Will My Home Driver’s License Be Suspended For a Vermont DUI?

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All states except for 5 (Massachusetts, Michigan, Wisconsin, Tennessee, and Georgia) are part of the Driver’s License Compact. The idea behind this is that there is one license, one record, for all of these states. Unfortunately, it is not always that simple. The idea for these states is to treat violations from out of the state as if they happened in the violator’s home state. However, legal statutes are not identical from state to state and there can be some legal wiggle room depending on how the law matches up between states. Even worse, the operator could potentially receive double the fine. If the charge is treated as if it happened in the violator’s home state, both states have the power to levy fines, as well as license reinstatement fees.

New York 

If you are over 21 years old and are convicted of an alcohol or drug related driving offense in another state (or even Ontario or Quebec), you could get your driver’s license suspended for at least 90 days.  For non-alcohol/drug related driving offenses, New York does not record out of state violations, with the exception of criminal negligence, homicide, or assault with a motor vehicle that results in death. 

Massachusetts 

In Massachusetts, the courts could indefinitely suspend a driver’s license after receiving notice of an out-of-state DUI charge until the driver’s ability to operate a motor vehicle has been restored in the state or jurisdiction in charge of the DUI case. Similarly, for other charges such as gross negligence, the operator will receive a comparable punishment, however, certain criteria may not be identical between Massachusetts and Vermont, which could lead to grounds for dismissal in Massachusetts. 

Rhode Island

Rhode Island could suspend your license if prosecutors can prove that you were convicted of a DUI, not just charged. However, there are very specific parameters for a DUI in Rhode Island that are not exactly the same as those in Vermont or other states, which could help the operator’s case in Rhode Island. The same rules apply for gross negligence cases.

New Jersey

New Jersey drivers could see their license suspended if convicted of DUI or gross negligence in another state. The state treats convictions from other states essentially the same as being convicted within the state, as long as the statutes have relatively comparable statutes. 

Connecticut

Connecticut operates under very similar rules to New Jersey. If convicted in Vermont or another state of a DUI or gross negligence, Connecticut drivers could see their license suspended, as long as the parameters of conviction match up.

New Hampshire

Upon notification from Vermont of a DUI, New Hampshire could suspend your license. This goes for other traffic violations as well. For a DUI/DWI, the suspension would be at least 9 months. 

Maine

If convicted of a DUI in Vermont or other states, Maine will receive a notice of conviction. Once this notice is received, the operator’s license could be suspended based on their driving record in Maine. Additionally, gross negligence could also end in a suspended license depending on record and how the state statutes align.

It is important to understand your rights as an out of state driver if charged with a Vermont DUI. Understanding how a Vermont conviction can affect your out of state license is one of the most important pieces of navigating the Vermont criminal justice system in a way to ensure you receive the best, most well-informed path forward.

Is The Truth in the Eyes?

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A Brief on Horizontal Gaze Nystagmus in Vermont DUI Investigations

What is Horizontal Gaze Nystagmus (HGN)?

The definition of nystagmus is a “rapid involuntary movement of the eyes.” This could be side to side, up and down, or circular movements of the eyes. This is due to brain disease or inner ear balance. Brain disease causes vertical nystagmus, while inner ear balance causes horizontal. 

Alcohol consumption, as well as other depressants and various types of drugs can also lead to nystagmus via preventing the brain from properly communicating with the eyes, causing horizontal nystagmus. The further the individual becomes impaired, the more violent the eyes will jerk. 

How Do Vermont Law Enforcement Use HGN?

The HGN test is one of the three parts of the Standard Field Sobriety Tests System. Criminal justice students in Vermont are taught that the HGN test is the most reliable field sobriety test.

Officers in Vermont administer the test in three parts. They always begin with the left eye. The first thing that they test for is smoothness in movement. As the eye moves from side to side following the object that it is prompted to follow, does it move smoothly or jerk? The next thing tested for is nystagmus at the end of the movement. When the eyes are moved all the way to one side and held in position for four seconds do they begin to jerk at all? Finally, They test to see if the eyes begin to jerk before they reach 45 degrees in movement. 

For each eye, there are 3 points allotted in the test, totalling 6 points. Officers are taught that if the suspect fails 4 or more of these points, they can tell with 77% certainty that their blood alcohol percentage is above 0.10%. 

How You May Limit the Relevance of HGN in a VT DUI Trial

Before an officer may go ahead with an HGN test, they must verify that the subject’s eyes track stimulus together, and that their pupils are the same size. If they are not, this could be a sign of medical disorder or head injury. 

If your case goes to trial, it is important for your attorney to file a motion in limine to exclude all evidence regarding the HGN test. This is essentially a motion to exclude certain evidence from being presented to a jury as it is irrelevant, untrustworthy, or more based on prejudice than probate. 

Additionally, the state should not be allowed, based on legal precedent, to enter an HGN test into evidence if they have not given notice of an expert witness testimony on the subject. If the evidence were allowed to be presented in court, the witness should be required to relate the complicated science behind the test to the jury, who’s members most likely don’t have advanced scientific backgrounds. Vermont trial courts have decided that this expert testimony must occur before HGN evidence is allowed to be brought forward to the jury.

However, the state rarely has the time, resources, or will to pay for an expert witness sufficient enough to allow for HGN evidence to be used in trial. A motion in limine will most likely be successful in blocking this test from following you into the courtroom. It is of the utmost importance that you contact your attorney as soon as you receive the citation, as they can help prevent you from loss or suspension of licensure, large fines or possibly jail time. Preventing HGN evidence from being used in your trial could just make the difference.

