who has not paid in full a court judgment for payment of a fine, penalty, surcharge, or fee due and payable to the state or a political subdivision thereof.

Sec. 6.  32 V.S.A. § 5941 is added to read:

§ 5941.  PROCEDURE FOR SETOFF OF COURT JUDGMENTS

(a)  The court shall include in any judgment a notice that any unpaid amounts shall be certified to the department for a setoff on the judgment debtor’s income tax refund, and the notice shall explain how the judgment debtor may challenge the certification.

(b)  Sections 5934(c) and 5936 of this title, relating to the procedure for contesting the debt, shall not apply to a court seeking information from a judgment debtor.

(c)  Notwithstanding section 502 of this title, the department may assess against the judgment debtor a collection assistance fee in an amount established pursuant to section 5938 of this title.

(d)  If a judgment debtor identified by the court clerk is entitled to a refund, the department shall retain the collection assistance fee and then transfer to the court in which the judgment was issued an amount equal to the refund owed or the amount unpaid, whichever is less.

Sec. 7.  13 V.S.A. § 2580 is added to read:

§ 2580.  FILM PIRACY

(a)  As used in this section:

(1)  “Motion picture theater” means a movie theater, screening room, or other venue that is being used primarily for the exhibition of a motion picture at the time of the offense.

(2)  “Recording device” means a photographic, digital, or video camera, or other audio or video recording device capable of recording the sounds and images of a motion picture or any portion of a motion picture.

(b)  No person shall knowingly operate a recording device in a motion picture theater for the purpose of recording a theatrical motion picture, while a motion picture is being exhibited, without the express written authority of the owner of the motion picture theater.

(c)  A person who violates subsection (b) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both.

(d)  A theater owner who has reasonable cause to believe that a person has recorded or is attempting to record a film in violation of subsection (b) of this section may detain the person on or in the immediate vicinity of the premises of the motion picture theater, affording the person the opportunity to be detained in a place out of public view, if available, in a reasonable manner which may include the use of reasonable force and for a reasonable length of time for any of the following purposes:

(1)  To request and verify identification;

(2)  To make a reasonable inquiry as to whether the person has in his or her possession a film or any portion of a film that the person recorded in violation of this section.

(3)  To inform a law enforcement officer of the detention of the person and to surrender that person to the custody of a law enforcement officer; and

(4)  In the case of a minor, to inform a law enforcement officer, and, if known or determined, a parent, guardian, or other person having supervision of the minor of his or her detention, and to surrender custody of the minor to the law enforcement officer, parent, guardian, or other person.

(e)  The owner or lessee of a motion picture theater shall post a public notice stating that knowingly recording a film without written permission from the owner or lessee is a criminal act under Vermont state law and may result in a fine or imprisonment, or both.  Notice shall be placed in a prominent and accessible location which can be seen easily by a person entering the theater.  Notice shall be posted on a sign with dimensions of at least 8‑1/2 inches by 11 inches.

Sec. 8.  4 V.S.A. § 1108 is amended to read:

§ 1108.  CIVIL ORDINANCE AND TRAFFIC VIOLATIONS;

               JURISDICTION OF ASSISTANT JUDGES IN ESSEX COUNTY

(a)  Subject to the limits of this section and notwithstanding any provision of law to the contrary, an assistant judge of Essex County sitting alone shall have the same jurisdiction, powers and duties to hear and decide civil ordinance and traffic violations as a hearing officer has under the provisions of this chapter.

(b)  Jurisdiction and venue of civil ordinance and traffic violations heard by an assistant judge shall be in the superior court in the county in which the violation is alleged to have occurred.

(c)(1)  An assistant judge who elects to hear and decide civil ordinance and traffic violations shall:

(A)  have served in that office for a minimum of two years;

(B)  have successfully completed at least 40 hours of training which shall be provided by the bureau; and

(C)  complete eight hours of continuing education every year relating to jurisdiction exercised under this section.

(2)  Training shall be paid for by the county, which expenditure is hereby authorized.  Law clerk assistance shall be available to the assistant judges.

(d)  An assistant judge who elects to hear and decide civil ordinance and traffic violations or who elects to cease hearing these matters, shall cause the court clerk to notify the bureau and each municipality in the assistant judge’s county of the judge’s decision.  Upon receipt of notification that an assistant judge elects to hear these matters, exclusive jurisdiction vests with the superior court and every complaint alleging a civil ordinance and traffic violation in that judge’s county which is denied, or which requires a hearing, shall be set for hearing before the superior court in the assistant judge’s county.

