In need of advice for your Vermont traffic ticket, DUI or other traffic related matter over the July 4th holiday? Call our office at 802-257-7161 to receive the advice you need as quickly as you need it.
In need of advice for your Vermont traffic ticket, DUI or other traffic related matter over the July 4th holiday? Call our office at 802-257-7161 to receive the advice you need as quickly as you need it.
Alcohol is a naturally occurring chemical which is a byproduct of an organic process. As we put organic substances together and they break down, various chemicals are left behind. Similarly, the fermentation process happens naturally in nature as leaves and organic material compost and create a changed substance. Byproducts of this process are substances such as Nitrogen, Hydrogen Sulfide and other ammonia-like substances. It happens in controlled environments as well, such as when we brew beer or wine. Inside the human body, a physiological process which allows us to use organic material for fuel, also leaves behind a variety of chemicals as byproducts. These chemicals differ depending on our diet, exercise level and certain factors in our genetic makeup that differentiate how we metabolize our fuel. One of the byproducts that has been gaining exposure in social media recently are Ketones. These are created in the body as an alternative form of fuel when glucose is unavailable due to certain processes in the body of a type 1 diabetic, or those on a low carb or very low calorie diet. When the body uses ketones as fuel, one of the byproduct of this process is acetone. Acetone can be further broken down in the body to Isopropanol. A form of alcohol which can be detected in our breath.
There have been court cases in which this process has been used as a defense when the defendant was a type 1 diabetic and had high levels of ketones in their blood, which therefore were producing this effect where acetone or potentially Isopropanol was detected in the breathalyzer test causing a false positive. “If ketoacidosis develops, the diabetic person may experience a myriad of symptoms including dry-mouth or fruity breath odor, and keytones on the breath could theoretically register as ethyl alcohol on BAC breath tests. Brick, Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study, 9(1) Alcohol, Drugs and Driving (1993). In Michaels v. State ex rel. Dep’t of Transp., the defendant, a type 1 diabetic, claimed his blood-alcohol levels may have been affected by ketoacidosis. 2012 WY 33, ¶ 8, 271 P.3d 1003, 1006 (Wyo.2012).” Supreme Court of Wyoming. ANDERSON v. The STATE of Wyoming, 2014.
There are other circumstances where this chemical process will happen in the body of people without a diagnosis of type 1 diabetes. Diets that are very low carb or no carb “ketogenic” diets, which are rapidly becoming a norm for use in weight loss can trigger this same chemical reaction in the body, producing a buildup of ketones (or ketoacidosis) leaving byproducts that look like alcohol to a breathalyzer machine. “The National Highway Traffic Safety Administration (NHTSA) in the USA has found that dieters and diabetics may have acetone levels which are hundreds and even thousand of times higher than those in others. Acetone is one of the many substances that can be falsely identified and measured as ethanol by some breathalyzer machines.” Tazhmoye V., Crawford Donovan, A. McGrowder, Joan M. Rawlins: An assessment of falsely convicted type 1 diabetics in Jamaica by using the breathalyzer test, 2011.
Low calorie diets that may still utilize carbs for fuel can also cause this process, (Very Low Calorie Diet) “VLCD treatment leads to ketonemia with high concentrations of acetone, acetoacetate and beta-hydroxybutyrate in the blood. The interlock device determines alcohol (ethanol) in breath by electrochemical oxidation, but acetone does not undergo oxidation with this detector. However, under certain circumstances acetone is reduced in the body to isopropanol by hepatic alcohol dehydrogenase (ADH)”. Int J Obes (Lond). 2007 Mar;31(3):559-61. Epub 2006 Aug 8.False-positive breath-alcohol test after a ketogenic diet.Jones AW1, Rössner S.
