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.
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.
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.
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
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.