Author: chadwicklawvt

Massachusetts Revokes Breath Test Evidence in 27,000 DUI’S

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After an investigation in the Commonwealth of Massachusetts discovered that breathalyzers were not calibrated properly, 27,000 individuals with DUI convictions and guilty pleas now find themselves in a position to have their case reevaluated – without the false evidence.

According to the court, there was “egregious government misconduct” performed over an almost 8 year span from summer of 2011 to spring of 2019. The court ruled that any test by the faulty breathalyzer machines during this time shall not be used in criminal prosecutions, opening the door for DUI defense teams to correct injustice. The Court found that the state had been involved in intentionally withholding evidence – which many in Massachusetts are now comparing to the drug lab controversy which shook the legal world in years prior. 

The suppression of these breath tests by the Court now allows for those who pled guilty, or those who were convicted to get a fresh chance at a favorable outcome. If a guilty plea was submitted, it can now be withdrawn. If the defendant was convicted, a new trial can be requested. 

This ruling was due to what the justices saw as a due process rights violation. While not all 27,000 results were faulty, the state had evidence that there was error in the system and did not report it, which led the justices to conclude that all 27,000 individuals had their due process rights violated. 

This concluded of seven years worth of litigation. Hampden District Attorney Anthony Gulluni had originally suspended the results of the breathalyzers in 2019, before Boston District Court Judge Robert Brennen ruled in January of 2023 that the results could be used as evidence. 

“7 years of litigation exposed a lot of problems with the calibrations lab that we as citizens paid millions of dollars for. The prosecutors can no longer consider the breath test for the prosecution. The litigant, the citizen, has to file a motion, a motion to vacate, that has to be brought to the judge and prosecutors, the prosecutor would have to examine it,” said Attorney for the defense, Joe Bernard.

What is the Blood Alcohol Curve and How does it play into a VERMONT DUI arrest

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Anytime you consume an alcoholic drink, it takes time for the alcohol to fully integrate into your system and for the intoxicating effect to occur. This “BAC curve” can play a significant role in determining whether or not an individual is intoxicated at the time of operation of their motor vehicle and this guilty of a VERMONT DUI.

What Does the BAC Curve Show?

Photo by Univ. of Toledo

As the above graph shows, the way in which alcohol processes into the blood to reach peak BAC is a variable process that takes upwards of an hour to reach.

In a common scenario seen in VT DUI arrests, an officer will pull a motorist over after they exit the bar. One of the standard questions is whether or not the individual has consumed any alcohol in the last 30 minutes prior to their interaction with law enforcement. If the answer is yes, this can skew the later results of the data master breath test as the reading can actually be higher at the time of the test then at the time of the witnessed operation.

In these situations, especially where an individual is driving a short distance, it can be argued that although the breath test shows a reading above the legal threshold of .08, that the individual was in fact under the legal limit at the time of operation and thus, not guilty of a DUI.

Don’t Let the Breath Test Fool You Into Pleading Guilty

Alcohol consumption patters are very important in analyzing a potential defense to a Vermont DUI charge. In order to fully evaluate it is important to create an alcohol consumption timeline so that a thorough evaluation can done in determining the potential defenses using the BAC curve.

Defenses in Vermont Superior Court can be argued that the BAC curve in facts shows that the defendant has consumed alcohol in a responsible manner, knowing that the peak would take time to reach and, as a result, they are not guilty of the Vermont criminal charge of Driving Under the Influence.

Disclaimer: None of the content above should be considered legal advice. For specific advice concerning your legal issue, consult a Vermont DUI attorney.

Will My Home Driver’s License Be Suspended For a Vermont DUI?

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All states except for 5 (Massachusetts, Michigan, Wisconsin, Tennessee, and Georgia) are part of the Driver’s License Compact. The idea behind this is that there is one license, one record, for all of these states. Unfortunately, it is not always that simple. The idea for these states is to treat violations from out of the state as if they happened in the violator’s home state. However, legal statutes are not identical from state to state and there can be some legal wiggle room depending on how the law matches up between states. Even worse, the operator could potentially receive double the fine. If the charge is treated as if it happened in the violator’s home state, both states have the power to levy fines, as well as license reinstatement fees.

New York 

If you are over 21 years old and are convicted of an alcohol or drug related driving offense in another state (or even Ontario or Quebec), you could get your driver’s license suspended for at least 90 days.  For non-alcohol/drug related driving offenses, New York does not record out of state violations, with the exception of criminal negligence, homicide, or assault with a motor vehicle that results in death. 