Based on the factors above which highlight the possibility for the human body to naturally produce certain chemicals that would be mistaken for ethanol in a breathalyzer test, one might conclude that with a growing population struggling with an obesity epidemic, an increasing amount of people adopting a low carb or no carb, “ketogenic” diet, and he possibility of an extreme low calorie diet as a result of poverty, that the incidents of false positive breathalyzer tests in defendants who have consumed under the legal limit of alcohol, (or no alcohol at all) but may present with this metabolic picture, could be greater than law enforcement take into account. That being said, there is no reason to trust a breathalyzer as the only evidence that a driver was intoxicated. A defense attorney, who practices in DUI should take into account the variety of physiological factors that have been scientifically tested more recently, which may indicate an error in the current system for testing a driver’s BAC on the roadside.
Michael was unfamiliar with the rural Vermont road he was traveling on. On his way to play some football in northern Vermont with a friend, Michael choose to make a pit stop off of exit 5 on the heavily traveled Interstate 91.
According to police affidavits, Michael was pulled over for staying in the passing lane as he approached the onramp to I-91. The officer who pulled him over, a local sheriff’s deputy, stated that he could smell marijuana coming from the car. Michael admitted to the officer that he was in possession of under an ounce and he handed over the marijuana to the officer.
What could have resulted in a traffic ticket and a fine, turned into a criminal investigation due to the officer suspecting that Michael may be under the influence of marijuana.
Michael was subject to standard alcohol based field sobriety tests, and a roadside breath test, which showed that Michael had no alcohol in his system.
Instead of letting Michael go, the officer arrested him, alleging that he had probable cause to believe that Michael was under the influence of marijuana. Attempts were made to contact a specially trained Drug Recognition Expert, whose 12 step evaluation is used to issue an opinion on whether a motorist is under the influence of drugs. No such DRE was available to evaluate Michael on this evening.
Michael was subsequently lodged at the Southern State Correctional Facility, where he was released several hours later after being able to post bail. Michael’s name and details of his arrest were released to the media and he was issued a citation to appear in court.
Michael hired an attorney and he plead not guilty. Several months later, the State dismissed all charges against him.
Marijuana and Driving
Michael’s arrest illustrates the significant grey area surrounding marijuana use and its effect on operating a motor vehicle. State legislators across the country are grappling with marijuana based DUIs as legalization for both medical and recreational use continues to gain momentum.
Currently 29 States have legalized medical marijuana use, while 9 States have enacted laws legalizing recreational use, with three; California, Massachusetts and Vermont enacting legalization that will take effect in 2018.
According to a recent Rand report, which was commissioned by Vermont lawmakers, household surveys found that 12 percent of Vermont’s population ages 12 and older— and nearly 30 percent of those ages 18 to 25—reported using marijuana in the past month. “We have seen statistically speaking a slight rise in marijuana consumption over the last 15 years,” stated Ben Hansen, an economist with the University of Oregon who has conducted extensive research in the Marijuana market. “Meanwhile, tobacco and alcohol sales have been plummeting during that same time period.”
Proving a Marijuana DUI
The changing legal landscape has placed an urgency on developing reliable investigative criteria for Law Enforcement in order to support an arrest on suspicion of an operator operating under the influence of marijuana.
Vermont Bill H.501, which amended the drugged driving statute in 2013, gave law enforcement significant leeway in making arrest determination. Instead of requiring law enforcement to prove that the operator was “under the influence to a degree that renders the person incapable of driving safely”, lawmakers amended the language to only require that law enforcement prove the operator was “under the influence to the slightest degree”, which is the same standard used to charge individuals of driving under the influence of alcohol.
Lt. John Flannigan, the Drug Evaluation and Classification Coordinator for the State of Vermont, stated that the amendment has given additional power to law enforcement, that allows for the same standard to be used for all substances. “There is no set criteria for law enforcement to reach a conclusion of impairment,” stated Flannigan, “There is no magic number of clues, in order to make an arrest, an officer must look at the totality of the circumstances”
The totality of the circumstances noted by Flannigan equates to the finding of Probable Cause which is necessary for a citizen to be arrested for suspicion of a committing a criminal offense. The Vermont Supreme Court in the 2005 case of State v. Goldburg found that probable cause exists when the affidavit sets forth such information that a judicial officer would reasonably conclude that a crime had been committed …” (internal citations omitted).
