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BILL AS PASSED BY HOUSE 2007-2008

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H.599

AN ACT RELATING TO BOATING WHILE INTOXICATED AND DRIVING WHILE INTOXICATED

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

Sec. 1.  LEGISLATIVE INTENT

It is the intent of the general assembly in this act to address, among other issues, the Vermont supreme court’s decisions in State v. LaBounty, 2005 VT 124, and State v. Martin, 2007 VT 96.  In LaBounty, the court held that if more than one person was injured,an offender could be charged with only one count of grossly negligent operation of a motor vehicle with injury resulting.  Similarly, the court held in Martin that if more than one person was killed, an offender could be charged with only one count of boating while intoxicated with death resulting.  In this act, the general assembly responds to Martin and LaBounty by amending several motor vehicle statutes to permit an offender to be charged with a separate count of violating the statute for each person who was killed or injured as a result of the offense.

Sec. 2.  23 V.S.A. § 1091(b) is amended to read:

(b)  Grossly negligent operation.

(1)  A person who operates a motor vehicle on a public highway in a grossly negligent manner shall be guilty of grossly negligent operation.

(2)  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.

(3)  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 person shall be imprisoned for not more than 15 years or fined not more than $15,000.00, or both.  If serious bodily injury or death results to more than one person other than the operator, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

Sec. 3.  23 V.S.A. § 1133 is amended to read:

§ 1133.  ATTEMPTING TO ELUDE A POLICE OFFICER

(a)  No operator of a motor vehicle shall fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer:

(1)  displaying insignia identifying him or her as such; or

(2)  operating a law enforcement vehicle sounding a siren and displaying a flashing blue or blue and white signal lamp.

(b)(1)  A person who violates subsection (a) of this section shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.

(2)(A)  In the event that death or serious bodily injury to any person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator shall be imprisoned for not more than five years or fined not more than $3,000.00, or both.

(B)  If death or serious bodily injury to more than one person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

(c)  In a prosecution under this section, the operator may raise as an affirmative defense, to be proven by a preponderance of the evidence, that the operator brought his or her vehicle to a stop in a manner, time, and distance that was reasonable under the circumstances.

* * *

Sec. 4.  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; 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.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

* * *

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

§ 1210.  PENALTIES

* * *

(e)(1)  Death resulting.  If the death of any person results from a violation of section 1201 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.

(2)  If the death of more than one person results from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(f)(1)  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 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.

(2)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured.

* * *

Sec. 6.  23 V.S.A. § 3317 is amended to read:

§ 3317.  PENALTIES

* * *

(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.

(f)(1)(A)  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 less than one year nor more than five 15 years or fined not more than $2,000.00 $10,000.00,or both; but the provisions of this section shall not be construed to limit or restrict prosecutions for manslaughter.

(B)  If the death of more than one person results from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(2)(A)  Boating while intoxicated; serious bodily 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 3323 of this title, the person convicted of the violation shall be fined not more than $5,000.00 or imprisoned not more than 15 years, or both.

(B)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured. 

* * *

Sec. 7.  23 V.S.A. § 3323 is amended to read:

§ 3323.  OPERATING UNDER THE INFLUENCE OF INTOXICATING

               LIQUOR OR DRUGS; B.W.I.

(a)  A person shall not operate, attempt to operate, or be in actual physical control of a vessel on the waters of this state while:

(1)  there is 0.08 percent or more by weight of alcohol in his or her blood, as shown by analysis of his or her breath or blood; or

(2)  under the influence of intoxicating liquor; or

(3)  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 operating safely.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us