Month: July 2017

What to expect in a Vermont DUI prosecution

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Part 2  of the series on the Vermont DUI Process

Following the DUI investigation and the receipt of a citation, which tells you the date and time of the initial hearing on a DUI, the case turns from an investigation, into a prosecution.  For Vermont DUIs, the initial hearing is termed as an arraignment, which essentially means that it is the starting point of where the police officer’s work concludes and the Vermont State’s attorney’s work begins.  This article will touch on the basics of the formal process and give defendants a general idea of what to expect while their Vermont DUI winds its way through the court system.

Arraignment

The arraignment is where the defendant and their attorney are provided with the initial paper work (i.e. evidence) that supports the charge.  Affidavits from police, criminal background checks of all witnesses and other supporting documents are customarily produced at this hearing.  This packet of information does not constitute all of the evidence that the prosecution may rely on, but it serves as a good starting point for a defendant to understand what facts are being alleged and by whom.

After having time to review this information, the defendant and his/her counsel will appear before the judge and enter their plea to the charge.  If a not-guilty plea is entered, the judge will set a time for the parties to return to court and may also issue conditions that the defendant will need to comply with during the pendency of the case.  These conditions can range from informing your attorney of a change in address and coming to court when your told to do so, to checking in on a daily basis to a local police station to be subject to a breathalyzer.  The severity of the condition will be heavily dependent on the defendant’s personal circumstances and their prior criminal history.

The Discovery Phase

The 60-90 days between hearings affords both sides to the case time to review the evidence and request that additional information be provided, such as police video tapes, expert reports and other evidence that either supports or refutes the allegations.  This is also the time that motions to suppress evidence or dismiss the case can be filed.  If a motion is filed, the Court can either rule based on the motion itself, or set the matter for a hearing.  If a hearing is set, this will likely push back the date of the calendar call or pre-trial conference until after the motion has been ruled on.

Pre-Trial/Calendar Call

After all legal issues are settled and, if the case has not been dismissed, the pre-trial/calendar call represents a chance for the state and defendant to come together to see if a resolution can be reached.  This hearing can last several hours as there are numerous cases that are heard during the same time block.   It is not an ideal situation for any defendant to be place in a crowded court room while they wait for their attorney to report to them the substance of their discussions with the State.

If it is clear however, that a deal will not be reached at this hearing, a lot of time can be saved if it is reported to the judge early on that the case should be scheduled for its next hearing.  This will allow the defendant to leave the courthouse and for discussions between the State and defense counsel to occur off the record at another time.

Final Jury Call/Final Calendar Call

This hearing, in theory, is the last chance for a defendant and the state to reach an agreement before a jury is drawn and a trial occurs.  In reality, given the court schedule and the backlog of cases waiting for trial, the first final jury call/final calendar call will likely not be the last chance, to settle a case before a jury is draw.  In similar fashion to the pre-trial conference/calendar call, a defendant’s case will be one of many heard that day and again may entail a lot of waiting while the state’s attorneys meet with defense attorneys and self-reporesented individual to discuss settlement.

Settlement or Trial

If the Vermont DUI case is not dismissed, there will come a time in the prosecution where  the defendant will need to choose between settling the case or  trial.  Regardless of what advice a Vermont DUI attorney gives, the ultimate choice on whether to settle or go to trial falls on the shoulders of the defendant.  Depending on the court calendar and the facts of the case, a defendant  may have up to a year before they are forced to make this decision.  However, when and what decision to make will fall solely on the individual facts of the case and the final determination by the defendant.

 

 

What to expect in a Vermont DUI investigation

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For many facing a DUI first offense, this experience is the first time they have ever come into serious contact with law enforcement.  If arrested for a DUI-first offense in Vermont the initial handcuffing and ride in the back of a police cruiser certainly is enough to scare most otherwise law abiding citizens straight.  However, the initial contact with law enforcement, the roadside field sobriety tests and the breathalyzer submitted on the roadside are only the first steps in what can be a multi-hour process that constitutes the DUI-first offense investigation process in the State of Vermont.

The Processing

Once arrested, a defendant will be brought back to the arresting agencies barracks, where they will be submitted to a lengthy processing.  It is at this stage where many officers will shore up the evidence in their case, and it is where many defendants, mostly due to their unfamiliarity with the process, will end up incriminating themselves and thus reducing or eliminating all together the potential legal defenses they may have to the charge.

Miranda Rights

The first step in the processing is for the officer to issue the all too famous Miranda warnings, informing the defendant of their rights prior to interrogating them.  To boil down the rights afforded to defendants pursuant to the landmark Miranda v. Arizona case of 1966, it was found that:

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination. Pp. 444-491.

Simply put, if a Defendant is taken into custody they do not need to answer questions and cannot be punished due to their exercising this right.

In most Vermont DUI-first offense cases, the defendant wishes to be cooperative because they think they can curry favor with the officer and maybe handed a break.  There is a difference between being polite and courteous to the officer and being cooperative.  Certainly officers deserve a defendant’s courtesy however, they do not deserve a defendant’s cooperation.  A simple, “I would like to exercise my right to remain silent sir” achieves both purposes after an officer reads Miranda and protects the Defendant from providing evidence that will affect the outcome of their case later on.

Implied Consent

Officers are required to read from a prepared statement a defendant’s implied consent rights under the Vermont DUI statute (Title 23).  These rights inform the defendant of their right to either refuse or submit to a breath test at the station and the consequences of each decision.  For most officers, the breath test is the defining evidence in a Vermont DUI investigation and thus choosing to submit or refuse to a datamaster test may be the biggest decision the defendant makes.

Exercise right to consult with an attorney

Before deciding to either take or refuse a breath test, a defendant has a right to consult with an attorney of their choosing or with an on call public defender.  CONSULTING WITH AN ATTORNEY PRIOR TO DECIDING ON WHETHER TO TAKE THE BREATH TEST IS CRUCIAL BE SURE TO EXERCISE THIS RIGHT!

An experienced attorney can go through the evidence that the officer currently has and can give sound advice as to whether the breath test may help or hurt the defendant in their defense of the charge and what risks are being run for either determination.  Further, the attorney can go back through the implied consent rights to ensure the defendant understands them fully so they can make an educated decision based on the entire picture.

Notice of Intent to Suspend 

If a defendant submits to the breath test and the reading is above a .08 of if the defendant refuses to submit to the test, the officer will issue defendant with a notice of intent to suspend.  This is a form that carries a white and yellow copy.  A DEFENDANT HAS 7 DAYS TO REQUEST a hearing on the license suspension.  If they do not, their right to operate a motor vehicle in Vermont will be suspended on a date certain that is defined in the notice.  It is important for a defendant to preserve their right to a hearing on the civil suspension and thus, sending in the request immediately after being released is a crucial element of the DUI process

Citation

After the processing is complete, an officer will issue a defendant a citation to appear in court.  This gives the date and time and location of where the initial court hearing will take place.  In many cases this arraignment is held during the middle of the working week and can pose significant issues to the defendant, especially if they live far from the courthouse.  Seeking a waiver of one’s personal appearance is not out of the question if the defendant engages an attorney prior to the arraignment date.  This attorney in many cases can seek court approval for the attorney to appear in defendant’s stead, thus relieving the defendant from taking a day off of work to make the trip for what is a relatively brief initial hearing.

In the next post, we will discuss the actual prosecution of the DUI case, the timelines associated with the court process and a discussion on what potential outcomes may arise based on the facts of the case.