Much of the fact finding to support a reasonable conclusion of criminal activity falls on the shoulders of the 52 Drug Recognition Experts located within Vermont, commonly referred to as DREs. “We want to make sure that we provide specialized service to every corner of the State,” stated Lieutenant Flannigan. “We still have areas of need in the state and we are looking to fill those holes.”
Flannigan has acknowledged the evidentiary hurdles law enforcement face when investigating drugged driving cases as many of these cases hinge not only on the DRE opinion but also the results of blood tests, which can be taken several hours after a traffic stop, and analyzed several weeks after the arrest. “It is very difficult and inefficient to get a timely sample of blood for a drugged driving case,” stated Flannigan. “We are looking at other bodily fluids that are less invasive such as the saliva test, which a lot of states appear to be moving towards.”
State legislators have begun to take steps to incorporate a roadside saliva test into Marijuana based DUIs. The bill just recently was passed by the House of Representatives.
Although the Bill is meant to address some of the concerns associated with blood tests, the 2017 National Highway Transit Safety Association (NHTSA) report to Congress on Marijuana based DUIs has found “that saliva does not appear to an an accurate and reliable predictor of impairment from THC.”
Flannigan argues however that these tests are merely used to confirm drug use, which taken with the other observations of a DRE are useful in establishing a case for drugged driving.
“Blood and saliva tests are excellent at identifying the drug that is causing impairment, but there is not a correlation between blood or saliva concentration and drug impairment”, stated Dr. Marilyn Huestis, former Chief of Chemistry and Drug Metabolism at the National Institute of Drug Abuse Intramural Research Program. Her research documented that small amounts of THC can be detected in chronic frequent cannabis users up to 30 days after last use. “There is no blood THC cutoff concentration that documents marijuana impairment in occasional and frequent cannabis users”, “For the occasional user, THC is out of the blood in 6-8 hours, but with the frequent user, THC can be stored for longer periods of time in fat tissue. Having THC in the blood in the occasional user means recent use, but in the chronic user, it may not represent recent cannabis use. For this reason, I feel it is important to document impairment by a trained police officer or other witness, and then test a biological fluid (either blood or preferably oral fluid or saliva, to indicate which drug is producing the impairment.”
Marijuana and Crash Risk
The 2017 NHTSA report found that there are contradictions in the science based studies that have evaluated marijuana use and the risk it may impose on being involved in a motor vehicle crash. Some scientific reports have found “minimal or no effect on the likelihood of crash involvement, while others have estimated a doubling in the risk of crash involvement.”
Hansen has stated that these conflicting findings may be due to the reduced risk taking behavior that those under the influence of marijuana partake in when operating a motor vehicle. “There is limited evidence on the crash risk of marijuana influenced individuals,” stated Hansen. “What has been found is that there is a difference in risk adversity, where with alcohol you see an increase and in marijuana you see a reduction.”
Due to the limited scientific evidence, NHTSA has acknowledged that there is no set standard for marijuana impaired driving and thus, the onus for arrests falls solely on the shoulders of law enforcement. “In 1908 the Model T was released, in 1910 we had our first drunk driving studies, the first quantification of DUI a level was in 1927 and the first drunk meters were constructed in 1938,” stated Hansen. “However, with marijuana DUIs, we are currently stuck in the 1920s scientifically.”
One of the first questions that law enforcement will ask when they discover someone under 21 years of age in possession of alcohol is how they were able to secure the alcohol in the first place. None of the standard answers to this question will lead to a good result.
Social Hosting of underage drinking party-7 VSA § 658-Maximum penalty of 2 years in prison and a fine of $2,000 or both.
If adults have chosen to allow underage individuals consume alcohol at a premises in which they control, the adults may be liable for facilitating the consumption and be subject to the criminal penalties as set forth above.
The statute defines enabling as creating a “direct and immediate” opportunity for individuals under 21 years of age to consume alcohol. This can be the result of directly providing alcohol to an individual under 21 years of age or allowing the use of a venue that is controlled by the adult where underage consumption is permitted.
