Drugged Driving

Smell of marijuana may not be enough for search of vehicle in Vermont

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With the passage of Act 76 in the State of Vermont, decriminalizing possession of under 1 ounce of marijuana, questions have been raised as to whether or not the discovery of such an amount can still give a basis for law enforcement to search a motor vehicle.  Without owner consent, Vermont law enforcement need to meet a probable cause of criminal wrongdoing in order to receive approval from a judge for a search warrant.  Thus, given that possession of small amounts of marijuana is now considered a civil infraction, similar to a speeding ticket, challenges are beginning to surface in Vermont and surrounding states as to the lawfulness of warrants issued on a violation of ACT 76 alone.

Although the law is clear that for civil violations, officers may not detain motorists for a time that would exceed the normal time for issuing a traffic ticket, law enforcement continues to challenge this rule by attempting to expand the scope of their investigation when they claim to smell a strong odor of burnt marijuana.  However, some recent cases against search and seizure have arisen recently in Massachusetts, one most notably in      COMMONWEALTH vs. MATTHEW W. OVERMYER, which states “In sum, we are not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine. In the absence of reliability, a neutral magistrate would not issue a search warrant, and therefore a warrantless search is not justified based solely on the smell of marijuana, whether burnt or unburnt.”

Thus, with the increasing number of drugged driving arrests occurring on Vermont roads, and the legalization of marijuana possession in the forefront of the Vermont legislature, it is reasonable to conclude that a substantial amount of grey area continues to exist in prosecuting such cases that can only be clarified through litigation in the Vermont County court system.

The battle over the saliva test in Vermont drugged driving

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Vermont lawmakers continue to struggle with finding the correct balance in prosecuting motorists who may be under the influence of marijuana or other drugs while operating a motor vehicle.  Vermont law enforcement has claimed that there is a saliva test that can be implemented in order to prove that a motorist has marijuana in their system.  However, what lawmakers continue to struggle with is determining whether that detection alone, satisfies the DUI statute, which states that the presence of the drug must effect the motorist’s ability to operate their motor vehicle safely.

In an effort to address the vague nature of the current DUI-drugs statute, the Vermont legislature introduced a bill in 2014 that lowered the standard of proving a Drugged Driving charge by being able to prove that the operator was under the influence to “the slightest degree”.  However, several lawmakers in the Judiciary Committee, including Chair, Jeanette White: D-Windham County, stated that this standard cast the net too wide.

In an effort to compromise, language to the bill was introduced that would allow someone to be arrested for Drugged Driving if prosecutors could show that drug use “interferes with safe operation of a vehicle in the slightest degree.”.

If this language is in fact adopted, it still remaining unclear exactly how law enforcement will be able to detect this level of impairment beyond the flawed Drug Recognition Expert (DRE) standard that they have used to this day.  John Flannigan, a Lieutenant with the Vermont State Police, has stated that a roadside saliva test may in fact be the answer to this question.

Flannigan’s argument is that the saliva test, which is able to detect the presence of certain drugs, including marijuana, along with the DRE testimony, would be sufficient to show impairment.

However, even with this additional evidence, under the revised drugged driving bill, law enforcement would still need to show that the motorist’s impairment “slightly” effected their ability to operate a motor vehicle safely.  Although the saliva tests and DRE testimony may be sufficient to arrest an individual, much remains to be seen if these charges can actually stick when individual cases maker their way through the Vermont Judicial system.

 

 

What is a Vermont DRE?

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DRE stands for drug recognition expert.  It is an attempt by Vermont law enforcement to combat the growing concern of individuals driving a motor vehicle while under the influence of marijuana or other drugs, which is otherwise known as Driving While High (DWH).  Here is how it works.

A motorist will get pulled over by law enforcement and during their initial interaction, law enforcement will note that they recognize certain clues of impairment (blood shot eyes, confusion, seating, nervousness etc..)  Based on these observations, the officer will inquire if the motorist has consumed any alcohol or drugs recently.  If the motorist admits to some form of consumption of drugs, the officer may, along with their observations, have enough evidence to perform certain tests aimed at detecting drug impairment.