Massachusetts 

In Massachusetts, the courts could indefinitely suspend a driver’s license after receiving notice of an out-of-state DUI charge until the driver’s ability to operate a motor vehicle has been restored in the state or jurisdiction in charge of the DUI case. Similarly, for other charges such as gross negligence, the operator will receive a comparable punishment, however, certain criteria may not be identical between Massachusetts and Vermont, which could lead to grounds for dismissal in Massachusetts. 

Rhode Island

Rhode Island could suspend your license if prosecutors can prove that you were convicted of a DUI, not just charged. However, there are very specific parameters for a DUI in Rhode Island that are not exactly the same as those in Vermont or other states, which could help the operator’s case in Rhode Island. The same rules apply for gross negligence cases.

New Jersey

New Jersey drivers could see their license suspended if convicted of DUI or gross negligence in another state. The state treats convictions from other states essentially the same as being convicted within the state, as long as the statutes have relatively comparable statutes. 

Connecticut

Connecticut operates under very similar rules to New Jersey. If convicted in Vermont or another state of a DUI or gross negligence, Connecticut drivers could see their license suspended, as long as the parameters of conviction match up.

New Hampshire

Upon notification from Vermont of a DUI, New Hampshire could suspend your license. This goes for other traffic violations as well. For a DUI/DWI, the suspension would be at least 9 months. 

Maine

If convicted of a DUI in Vermont or other states, Maine will receive a notice of conviction. Once this notice is received, the operator’s license could be suspended based on their driving record in Maine. Additionally, gross negligence could also end in a suspended license depending on record and how the state statutes align.

It is important to understand your rights as an out of state driver if charged with a Vermont DUI. Understanding how a Vermont conviction can affect your out of state license is one of the most important pieces of navigating the Vermont criminal justice system in a way to ensure you receive the best, most well-informed path forward.

Is The Truth in the Eyes?

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A Brief on Horizontal Gaze Nystagmus in Vermont DUI Investigations

What is Horizontal Gaze Nystagmus (HGN)?

The definition of nystagmus is a “rapid involuntary movement of the eyes.” This could be side to side, up and down, or circular movements of the eyes. This is due to brain disease or inner ear balance. Brain disease causes vertical nystagmus, while inner ear balance causes horizontal. 

Alcohol consumption, as well as other depressants and various types of drugs can also lead to nystagmus via preventing the brain from properly communicating with the eyes, causing horizontal nystagmus. The further the individual becomes impaired, the more violent the eyes will jerk. 

How Do Vermont Law Enforcement Use HGN?

The HGN test is one of the three parts of the Standard Field Sobriety Tests System. Criminal justice students in Vermont are taught that the HGN test is the most reliable field sobriety test.

Officers in Vermont administer the test in three parts. They always begin with the left eye. The first thing that they test for is smoothness in movement. As the eye moves from side to side following the object that it is prompted to follow, does it move smoothly or jerk? The next thing tested for is nystagmus at the end of the movement. When the eyes are moved all the way to one side and held in position for four seconds do they begin to jerk at all? Finally, They test to see if the eyes begin to jerk before they reach 45 degrees in movement. 

For each eye, there are 3 points allotted in the test, totalling 6 points. Officers are taught that if the suspect fails 4 or more of these points, they can tell with 77% certainty that their blood alcohol percentage is above 0.10%. 

How You May Limit the Relevance of HGN in a VT DUI Trial

Before an officer may go ahead with an HGN test, they must verify that the subject’s eyes track stimulus together, and that their pupils are the same size. If they are not, this could be a sign of medical disorder or head injury. 

If your case goes to trial, it is important for your attorney to file a motion in limine to exclude all evidence regarding the HGN test. This is essentially a motion to exclude certain evidence from being presented to a jury as it is irrelevant, untrustworthy, or more based on prejudice than probate. 

Additionally, the state should not be allowed, based on legal precedent, to enter an HGN test into evidence if they have not given notice of an expert witness testimony on the subject. If the evidence were allowed to be presented in court, the witness should be required to relate the complicated science behind the test to the jury, who’s members most likely don’t have advanced scientific backgrounds. Vermont trial courts have decided that this expert testimony must occur before HGN evidence is allowed to be brought forward to the jury.

However, the state rarely has the time, resources, or will to pay for an expert witness sufficient enough to allow for HGN evidence to be used in trial. A motion in limine will most likely be successful in blocking this test from following you into the courtroom. It is of the utmost importance that you contact your attorney as soon as you receive the citation, as they can help prevent you from loss or suspension of licensure, large fines or possibly jail time. Preventing HGN evidence from being used in your trial could just make the difference.