Serious bodily injury or death resulting from violation of 7 VSA § 658
In the event that a minor hurts themselves or someone else while operating a motor vehicle under the influence of alcohol, the adults facilitating the alcohol consumption may be subject to a felony charge that carries with it up to 5 years in prison.
The key element in any enabling violation is determining whether the adult knew or should have know that alcohol was going to be consumed. This charge in many instances is brought as a result of an adult agreeing to host a party for minors where alcohol is present. The adult in charge can not plead ignorance that alcohol was present if they were in charge of securing and providing the residence or facility to those under 21 years of age. However, if there are circumstances that would place into doubt the knowing element, such as the assignment of the rights to the premises to another adult, doubt may be cast as to the culpability of the individual charged.
Vermont’s move over law provides for a five point penalty if a motorist is found to have failed to”proceed with caution, and, if traveling on a four-lane highway, and safety conditions permit, make a lane change.” A recent operation by the Vermont State Police tested out the frequency of violations of this law when they set up a specialized operation on Route 7 in Bennington.
The operation had two cruisers setup in the breakdown lane, one with its emergency lights activated to simulate a traffic stop. In two hours, police initiated 17 stops for alleged violations. Sgt. Turner of the Vermont State police stated that the area in which the stops were made along route 7 was a three lane highway, which gave cars the ability to move into the passing lane.
It is curious however, as to whether these stops were in fact a violation of the statute, as Route 7 is not a four lane highway. In order to uphold the charge in court, the officer would have to show that the operator was not proceeding with caution when they passed the officer, certainly a subjective standard that is up for individual interpretation.
The National Highway Transit Safety Association (NHTSA) recently released a report to Congress outlining the research they currently have on Marijuana use and its effect on driving. In sum, the report found that the effects marijuana have on driver’s ability to operate safely is unsettled. In fact, there is some research out there that shows that those impaired may in fact operate their vehicle in a more careful manner then when sober or under the influence of alcohol. Here are five takeaways from this report.
1) THC levels found in blood do not equate to a level of impairment: One of the major tools used by law enforcement is the blood draw. This can provide concrete proof that a motorist has used marijuana in the past. However, it is stated several times over in the report, that the science does not support a level of impairment based on the THC level alone. In fact, low levels of THC can be found in the blood for up to 30 days after use, which makes it difficult to equate a THC level with a level of impairment.
2) Some tests have shown that those under the influence of marijuana drive more carefully then those who are sober. An interesting study was released in 2015 that marijuana may in fact mitigate risky driving by those under the influence of alcohol. It further found that those under the influence of marijuana tended to drive slower and at farther distances from a vehicle in front of them.
3) Specific cues of marijuana impairment are not available to detect impairment with reasonable certainty: NHTSA has admitted that unlike with alcohol, law enforcement cannot point to a series of standardized evidentiary cues that can per-se, lead them to a conclusion marijuana impairment.
4) Marijuana’s role in causing crashes is “less clear”: NHTSA has admitted in their report that it is difficult to correlate the cause of crashes due to marijuana impairment. The hurdles to show that marijuana impairment does in fact increase the risk of a crash are the same in which NHTSA acknowledged with regards to THC levels in the blood (i.e. they do not equate to a level of impairment). Further, the presence of THC in the blood for 30 days, skews any data they may have that states that marijuana impairment was in fact the cause of the CRASH.
5) Impairment Curve of Marijuana is sudden: With alcohol, there has long been established a BAC curve, that shows how alcohol is processed. Customarily, a peak BAC is reached 20 minutes after the last drink has been consumed. With marijuana, it is much more difficult to calculate. According to NHTSA, peak impairment occurs immediately after smoking and drops significantly thereafter. This curve is heavily dependent on the user, as those who are regular consumers may show far less signs of impairment even after consuming large doses then those who use less consistently.
The overall takeaways from this Marijuana report, is that much is still to be learned about the effects of Marijuana and driving. Despite this significant gap in knowledge however, one thing was made crystal clear by NHTSA’s report. They want to see more Drug Recognition Experts trained and on Vermont roads. This, with the impending legalization bill, will likely result in an increase in Vermont DUI-Marijuana arrests, despite the evidence that supports these arrests remaining unsettled.
