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).
Evan Chadwick fresh off his completion of his DUI investigation instructor course.
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.
Stretches like this on I-89 can be a recipe for a Vermont Excessive Speed charge if one is not careful
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.
With an increase in highway fatalities in Vermont this year, law enforcement has been stepping up their investigation and arrests of those that they feel are driving in a criminally negligent manner. Many of these cases, result in a criminal charge for “gross negligent operation. 23 VSA 1091(b)(2) defines gross negligence as ” examining whether the person engaged in conduct which involved a gross deviation from the care that a reasonable person would have exercised in that situation.”
The standard for GNO is rather broad and can encompass a large degree of alleged behavior, such as driving at excessive speeds, texting while driving or operating under the influence of drugs and alcohol.
One of the many keys to defending a GNO charge is to look critically at the operation of the motor vehicle and argue that the conduct does not amount to criminal negligence, which carries with it a significantly heavier burden then proving civil negligence.
To show criminal negligence, the state must prove beyond a reasonable doubt the mental state involved in criminal negligence. Proof of that mental state requires that the failure to perceive a substantial and unjustifiable risk that a result will occur must be a gross deviation from the standard of a reasonable person. Criminal negligence is conduct which is such a departure from what would be that of an ordinary prudent or careful person in the same circumstance as to be incompatible with a proper regard for human life or an indifference to consequences. Criminal negligence is negligence that is aggravated, culpable or gross. See USlegal.com
Often prosecutors and law enforcement will produce experts reports to support their position that the conduct alleged amounts to gross negligence. If an accident is involved, these reports can include determinations by the expert that the accident was caused by the defendant’s failure to appreciate the risk that their operation of a motor vehicle was creating to himself and others.
Defending a gross negligent charge in Vermont involves a complex and multifaceted approach. Attacking the investigation itself while also looking critically at the facts that are not in dispute is an essential part of this process. Only though this analysis can a true determination be made as to the merits of the state’s case and in turn figuring out the best possible way to ensure that the individual charged with the offense is able to navigate their way to finding the best result.
Pittsford Attorney Robb Spensley wins acquittal for his client, Eugene Diou, after a full day trial in Vermont Superior Court Criminal Division before Judge Thomas Zonay. Mr. Diou had been accused by his then husband Richard Dayton. The jury deliberated for less than an hour before they found Mr. Diou not guilty of all charges.
Mr. Diou had been charged with Aggravated Domestic Assault in the First Degree, a felony that carried a maximum penalty of 15 years in prison, the state was proceeding on a theory of strangulation. The state also sought the lesser included Domestic Assault charge. Attorney Spensley informed the jury that his client acted in self-defense. “We are obviously very pleased that the jury reached the proper verdict. Mr. Diou acted in self defense after being assaulted in his home,” Attorney Spensley stated from his Pittsford office.
With the legalization of marijuana in Massachusetts and Maine and the decriminalization of possession of small amounts of marijuana in Vermont and New Hampshire a new legal front has been established in determining how to measure an individual’s level of impairment when operating a motor vehicle. The lack of specific scientific evidence as to how to detect impairment is one of the major reasons Vermont governor Phil Scott vetoed a bill to legalize possession of marijuana last year and continues to be a huge concern for Vermont law enforcement in their ability to arrest individuals for driving under the influence of marijuana or other drugs.
The Massachusetts Supreme Court decision in COMMONWEALTH V. GERHARD has now limited police officer’s ability to use the standardized field sobriety tests as evidence of drug impairment, tests which have long been validated to detect alcohol impairment.
“The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs.”
As has been litigated in Vermont Courts (and recently won by Attorney Evan Chadwick in a drugged driving case), a law enforcement officer who is not a certified Drug Recognition Expert should not be able to testify as to their opinion of impairment when investigating an individual for DUI-Drugs . The Gearhardt decision adds an extra layer of protection for these types of investigations by limiting what evidence can be presented on the roadside investigation.
Attorney Evan Chadwick recently completed a four day course that resulted in his certification as a field sobriety practitioner. Using the same curriculum that trains all police officers, Attorney Chadwick passed both the practical and written test to earn his certification.
“The training I received is vital to my practice of Vermont DUI defense” stated Chadwick. “By receiving the exact training law enforcement officers receive I am now able to better understand the nuances of the application of the field sobriety tests that may cause their application on the roadside to be questioned.”
Attorney Chadwick anticipates furthering his education in the near future, as he has been invited to attend the field sobriety instructor training this winter, which will allow him to apply for field instructor certification. “Educating myself on the many facets of Vermont DUI defense has always been my long term goal” stated Chadwick. “The more I understand the DUI investigation and where mistakes can be made, the better I can serve my clients in ensuring they receive the best defense possible”.
Horizontal Gaze Nystagmus or HGN is a key tool in law enforcement’s arsenal to investigate an alleged DUI.
Defined as the “involuntary jerking of the eyes that occurs when eyes gaze to the side” the HGN has been validated as one of the most reliable indicators of driver impairment when compared with all the other field sobriety and investigative tests officers employ while on the roadside.
If HGN is conducted correctly a 2013 San Diego validation study has found that it can be 88% accurate in detecting that a motorists BAC is above .08. The findings in an HGN test alone can give an officer the probable cause they need to arrest a motorist and bring them back to the barracks where an evidentiary breath test is taken.