What can cause me to lose my CDL or trucking license?

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A look into violations that can cause loss of your CDL (Commercial Driver’s License)

Many actions taken by those who have their CDL, or trucking license, whether it be behind the wheel of a commercial motor vehicle (CMV) or personal vehicle, can result in the suspension or loss of licensure. This can lead to loss of income due to a temporary inability to work, or even a need to find a new career.

Alcohol, felonies, abandoning an accident

In contrast to the typical blood alcohol limit of .08%, it is illegal to operate a CMV at .04% or more. Operating a CMV implies consent to be tested for alcohol in the system. You will lose your CDL for at least one year for driving a CMV under the influence of alcohol, refusing blood alcohol testing, driving under the influence of a controlled substance, leaving the scene of an accident, committing a felony involving the vehicle, or causing a fatality due to negligent operation. This is upped to at least three years if the CMV being driven is denoted as having hazardous materials. You will lose your license for life on a second offense, or using your CMV to commit a felony involving controlled substances.

Serious traffic violations

Serious traffic violations include speeding (15 or more over the posted limit), reckless driving, reckless lane changes, following vehicles too closely, traffic offenses while driving a CMV that are related to a fatality, as well as driving without CDL or operating a CMV without the correct CDL class. Committing any of these violations twice, in a three year span, will result in you losing your CDL for 60 days, and 120 days for committing three violations in that 120 day span.

Violation of out of service order

If a driver is placed on an out of service order, they must not operate a CMV during the time under which they are ordered out of service. One of the reasons a driver could be placed out of service is for having alcohol in their system, but below .04%. Violations of this order come with a 90 day CDL suspension for the operator’s first violation, a year suspension for two violations in a ten year span, and three year suspension for three or more violations in a ten year span.

Railroad-Highway grade crossing violations

Railroad-Highway violations occur when the operator does not comply with federal, state, or local regulations pertaining to one of six offenses at a railroad-highway grade crossing. These include: failing to stop at unclear tracks for drivers not required to stop, failing to slow down to check that tracks are clear for those who do not have to stop, failing to stop for those required, driving through tracks without having enough space to make it through without stopping, failing to obey traffic control devices at the crossing, and failing to negotiate a crossing because of a lack of undercarriage clearance. The first violation of these rules results in a 60 day license suspension, 120 days for a second offense in three years, and a year for three or more violations in a three year span.

Traffic violations in your personal vehicle

CDL holders may also lose their license for violations of the law with their personal vehicle. If your ability to operate your personal vehicle is revoked, canceled or suspended for any reason other than parking violations, you also lose CDL privileges. If the loss of license is due to alcohol, controlled substance, or felony violations, you will lose your CDL for a year from the first offense, and life for the second.

Know your rights

As a commercial driver’s license holder, it is important to know your rights, when it comes to CDL traffic violations and those violations involving your personal motor vehicle. Do not let an allegation become a permanent blemish on your ability to provide for yourself and your family. You have a right to an evidentiary hearing on all allegations and should pursue any remedy possible to either eliminate or mitigate your risk for long term effects.

A look at the car insurance mandatory disclosure regarding Vermont moving violations; inside the details

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When a motorist is issued a traffic ticket, there are two major concerns; points on license, and, insurance consequences.  Although some may hope that since they live outside Vermont, their home state insurance adjuster may not pick up on the violation.  Although there have been instances of missed violations in the past, a recent look at consumer mandatory disclosures of insurance companies, tell a different story, one that may not be noticeable at first, but over time can lead to substantial financial penalties; the gradual rate increase.

Most insurance companies place drivers in “risk tiers”.  This determination is based on a variety of factors such as driving and accident history, location of residence, age and even credit history.  In the mandatory disclosures it is revealed that “at renewal we review your payment, claim, driving and policy change history to determine if we will adjust your risk tier.”  

Driver history checks however, do not only occur during renewal periods.  The mandatory disclosure further explains that “once we’ve determined your tier, we look at additional information to refine and finalize your rate.”  

This leaves open the possibility for insurance companies to check driving histories at different times during a policy period pursuant to their right to “refine” risk tiers, which they can use as a basis to increase rates.

A Right to Gradually Rise

Although it is clear from the disclosure that “rate[s] will generally change when you “move to a new location, have an accident [or] receive a violation…” what is not clear is exactly how much a motorist’s insurance rates will be impacted.

A closer look at the disclosure reveals that insurance companies may not raise rates significantly at first.  Instead, they reserve the right to “gradually increase rates over time”.  

