Underage alcohol possession may lead to enabling criminal charge

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 law enforcement perform specialized “move over” enforcement

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.

 

5 takeaways from NHTSA report to Congress on marijuana impairment

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.

Exercise your right to remain silent when being pulled over for a Vermont traffic violation

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:

  1.  Never reply with a substantive response to the question of why you think you were pulled over:  A simple “I am not sure sir” is sufficient.  Do not think that by admitting to the offense that you are going to be cut a break because it in fact can make the officer’s position stronger and thus they may be less likely to bend on negotiations if they are confident they can secure a conviction at a trial.
  2. Make the officer’s job as easy as possible:  The less time an officer spends in your presence the better it is for both of you.  Have your license and insurance information ready, hand it to the officer as soon as he approaches the vehicle and keep the verbal exchange to an absolute minimum.
  3. Remember, everything you say is likely being recorded:  Most officers have body cams or microphones connected to their uniforms and can catch the entire interaction between the officer and the driver.

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.

Evan Chadwick Receives Advanced Level Training on Defending Against Hospital Blood Tests

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.

 

 

 

Vermont attorney Evan Chadwick completes Field Sobriety Instructor Training

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.

 

Beware the Vermont excessive speed “hotspot”

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.

Gross negligent operation is no minor matter

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.

Attorney Robb Spensley wins client acquittal in felony trial

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.

Field sobriety tests invalid in determining whether driver is intoxicated by marijuana

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.