(e)  If both assistant judges elect to hear civil ordinance and traffic violations, the senior assistant judge shall make the assignment of cases to be heard by each assistant judge.

(f)  If both assistant judges do not elect to hear civil ordinance and traffic violations or elect to cease to hear these matters, civil ordinance and traffic violations in the county shall be heard in accordance with the provisions of this chapter.

(g)  An assistant judge may decline to hear a particular civil ordinance or traffic violation, in which case the violation shall be heard by a hearing officer of the bureau.

(h)  An appeal from a decision of an assistant judge shall be in accordance with the provisions of this chapter.

(i)  Civil ordinance and traffic violations that are heard by an assistant judge in Essex County shall be heard in Essex County and shall not be heard at or transferred to any other location.

(c)  The administrative judge may assign or direct assignment of an assistant judge with his or her consent to hear a civil ordinance or traffic violation case within the county in which the assistant judge presides or in a county other than the county in which the assistant judge presides if the assistant judge has elected to hear and decide civil ordinance and traffic violations under this section.

Sec. 9.  12 V.S.A. § 5540a is amended to read:

§ 5540a.  JURISDICTION OVER SMALL CLAIMS; ASSISTANT JUDGES;

               ADDISON, BENNINGTON, CHITTENDEN, FRANKLIN, GRAND

               ISLE, LAMOILLE, ORANGE, ORLEANS, WASHINGTON,

              WINDHAM, AND WINDSOR COUNTIES

(a)  Subject to the limitations in this section and notwithstanding any provision of law to the contrary, assistant judges of Addison, Bennington, Chittenden, Franklin, Grand Isle, Lamoille, Orange, Orleans, Washington, Windham, and Windsor counties sitting alone, shall hear and decide small claims actions filed under this chapter with the appropriate superior court if the assistant judges first elect to successfully complete the training required in subsection (b) of this section.

(b)  With the exception of assistant judges authorized to preside in small claims matters prior to the effective date of this act who have successfully completed the testing requirements established herein, an assistant judge hearing cases under this section shall have completed at least 100 hours of relevant training and testing, and observed 20 hours of small claims hearings in accordance with the protocol for said training and observation which shall be established by a majority of the assistant judges of the state, which shall include attendance at colleges or classes available in various locations in and outside the state to lay judges.  An assistant judge who hears cases under this section shall complete 16 hours of continuing education every year relating to jurisdiction exercised under this section.  Training shall be paid for on a per capita basis of those judges electing to take the training by the county, which expenditure is hereby authorized.  Law clerk assistance available to superior court judges shall be available to the assistant judges.

(c)  A decision of an assistant judge shall be entered as a small claims judgment and may be appealed pursuant to section 5538 of this title.  The appeal shall be decided by the presiding judge.

(d)  An assistant judge upon successful completion of the training under subsection (b) of this section, shall cause the superior court clerk to notify the court administrator of the assistant judge’s successful completion of training.  Upon receipt of such notification, small claims cases which require a hearing shall first be set for hearing before an assistant judge in the superior court in the county and shall be heard by the assistant judge.  If the assistant judge is unavailable due to illness, vacation, administrative leave, disability or disqualification, the administrative judge pursuant to section 22 of Title 4 may assign a judge, or appoint and assign a member of the Vermont bar to serve temporarily as an acting judge, to hear small claims cases in Addison, Bennington, Chittenden, Franklin, Grand Isle, Lamoille, Orange, Orleans, Washington, Windham, and Windsor counties the case.  No action filed or pending shall be heard at or transferred to any other location unless agreed to by the parties.  If both assistant judges of the county elect to successfully complete training to hear these matters, the senior assistant judge shall make the assignment of cases to be heard by each assistant judge.  The assistant judges, once qualified to preside in these matters, shall work with the court administrator’s office and the administrative judge such that the scheduling of small claims cases before the assistant judges are at such times as to permit adequate current court personnel to be available when these cases are heard.

(e)  This section shall be repealed effective on July 1, 2008.

Sec. 10.  REPEAL

4 V.S.A. § 22(d) and 12 V.S.A. § 5540 are repealed.

Sec. 11.  ESTABLISHMENT OF POSITION

One permanent position – collections manager – is established within the Judiciary.

Sec. 12.  EFFECTIVE DATE

(a)  Secs. 1, 2, 3, 7, 8, 9, 10, and 11 of this act shall take effect on passage.

(b)  Secs. 4, 5, and 6 of this act shall take effect on September 1, 2006.

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us