Month: January 2016

Expungement made easier by new Vermont law

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Lawmakers recently passed a new law allowing young criminal offenders a pathway for faster relief to get out from under the long term consequences of certain criminal convictions.  During the 2015 legislative session a bill was passed that now allows those convicted of a crime while 25 years old or younger to petition the Court for expungement of their criminal record after 5 years has passed for certain offenses.

The bill received wide spread support in Montpelier as lawmakers recognized the long lasting effects a criminal conviction can have on young peoples ability to secure meaningful employment and further their educational goals.

Although the law allows for expungement in non-violent misdemeanor level offenses (convictions that carry 2 years or less of potential jail time), there are still a large number of offense that stay outside the purview of the law, such as felony drug possession offenses that could be in the cross hairs of lawmakers if marijuana legalization occurs in the State of Vermont.

However, for those young individuals convicted of offenses such as DUI-first, Excessive Speed, Gross Negligent Operation,Possession of small amounts of marijuana, cocaine, heroin or other drugs, the time for relief may be now.

 

Smell of marijuana may not be enough for search of vehicle in Vermont

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With the passage of Act 76 in the State of Vermont, decriminalizing possession of under 1 ounce of marijuana, questions have been raised as to whether or not the discovery of such an amount can still give a basis for law enforcement to search a motor vehicle.  Without owner consent, Vermont law enforcement need to meet a probable cause of criminal wrongdoing in order to receive approval from a judge for a search warrant.  Thus, given that possession of small amounts of marijuana is now considered a civil infraction, similar to a speeding ticket, challenges are beginning to surface in Vermont and surrounding states as to the lawfulness of warrants issued on a violation of ACT 76 alone.

Although the law is clear that for civil violations, officers may not detain motorists for a time that would exceed the normal time for issuing a traffic ticket, law enforcement continues to challenge this rule by attempting to expand the scope of their investigation when they claim to smell a strong odor of burnt marijuana.  However, some recent cases against search and seizure have arisen recently in Massachusetts, one most notably in      COMMONWEALTH vs. MATTHEW W. OVERMYER, which states “In sum, we are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine. In the absence of reliability, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana, whether burnt or unburnt.”

Thus, with the increasing number of drugged driving arrests occurring on Vermont roads, and the legalization of marijuana possession in the forefront of the Vermont legislature, it is reasonable to conclude that a substantial amount of grey area continues to exist in prosecuting such cases that can only be clarified through litigation in the Vermont County court system.

The battle over the saliva test in Vermont drugged driving

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Vermont lawmakers continue to struggle with finding the correct balance in prosecuting motorists who may be under the influence of marijuana or other drugs while operating a motor vehicle.  Vermont law enforcement has claimed that there is a saliva test that can be implemented in order to prove that a motorist has marijuana in their system.  However, what lawmakers continue to struggle with is determining whether that detection alone, satisfies the DUI statute, which states that the presence of the drug must effect the motorist’s ability to operate their motor vehicle safely.

In an effort to address the vague nature of the current DUI-drugs statute, the Vermont legislature introduced a bill in 2014 that lowered the standard of proving a Drugged Driving charge by being able to prove that the operator was under the influence to “the slightest degree”.  However, several lawmakers in the Judiciary Committee, including Chair, Jeanette White: D-Windham County, stated that this standard cast the net too wide.

In an effort to compromise, language to the bill was introduced that would allow someone to be arrested for Drugged Driving if prosecutors could show that drug use “interferes with safe operation of a vehicle in the slightest degree.”.

If this language is in fact adopted, it still remaining unclear exactly how law enforcement will be able to detect this level of impairment beyond the flawed Drug Recognition Expert (DRE) standard that they have used to this day.  John Flannigan, a Lieutenant with the Vermont State Police, has stated that a roadside saliva test may in fact be the answer to this question.

Flannigan’s argument is that the saliva test, which is able to detect the presence of certain drugs, including marijuana, along with the DRE testimony, would be sufficient to show impairment.

However, even with this additional evidence, under the revised drugged driving bill, law enforcement would still need to show that the motorist’s impairment “slightly” effected their ability to operate a motor vehicle safely.  Although the saliva tests and DRE testimony may be sufficient to arrest an individual, much remains to be seen if these charges can actually stick when individual cases maker their way through the Vermont Judicial system.

 

 

What is a Vermont DRE?

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DRE stands for drug recognition expert.  It is an attempt by Vermont law enforcement to combat the growing concern of individuals driving a motor vehicle while under the influence of marijuana or other drugs, which is otherwise known as Driving While High (DWH).  Here is how it works.

A motorist will get pulled over by law enforcement and during their initial interaction, law enforcement will note that they recognize certain clues of impairment (blood shot eyes, confusion, seating, nervousness etc..)  Based on these observations, the officer will inquire if the motorist has consumed any alcohol or drugs recently.  If the motorist admits to some form of consumption of drugs, the officer may, along with their observations, have enough evidence to perform certain tests aimed at detecting drug impairment.

In order to perform these tests, an officer needs to have specialized training that certifies them as a DRE.  Although prosecutors have attempted to enter DRE testimony into evidence at trial, there is still substantial question as to whether the training the officers have received is sufficient to qualify them as an expert and whether their testimony alone is sufficient to uphold a conviction for DWH.

According to the Governor’s Highway Safety Program, there are currently 35 officers across the State of Vermont that have been certified as a Vermont Drug Recognition Expert, with the aim of having an increased number of officers take the two day training each year.  The  additional training offered to law enforcement is beginning to see dividends for enforcing DWH laws as in 2014 it was reported that officers conducted 214 evaluations, a steady increase from previous years.

With marijuana legalization making its way through the Vermont legislature and additional tools being added to the arsenal of Vermont law enforcement, motorists will need to become increasingly cautious as to their driving if they have ingested drugs or alcohol recently. It appears that Drug Recognition Experts are only one small part of a significantly wider net law enforcement will be casting when they commence a DWH or DWI investigation that could ensnare many motorists who do now know the DWH laws in the State of Vermont.

 

 

What type of insurance hit can I expect from a Vermont moving violation

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The fine and the points associated with a traffic ticket only tell a small part of the total monetary story.  The financial consequences of a Vermont moving violation can encompass much more then the fine itself.  One of the biggest concerns for motorists is what type of rate increase they should expect from their auto insurance if their carrier catches wind that the motorist has been convicted of a Vermont DUI or moving violation.

According to a report written by Bankrate.com a  single speeding ticket alone can carry with it between a 19-23% hike in insurance rates.   While a DUI carries with a 93% hike, while reckless driving such as texting while driving can bring with it rate increases as much as 82%.

What is even worse for those with less the pristine driving records is that if you add up a few of these violations, many insurance companies will refuse to even offer you insurance.

Based on the real and substantial consequences of even the most benign of traffic violations, it is important for motorists to calculate what the actual cost of that Vermont DUI, speeding ticket or reckless driving conviction could bring before determining whether or not it is worth the effort and expense of fighting it in the hopes of mitigating or eliminating the collateral consequences.