Certainly there are benefits to gradual increases however, if the rate increase continues to rise, when does it actually stops rising? This is a question with no answer on the consumer disclosure.

Lives can be busy, hectic and sometimes chaotic.  Most of the time, we just want things to work, without us expending too much effort in understanding the details.  Although understandable, the value of understanding your rights as a consumer and the rights reserved by car insurance companies may come in handy if you are ever issued a Vermont moving violation.

COVID-19 POLICIES—WE ARE OPEN

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In response to the recent outbreak and on advice from the CDC, Chadwick and Spensley PLLC will be amending its policies as follows:

  1. In person meetings will be limited to urgent matters until at least April 14, 2020. For those seeking a non-emergency consultations, call or email the office to set up a time to discuss your case with an attorney.
  2. Attorneys will seek waivers of client’s appearances at all Court hearings until further notice. Please be sure to reach out to ensure a waiver can be secured in your case as there are some limited exceptions that may apply.
  3. Cases will continue to progress. Chadwick and Spensley will continue to advance cases in the client’s best interest. The justice system will not stop because of COVID-19, it will only change the way in which it conducts business. County prosecutors are still at their desks, judges are still ruling on legal issues and cases are still being resolved.

Please do not hesitate to reach out with any questions or concerns.

Best wishes,

Evan Chadwick, Esq.

Managing Partner.

Byproducts of the Human Metabolic Process Could Cause False Positive Breathalyzer Tests

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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.

Robert Olaf ANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) 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 (5). 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. 

How will insurance discover my Vermont traffic ticket?

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Insurance companies have many tools to determine whether they have a basis for placing a client in an elevated risk pool. They can search online databases, run a client’s local driving record or simply ask a client to update them on whether they received any moving violations in the last year. Regardless, it should be expected that if you receive a Vermont traffic ticket that carries points, it is likely that your insurance company will find out about it.

How to avoid the Moving Violation

The key to any traffic ticket defense is to articulate a basis for a moving violation to be avoided. Driving history, conduct of the individual on the roadside and the age of the driver are all key factors. When negotiating with an officer it is important to point these factors out at the onset of negotiations. This should put the officer at ease knowing that they are dealing with someone who is reasonable and understands the importance of safe driving.

After the illustration of mitigating factors, it is equally important to determine whether there are any legal defenses to the charge. Radar calibration, other motorists on the road, and the proper issuance of the ticket are all important factors to consider. In some instances, it is advisable to point these issues out in negotiations, while in other cases it is best to keep these defenses close to the vest in the event the case has to go to trial.

Ultimately, these defenses can be used as leverage with the officer in order to negotiate a better deal or, if no deal can be reached, to present the defense to the judge to allow them to determine whether the clear and convincing standard of proof has been met.

No driver wants to have a list of Vermont moving violations following them around. The ultimate goal in presenting a traffic ticket defense is to leave all avenues open in the hope that a result can be reached that will not result in the insurance company being able to assess additional fees.


Vermont Drivers Are Expected to Use Turn Signals Even in Designated Turn-Only Lanes

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By Robb Spensley

It is very common that drivers operating or waiting in a designated turn-only lane will NOT put on their turn signals, perhaps assuming that their intention to turn is clear enough. However, as established in recent Vermont Supreme Court Decision State v. Cook (google “2017-368 Vermont”), the failure to utilize your turn signal in a designated turn-only lane will now be considered adequate grounds for a police officer to pull someone over and ticket them. The Vermont Supreme Court has not previously decided this precise issue, with past decisions indicating that an actual turn signal may not be necessary when the lane designation clearly allows only one legal maneuver.

Some American States do not require a turn signal in a turn-only lane, but Vermont and many other States do. Police officers in Vermont are allowed by law to perform a traffic stop whenever they have a reasonable and articulable suspicion of a Vermont traffic violation, like speeding, or a crime, such as driving under the influence. The Vermont Supreme Court reached its recent decision in Cook primarily based upon the specific wording of Vermont’s turn-signal statute. 

The Vermont Supreme Court also cited safety issues to support the decision in Cook, reasoning for example that other drivers stopped at an intersection may not be able to identify that an opposing or nearby lane is a turn-only lane. One might speculate that snowstorms and low visibility situations may also worsen a driver’s ability to perceive the designated direction of a nearby lane. 

I do not expect that this type of traffic stop will become common in Vermont. However, if a Vermont police officer decides to perform a traffic stop based upon a driver’s failure to activate their turn signal within a designated turn-only lane, that traffic stop will be upheld and the turn-signal violation is ticketable.