Vermont DUI attorney passes field sobriety practitioner course

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”.

 

HGN-A Vermont DUI defendant’s worst and possibly best friend.

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.

 

Beware! Increased police patrols on I-89/I-91 throughout Vermont this weekend

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:

  1. Be polite;
  2. Be efficient in producing your license and insurance to the officer;
  3. Do not interrogate the officer; and
  4. Keep that PBA care in your pocket at all times and make no mention of it.

Safe travels.

 

 

 

 

 

 

Vermont Attorney Evan Chadwick Successfully Completes Drug Recognition Expert Training

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”.

What to expect in a Vermont DUI prosecution

Part 2  of the series on the Vermont DUI Process

Following the DUI investigation and the receipt of a citation, which tells you the date and time of the initial hearing on a DUI, the case turns from an investigation, into a prosecution.  For Vermont DUIs, the initial hearing is termed as an arraignment, which essentially means that it is the starting point of where the police officer’s work concludes and the Vermont State’s attorney’s work begins.  This article will touch on the basics of the formal process and give defendants a general idea of what to expect while their Vermont DUI winds its way through the court system.

Arraignment

The arraignment is where the defendant and their attorney are provided with the initial paper work (i.e. evidence) that supports the charge.  Affidavits from police, criminal background checks of all witnesses and other supporting documents are customarily produced at this hearing.  This packet of information does not constitute all of the evidence that the prosecution may rely on, but it serves as a good starting point for a defendant to understand what facts are being alleged and by whom.

After having time to review this information, the defendant and his/her counsel will appear before the judge and enter their plea to the charge.  If a not-guilty plea is entered, the judge will set a time for the parties to return to court and may also issue conditions that the defendant will need to comply with during the pendency of the case.  These conditions can range from informing your attorney of a change in address and coming to court when your told to do so, to checking in on a daily basis to a local police station to be subject to a breathalyzer.  The severity of the condition will be heavily dependent on the defendant’s personal circumstances and their prior criminal history.

The Discovery Phase

The 60-90 days between hearings affords both sides to the case time to review the evidence and request that additional information be provided, such as police video tapes, expert reports and other evidence that either supports or refutes the allegations.  This is also the time that motions to suppress evidence or dismiss the case can be filed.  If a motion is filed, the Court can either rule based on the motion itself, or set the matter for a hearing.  If a hearing is set, this will likely push back the date of the calendar call or pre-trial conference until after the motion has been ruled on.

Pre-Trial/Calendar Call

After all legal issues are settled and, if the case has not been dismissed, the pre-trial/calendar call represents a chance for the state and defendant to come together to see if a resolution can be reached.  This hearing can last several hours as there are numerous cases that are heard during the same time block.   It is not an ideal situation for any defendant to be place in a crowded court room while they wait for their attorney to report to them the substance of their discussions with the State.

If it is clear however, that a deal will not be reached at this hearing, a lot of time can be saved if it is reported to the judge early on that the case should be scheduled for its next hearing.  This will allow the defendant to leave the courthouse and for discussions between the State and defense counsel to occur off the record at another time.

Final Jury Call/Final Calendar Call

This hearing, in theory, is the last chance for a defendant and the state to reach an agreement before a jury is drawn and a trial occurs.  In reality, given the court schedule and the backlog of cases waiting for trial, the first final jury call/final calendar call will likely not be the last chance, to settle a case before a jury is draw.  In similar fashion to the pre-trial conference/calendar call, a defendant’s case will be one of many heard that day and again may entail a lot of waiting while the state’s attorneys meet with defense attorneys and self-reporesented individual to discuss settlement.

Settlement or Trial

If the Vermont DUI case is not dismissed, there will come a time in the prosecution where  the defendant will need to choose between settling the case or  trial.  Regardless of what advice a Vermont DUI attorney gives, the ultimate choice on whether to settle or go to trial falls on the shoulders of the defendant.  Depending on the court calendar and the facts of the case, a defendant  may have up to a year before they are forced to make this decision.  However, when and what decision to make will fall solely on the individual facts of the case and the final determination by the defendant.