As is the case with all field sobriety tests however, the key determination in the HGN is if the test was in fact administered properly according to National Highway Safety Administration (NHTSA) standards.
As a certified HGN practitioner who has gone through the certification process of administering the HGN, I can say with conviction that the NHTSA requirements are difficult to administer correctly in a controlled classroom environment, let alone in the wide variety of environmental conditions that an officer would face when conducting an HGN test on the roadside.
Timing, position of the stimulus (object motorist is to follow with eyes), medical conditions (such as head injuries) and the surrounding environment are but a few of the many factors that can play a role in the accuracy of the HGN. If any of these are comprised by failing to follow NHTSA guidelines, the entire test and, in turn a significant portion of the DUI investigation can be compromised, leaving serious doubt as to whether the officer has the evidence necessary to charge a motorist with DUI.
It is no secret that a holiday weekend brings an increase in traffic driving through the Green Mountain State. This increase is especially felt on the two major highways which cross the State; I-89 and I-91. As a result, Vermont Law Enforcement has made it clear that they will be increasing their presence on the highways in order to detect and deter unsafe driving behavior, with an emphasis on investigating DUIs and speeding violations.
According to the Valley News, there has been an expected dramatic surge in the number of vehicles on the road, including on I-89, which sees traffic counts of about 41,000 near the Vermont/New Hampshire state line on an average day. This surge of traffic resulted in 100 motorists being issued tickets for speed violations and 8 for the use of hand held electronic devices during a joint task force of Vermont and New Hampshire Law Enforcement officers along the Connecticut river valley on Friday.
The interstate’s are customarily Vermont State Police turf. Do not be surprised to see numerous green cruisers in the median along the highways this weekend. Although safe driving is always the best defense to avoiding traffic tickets, in the event you find yourself with blue lights behind you, it is important to remember the following:
- Be polite;
- Be efficient in producing your license and insurance to the officer;
- Do not interrogate the officer; and
- Keep that PBA care in your pocket at all times and make no mention of it.
Attorney Evan Chadwick of Chadwick Law, traveled to Alpharetta Georgia in order to participate in a vigorous three day training regarding the process and science behind a Drug Recognition Evaluation that accompanies many Vermont DUI prosecutions.
Attorney Chadwick received a thorough overview in the 2015 NHTSA/IACP DRE Pre-School & DRE 7-Day training curriculum that officers attend nationwide. Emphasis was made on analyzing a DRE case file, to include, the DRE Face Sheet & DRE Narrative report, how to compare the two with one another and with the Drug Symptomology Chart, as well as emphasis on each specific step involved in a 12-step DRE evaluation. Time was also be spent covering the IACP’s rules and regulations that officers are required to follow in order to become certified and to recertify as a DRE.
“The training I received was essential in furthering my understanding of the science behind a Drug Recognition Evaluation and what errors officers make in conducting these evaluations”, stated Attorney Chadwick. “It is a training that anyone who is serious about defending DUIs in Vermont needs to take in order to best serve their clients”.
An officer needs probable cause in order to be to search a vehicle without the owner’s consent. Despite Vermont decriminalizing the possession of under an ounce of marijuana in 2013, the smell of marijuana alone still grants law enforcement the probable cause they need to request a search. This reality was recently reinforced in Judge Helen’s Toor’s district court decision denying a Rutland man’s motion to suppress the evidence seized as a result of the search. “Vermont’s decriminalization statute explicitly states that it leaves unchanged marijuana’s ability to furnish probable cause. The national consensus is that the mere smell of marijuana supports probable cause.” Although still currently good law in Vermont, Toor’s decision has since been appealed to the Vermont Supreme Court.
Further clarification as to the sniff test may be supported by recent decisions in Massachusetts and Colorado, that have found that the oder of marijuana alone does not give an officer probable cause. The Massachusetts case is especially important to Vermont as at the time of the decision, possession of one ounce or less of marijuana was considered a civil infraction in Massachusetts as it is considered in Vermont. “[W]e no longer consider the “strong” or “very strong” smell of unburnt marijuana to provide probable cause to believe that a criminal amount of the drug is present. Commonwealth v. Rodriguez.
The wild card in the entire calculus is the fact that it is all but assured that Vermont will legalize recreational marijuana use in the near future. In 2017, a legalization bill made it all the way to Governor Phil Scott’s desk before he vetoed it, stating that further study was needed before he signed the bill into law. Thus, if legalization does occur, the Vermont courts may look more towards the recent decisions in Colorado to guide them in reviewing the smell test as a sole basis for a search. “Because Amendment 64 legalized possession for personal use of one ounce or less of marijuana by persons 21 years of age or older in Colorado, it is no longer accurate to say, at least as a matter of state law, that an alert by a dog which can detect marijuana — but not specific amounts — can reveal only the presence of ‘contraband,’”. Colorado v. McKnight
If Vermont does pass a marijuana legalization bill, expect further challenges to law enforcement’s ability to decipher criminal behavior from that of legal, including, but not limited to their ability to tell the difference between a legal amount of marijuana and that which surpasses the criminal threshold.