In order to perform these tests, an officer needs to have specialized training that certifies them as a DRE.  Although prosecutors have attempted to enter DRE testimony into evidence at trial, there is still substantial question as to whether the training the officers have received is sufficient to qualify them as an expert and whether their testimony alone is sufficient to uphold a conviction for DWH.

According to the Governor’s Highway Safety Program, there are currently 35 officers across the State of Vermont that have been certified as a Vermont Drug Recognition Expert, with the aim of having an increased number of officers take the two day training each year.  The  additional training offered to law enforcement is beginning to see dividends for enforcing DWH laws as in 2014 it was reported that officers conducted 214 evaluations, a steady increase from previous years.

With marijuana legalization making its way through the Vermont legislature and additional tools being added to the arsenal of Vermont law enforcement, motorists will need to become increasingly cautious as to their driving if they have ingested drugs or alcohol recently. It appears that Drug Recognition Experts are only one small part of a significantly wider net law enforcement will be casting when they commence a DWH or DWI investigation that could ensnare many motorists who do now know the DWH laws in the State of Vermont.

 

 

The bottom line expense of a Vermont DUI

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Many who have been arrested for a DUI-First Offense in Vermont have never been in trouble with the law before.  As a result, many motorist facing such a prosecution will look online to find out what their potential penalty may be.  The result for those not well versed in the Vermont law can be shocking…2 years in jail, $1,000 fine or both.

Although the maximum penalty would be enough to scare anyone, there is a bottom line cost that most individuals can expect to pay when facing a DUI-First Offense.

License Suspension:  If convicted of a DUI, there is an automatic 90 day license suspension if you took the breath test or a 6 month suspension if you refused.  However, the suspension itself only tells one part of the story.

SR-22 Insurance:  If your license is suspended for a DUI-First Offense many insurance carriers will refuse to insure your vehicle.  Vermont requires an SR-22 form to be filled out to show that a motors is covered by sufficient insurance before they agree to reinstate your license.  The cost to have such insurance can be 3-5 times more than if you had a clean driving record.  Over the course of the three year period, that could amount to $5,000 or more added to your premium.

Fine:  Beyond the conviction, expect to pay a hefty fine if you choose to plead to a DUI charge.  Customarily, the fine will depend on your blood-alcohol-level, your conduct during the pendency of the case and your criminal record.  Although the fine may vary and can be negotiated to a certain degree, expect to pay at least a $600 fine as part of your DUI conviction.

Court Costs:  Don’t expect to get away from a DUI with just paying the suggested fine, as the State of Vermont will also tack on Court Costs, which can equal as much as 50% of the total fine.  As a result, a $600 fine will be increased by approximately $300 in court costs.

CRASH:  Any person convicted of a DUI in Vermont must complete CRASH to have their license reinstated.  There are two ways to complete CRASH, either through the weekend Course at the Clara Martin Center in White River Jct., or the weekly course at one of several locations across the State.  The cost of CRASH varies some, but expect to pay at least $450 for the course.

Counseling:  As a part of CRASH for this who are identified as higher risk, an individual convicted of a DUI must enroll in least 6 counseling sessions before they receive their certificate of completion from CRASH.  Counselors can be found through the CRASH administrator and cost somewhere in the neighborhood of $80 per one hour session.  Total cost:  $480.

License Reinstatement Fee:  You have completed all the steps and now are ready to receive your license back…not so fast, there is one more fee you have to pay to the Vermont DMV for them to reinstate your license.  Cost:  $73

TOTAL COST FOR A DUI-FIRST OFFENSE CONVICTION:  

APPROX $6,903 

The scenarios played out above are not a guaranteed resolution.  Each case is fact specific and may result in more or less severe consequences depending on the potential defenses that are available and the conduct of the accused.