 

 

What to expect in a Vermont DUI investigation

For many facing a DUI first offense, this experience is the first time they have ever come into serious contact with law enforcement.  If arrested for a DUI-first offense in Vermont the initial handcuffing and ride in the back of a police cruiser certainly is enough to scare most otherwise law abiding citizens straight.  However, the initial contact with law enforcement, the roadside field sobriety tests and the breathalyzer submitted on the roadside are only the first steps in what can be a multi-hour process that constitutes the DUI-first offense investigation process in the State of Vermont.

The Processing

Once arrested, a defendant will be brought back to the arresting agencies barracks, where they will be submitted to a lengthy processing.  It is at this stage where many officers will shore up the evidence in their case, and it is where many defendants, mostly due to their unfamiliarity with the process, will end up incriminating themselves and thus reducing or eliminating all together the potential legal defenses they may have to the charge.

Miranda Rights

The first step in the processing is for the officer to issue the all too famous Miranda warnings, informing the defendant of their rights prior to interrogating them.  To boil down the rights afforded to defendants pursuant to the landmark Miranda v. Arizona case of 1966, it was found that:

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination. Pp. 444-491.

Simply put, if a Defendant is taken into custody they do not need to answer questions and cannot be punished due to their exercising this right.

In most Vermont DUI-first offense cases, the defendant wishes to be cooperative because they think they can curry favor with the officer and maybe handed a break.  There is a difference between being polite and courteous to the officer and being cooperative.  Certainly officers deserve a defendant’s courtesy however, they do not deserve a defendant’s cooperation.  A simple, “I would like to exercise my right to remain silent sir” achieves both purposes after an officer reads Miranda and protects the Defendant from providing evidence that will affect the outcome of their case later on.

Implied Consent

Officers are required to read from a prepared statement a defendant’s implied consent rights under the Vermont DUI statute (Title 23).  These rights inform the defendant of their right to either refuse or submit to a breath test at the station and the consequences of each decision.  For most officers, the breath test is the defining evidence in a Vermont DUI investigation and thus choosing to submit or refuse to a datamaster test may be the biggest decision the defendant makes.

Exercise right to consult with an attorney

Before deciding to either take or refuse a breath test, a defendant has a right to consult with an attorney of their choosing or with an on call public defender.  CONSULTING WITH AN ATTORNEY PRIOR TO DECIDING ON WHETHER TO TAKE THE BREATH TEST IS CRUCIAL BE SURE TO EXERCISE THIS RIGHT!

An experienced attorney can go through the evidence that the officer currently has and can give sound advice as to whether the breath test may help or hurt the defendant in their defense of the charge and what risks are being run for either determination.  Further, the attorney can go back through the implied consent rights to ensure the defendant understands them fully so they can make an educated decision based on the entire picture.

Notice of Intent to Suspend 

If a defendant submits to the breath test and the reading is above a .08 of if the defendant refuses to submit to the test, the officer will issue defendant with a notice of intent to suspend.  This is a form that carries a white and yellow copy.  A DEFENDANT HAS 7 DAYS TO REQUEST a hearing on the license suspension.  If they do not, their right to operate a motor vehicle in Vermont will be suspended on a date certain that is defined in the notice.  It is important for a defendant to preserve their right to a hearing on the civil suspension and thus, sending in the request immediately after being released is a crucial element of the DUI process

Citation

After the processing is complete, an officer will issue a defendant a citation to appear in court.  This gives the date and time and location of where the initial court hearing will take place.  In many cases this arraignment is held during the middle of the working week and can pose significant issues to the defendant, especially if they live far from the courthouse.  Seeking a waiver of one’s personal appearance is not out of the question if the defendant engages an attorney prior to the arraignment date.  This attorney in many cases can seek court approval for the attorney to appear in defendant’s stead, thus relieving the defendant from taking a day off of work to make the trip for what is a relatively brief initial hearing.

In the next post, we will discuss the actual prosecution of the DUI case, the timelines associated with the court process and a discussion on what potential outcomes may arise based on the facts of the case.

 

 

Expanding the Vermont Traffic Stop: Know your Rights

Most people are unaware of the law related to illegal expansion following a motor vehicle stop. The police routinely perform motor vehicle stops on motorists in Vermont, which can often result in a Vermont speeding ticket, some other Vermont traffic ticket, or a criminal citation related to DUI. Most often, it is the quality of the driving itself that alerts the police to a particular vehicle. But what happens if the police use a minor traffic violation, and the resulting motor vehicle stop, as a mechanism to investigate the driver or passengers pertaining to issues that are unrelated to a Vermont speeding ticket or Vermont traffic ticket?

