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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.

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. 

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.

Attorney Fox prevails in Vermont DUI Refusal trial

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Attorney Fox obtained a “not guilty” verdict on behalf of his client on a DUI-First offense trial in Vermont Superior Court this week.  The State introduced evidence that the Defendant had refused the evidentiary test and had performed poorly on the field sobriety tests.

Attorney Fox argued that you “could drive a truck through the reasonable doubt in this case” and, after 2.5 hours of deliberation, the 12 person jury agreed.

 

 

 

VT Drivers: Why Paying a NY Traffic Ticket is a Bad Idea (and What to do Instead)

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Many parts of New York are a simple drive across the border for Vermonters. Drivers from the Green Mountain State should be cautious while in New York; the Empire State is known as one of the worst to get a traffic ticket in. Vermont drivers facing a New York traffic ticket might be tempted to just pay the ticket, rather than deal with the hassle of trying to fight the charges. But this would be a serious mistake. New York and Vermont share driver information—including details of traffic convictions—through an interstate agreement called the Driver’s License Compact. As such, paying a ticket means having to deal with a host of potential consequences far greater than most realize.

Here’s why Vermont drivers should think twice about paying a NY ticket (and what they should do instead).

NY Points Matter to VT Drivers

Despite being licensed in another state, Vermont drivers need to be aware of the points associated with a NY traffic violation. Just like in Vermont, paying a NY traffic ticket means admitting guilt and accepting points. The good news is that New York points will not appear on a VT driving record. Likewise, Vermont does not add points for most out-of-state violations.

However, it would be foolish to think that the New York’s point system doesn’t affect Vermont drivers. The New York State DMV will still keep track of the point value of any traffic convictions. Drivers who are convicted of violations worth six points or more under NY’s system will be assessed additional fines (see below). A conviction for 11 or more points received within an 18 month time period will result in a suspension of driving privileges in New York.

Fines Are Just the Beginning

Unlike in some parts of the country, the fine associated with a NY traffic ticket is not the final cost. Firstly, every traffic ticket comes with a mandatory state surcharge that costs either $88 or $93, depending on where it was issued. Secondly, if the driver is convicted of one or more tickets totaling at least six points, he/she will be required to pay an additional fee called the Driver Responsibility Assessment (DRA). The cost of a DRA starts at $300, and increases by $75 with each point over six.

For example, the fine for driving 21 mph over the limit in NY costs $300. This one ticket alone is worth six points, meaning the driver is almost guaranteed to be charged a $300 DRA. When combined with the mandatory surcharge, the total cost of this one ticket is $693! Similarly, a driver who receives two tickets within 18 months of each other for running a red light ($225, three points) and texting while driving ($150, five points) could end up shelling out over $1,000.

Your VT Driving Record Will Be Affected

When New York convicts a Vermont driver of a traffic violation—whether because the driver paid the ticket or tried to fight the ticket and lost—it sends notice of the conviction to Vermont. Vermont then records the violation on the driver’s record. A blemished driving record can affect many aspects of a person’s life, depending the violation(s). For example, it can affect one’s job or job prospects (especially if one has a CDL license or driving is part of the person’s responsibilities). A significant number of traffic infractions or several serious infractions (i.e. reckless driving or DWI) can also affect future criminal sentencing.

Your Vermont Insurance Rates Will be Affected

Paying a New York traffic ticket also means accepting a likely increase in auto insurance premiums. Since the conviction from paying the ticket will appear on one’s driving record, there is no way to hide it from one’s auto insurer. Insurance companies pull customer driving records as often as possible and update rates whenever new convictions appear. One study found that a single speeding ticket can increase Vermont insurance premiums by as much 19 percent.

It’s not just auto insurance rates that can be affected. Having too many tickets on one’s record, or even just one serious conviction can also impact life insurance premiums. The reason? Bad driving, in the mind of insurance companies, means risky behavior. And more risk equals higher premiums.

You Could Lose Your Driver’s License

Although Vermont will not apply points for out-of-state tickets, those tickets can still lead to a suspended license in Vermont. For example, if New York issues a suspension of driving privileges against a VT driver, the Vermont DMV can issue a suspension of the license in kind. This can happen if a driver is convicted of driving 41 mph over the limit (an 11-point violation), drunk driving, or driving without auto insurance.

Another way a Vermont driver could lose their license over a New York traffic ticket: refuse to respond to or pay it. Drivers who fail to respond to or pay a New York traffic ticket can expect NY to suspend their right to drive in the state—even if they are licensed in Vermont or elsewhere. Like all other reasons for a suspension, it will appear on one’s driving record and can result in Vermont suspending the license in kind.

What to Do About a NY Traffic Ticket

It’s a bad idea to pay a New York traffic ticket, but it’s equally as bad to not pay it. The ideal solution, then, is to hire a qualified attorney to fight the ticket. A skilled attorney can develop a strategy to get the ticket dismissed or negotiate it down to a lesser charge that will have little or no impact on one’s driving record. As a plus, depending on the case, a driver who hires an attorney may not have to return to New York to fight the ticket. In most cases, New York allows licensed attorneys to appear in court in lieu of the driver, even if the driver is from another state. This means saving the time involved in a trip to court.

Author Bio

Adam Rosenblum, Esq. is the founder of TrafficTickets.com, a traffic ticket law firm that practices traffic ticket and criminal law in both New York and New Jersey.

Underage alcohol possession may lead to enabling criminal charge

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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.

 

 

Attorney Robb Spensley wins client acquittal in felony trial

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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.

Vermont Attorney Evan Chadwick Successfully Completes Drug Recognition Expert Training

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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”.