One of the first questions that officers will ask you when they approach your vehicle is whether you know why they pulled you over. This question is set up in a way that many motorists may feel like they must answer. It is this initial statement, in most cases merely meant as a way to be cooperative with the officer, that can be later introduced in court and can be difficult to defend against. Judges have found that these statements are voluntary and admissible, which means that even if all the other facts contradict the issuance of a Vermont traffic ticket or criminal citation, this statement alone can be enough to uphold a conviction. A few tips for the roadside questioning are as follows:
Most motorists put in the position of interacting with an officer on the roadside can be an intimidating and daunting task. Of course we want to be polite to the officer, who is just doing their job, but we also do not want to make turn this cooperation into a full blown confession, which can only go to hurt your case in the event this interaction turns into a full blown arrest or the issuance of a Vermont traffic ticket.
In furtherance of advancing his proficiency in DUI defense, Vermont DUI attorney Evan Chadwick recently received advanced level training on defending against hospital blood tests which are often secured by law enforcement during their DUI-drug and accident based DUI-alcohol investigations.
“Reviewing every aspect of the blood draw and analysis is a key component to defending DUI offenses”, stated Attorney Chadwick. “The science and law behind these analysis are constantly evolving and we, as attorneys, need to stay ahead of the curve so that we can better understand the science that supports and/or undermines the reliability of these tests.”
For more information on the training received by Attorney Chadwick, click HERE.
Evan Chadwick, the founding attorney for the Vermont DUI/Criminal Defense Law Firm of Chadwick Law, finished an intensive four day training in Alpharetta, Georgia this week to become a certified DUI field sobriety test instructor by the National Highway Traffic Safety Association (NHTSA).
The training required Attorney Chadwick to complete both a practical and written exam on teaching the principals of roadside DUI investigations by law enforcement. “I am thrilled to have taken this course”, stated Attorney Chadwick while awaiting his flight home in Atlanta, Georgia. “The training has given me further practical experience in evaluating DUI cases, and will go a long way in ensuring that my clients, who are facing a DUI in Vermont, will be best served in their pursuit of navigating the Vermont criminal justice system”
This recent certification furthers the field sobriety and DUI investigation practical student course which Attorney Chadwick completed in September of this year and allows him to give seminars to other practicing attorneys on the ins and outs of DUI investigation and the application of the Standardized Field Sobriety Tests (or SFSTs). “The goal of any attorney should be to never stop learning”, stated Chadwick. “Although I feel that this training gives me a wealth of knowledge in defending Vermont DUIs, I will continue to look for other ways to broaden my understanding on the complexities of Vermont DUI defense.
There are certain areas on Vermont highways that are easier to navigate then others. When it comes to Vermont Interstates I-91 and I-89, the degree of difficulty can be significantly diminished, especially during low traffic times. As a result, many motorists may feel that they can travel at speeds much faster then the posted speed limit. Although traveling a few miles over the posted speed limit may land a motorist a traffic ticket, there are times that the speed alleged is excessively over the posted speed limit, which can lead to a Vermont Excessive Speed criminal charge. One area on I-89 in particular has been deemed a “hotspot” for excessive speed charges, begging the question of what factors are leading to more criminal charges in this stretch of highway then any other in Vermont.
According to a report by Vermont Public Radio, one Vermont State Trooper has arrested several motorists traveling at speeds in excess of 100 mph in a 10 mile stretch on I-89 between the Royalton Sharon town lines. For those who have traveled this stretch of road before, it is easy to see why more motorists would feel comfortable traveling at high speeds then on other Vermont highways.
It can be easy to forget the speed you are traveling. In certain areas, it can become even easier to allow this lack of attention to turn into a dangerous situation that may result in a criminal charge. Understanding where these situations may be more likely to occur may not only prevent them from happening, but in the unfortunate event that one is arrested for a Vermont excessive speed charge, it can be a useful tool in rationalizing some of the behavior in order to best argue for leniency when the case is brought to court.