The vast majority of motor vehicle stops in Vermont are related to speeding and minor traffic infractions. But once a motor vehicle stop has occurred, the police are only permitted to investigate and inquire about issues directly related to the reason for the stop. They are not allowed to detain you any longer than it takes for them to issue you the ticket.

Does this mean that, following a stop based upon a speeding infraction, an officer would be forced to ignore and walk away from the obvious open alcohol container, plainly visible illegal substances, or a driver who appeared visibly intoxicated? No! The driver or occupants would clearly be in more trouble. However, if the police make no such observations, they are not allowed to use this opportunity to further inquire about other potential criminal or wrongful conduct. This is an illegal expansion.

At Chadwick Law, we not only specialize in defending Vermont speeding tickets and Vermont traffic tickets, we specialize in challenging illegal expansions. As a motorist in Vermont, be aware of your rights. If you are pulled over related to a Vermont speeding ticket or Vermont traffic ticket, politely decline to engage in conversation of issues that are not related to the stop itself and decline any requested searches. The common result of challenging a case due to an officer’s illegal expansion of a stop is that the criminal charge is dismissed. Protect yourself with awareness.

DUI checkpoints net more than just DUIs

checkpoint

The sign should read, “law compliance checkpoint ahead”, as officers are on the lookout for all types of potential criminal offenses.

A favorite tool for law enforcement in detecting drivers operating under the influence of alcohol, DUI checkpoints have long been effective in law enforcement netting arrests on busy holiday weekends such as Memorial Day and the 4th of July.  However, drivers would be remiss to believe that these checkpoints are present only to detect potential alcohol based offenses along busy Vermont roads.  Instead, in recent years, law enforcement have honed their skills to detect other offenses, such as drug consumption that can also result in a motorist be inglead off to the mobile command post to be processed for a criminal offense.

Of the most common offenses detected by law enforcement is the possession and consumption of marijuana.  Although possession of small amounts of marijuana have been decriminalized (resulting in only a civil infraction, not a criminal citation for possession of under 1 oz.), the detection of marijuana can now lead to not only a hefty fine, but also increased scrutiny by law enforcement to see if the operator is under the influence of marijuana while driving the motor vehicle.  Although this is not your standard run of the mill DUI investigation, drug recognition experts are being trained at increased levels to be able to respond quickly to a report of a potential driving while high infraction.

These offenses carry with them the same penalties as a driving under the influence of alcohol charge (maximum of 2 years in jail and loss of license for up to 6 months).  Further, even if a motorist is found not be under the influence of marijuana, but is under the age of 21, they can face up to a 6 month license suspension as a result of merely possession a small amount of marijuana.

DUI checkpoints are misleading in name and in purpose.  Law enforcement use these checkpoints to have unfettered brief contact with a magnitude of individuals to detect and arrest those suspected of violating Vermont laws.  Thus, when approaching one of these checkpoints it is important to know that all actions committed by the driver will be heavily scrutinized and that you will not be off the hook if you have not consumed alcohol, but may have something else of interest in the vehicle that a well trained Vermont law enforcement officer may be able to detect.

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

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.

What type of insurance hit can I expect from a Vermont moving violation

The fine and the points associated with a traffic ticket only tell a small part of the total monetary story.  The financial consequences of a Vermont moving violation can encompass much more then the fine itself.  One of the biggest concerns for motorists is what type of rate increase they should expect from their auto insurance if their carrier catches wind that the motorist has been convicted of a Vermont DUI or moving violation.

According to a report written by Bankrate.com a  single speeding ticket alone can carry with it between a 19-23% hike in insurance rates.   While a DUI carries with a 93% hike, while reckless driving such as texting while driving can bring with it rate increases as much as 82%.

What is even worse for those with less the pristine driving records is that if you add up a few of these violations, many insurance companies will refuse to even offer you insurance.

Based on the real and substantial consequences of even the most benign of traffic violations, it is important for motorists to calculate what the actual cost of that Vermont DUI, speeding ticket or reckless driving conviction could bring before determining whether or not it is worth the effort and expense of fighting it in the hopes of mitigating or eliminating the collateral consequences.