What can cause me to lose my CDL or trucking license?

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A look into violations that can cause loss of your CDL (Commercial Driver’s License)

Many actions taken by those who have their CDL, or trucking license, whether it be behind the wheel of a commercial motor vehicle (CMV) or personal vehicle, can result in the suspension or loss of licensure. This can lead to loss of income due to a temporary inability to work, or even a need to find a new career.

Alcohol, felonies, abandoning an accident

In contrast to the typical blood alcohol limit of .08%, it is illegal to operate a CMV at .04% or more. Operating a CMV implies consent to be tested for alcohol in the system. You will lose your CDL for at least one year for driving a CMV under the influence of alcohol, refusing blood alcohol testing, driving under the influence of a controlled substance, leaving the scene of an accident, committing a felony involving the vehicle, or causing a fatality due to negligent operation. This is upped to at least three years if the CMV being driven is denoted as having hazardous materials. You will lose your license for life on a second offense, or using your CMV to commit a felony involving controlled substances.

Serious traffic violations

Serious traffic violations include speeding (15 or more over the posted limit), reckless driving, reckless lane changes, following vehicles too closely, traffic offenses while driving a CMV that are related to a fatality, as well as driving without CDL or operating a CMV without the correct CDL class. Committing any of these violations twice, in a three year span, will result in you losing your CDL for 60 days, and 120 days for committing three violations in that 120 day span.

Violation of out of service order

If a driver is placed on an out of service order, they must not operate a CMV during the time under which they are ordered out of service. One of the reasons a driver could be placed out of service is for having alcohol in their system, but below .04%. Violations of this order come with a 90 day CDL suspension for the operator’s first violation, a year suspension for two violations in a ten year span, and three year suspension for three or more violations in a ten year span.

Railroad-Highway grade crossing violations

Railroad-Highway violations occur when the operator does not comply with federal, state, or local regulations pertaining to one of six offenses at a railroad-highway grade crossing. These include: failing to stop at unclear tracks for drivers not required to stop, failing to slow down to check that tracks are clear for those who do not have to stop, failing to stop for those required, driving through tracks without having enough space to make it through without stopping, failing to obey traffic control devices at the crossing, and failing to negotiate a crossing because of a lack of undercarriage clearance. The first violation of these rules results in a 60 day license suspension, 120 days for a second offense in three years, and a year for three or more violations in a three year span.

Traffic violations in your personal vehicle

CDL holders may also lose their license for violations of the law with their personal vehicle. If your ability to operate your personal vehicle is revoked, canceled or suspended for any reason other than parking violations, you also lose CDL privileges. If the loss of license is due to alcohol, controlled substance, or felony violations, you will lose your CDL for a year from the first offense, and life for the second.

Know your rights

As a commercial driver’s license holder, it is important to know your rights, when it comes to CDL traffic violations and those violations involving your personal motor vehicle. Do not let an allegation become a permanent blemish on your ability to provide for yourself and your family. You have a right to an evidentiary hearing on all allegations and should pursue any remedy possible to either eliminate or mitigate your risk for long term effects.

A look at the car insurance mandatory disclosure regarding Vermont moving violations; inside the details

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When a motorist is issued a traffic ticket, there are two major concerns; points on license, and, insurance consequences.  Although some may hope that since they live outside Vermont, their home state insurance adjuster may not pick up on the violation.  Although there have been instances of missed violations in the past, a recent look at consumer mandatory disclosures of insurance companies, tell a different story, one that may not be noticeable at first, but over time can lead to substantial financial penalties; the gradual rate increase.

Most insurance companies place drivers in “risk tiers”.  This determination is based on a variety of factors such as driving and accident history, location of residence, age and even credit history.  In the mandatory disclosures it is revealed that “at renewal we review your payment, claim, driving and policy change history to determine if we will adjust your risk tier.”  

Driver history checks however, do not only occur during renewal periods.  The mandatory disclosure further explains that “once we’ve determined your tier, we look at additional information to refine and finalize your rate.”  

This leaves open the possibility for insurance companies to check driving histories at different times during a policy period pursuant to their right to “refine” risk tiers, which they can use as a basis to increase rates.

A Right to Gradually Rise

Although it is clear from the disclosure that “rate[s] will generally change when you “move to a new location, have an accident [or] receive a violation…” what is not clear is exactly how much a motorist’s insurance rates will be impacted.

A closer look at the disclosure reveals that insurance companies may not raise rates significantly at first.  Instead, they reserve the right to “gradually increase rates over time”.  

Certainly there are benefits to gradual increases however, if the rate increase continues to rise, when does it actually stops rising? This is a question with no answer on the consumer disclosure.

Lives can be busy, hectic and sometimes chaotic.  Most of the time, we just want things to work, without us expending too much effort in understanding the details.  Although understandable, the value of understanding your rights as a consumer and the rights reserved by car insurance companies may come in handy if you are ever issued a Vermont moving violation.

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. 

How will insurance discover my Vermont traffic ticket?

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Insurance companies have many tools to determine whether they have a basis for placing a client in an elevated risk pool. They can search online databases, run a client’s local driving record or simply ask a client to update them on whether they received any moving violations in the last year. Regardless, it should be expected that if you receive a Vermont traffic ticket that carries points, it is likely that your insurance company will find out about it.

How to avoid the Moving Violation

The key to any traffic ticket defense is to articulate a basis for a moving violation to be avoided. Driving history, conduct of the individual on the roadside and the age of the driver are all key factors. When negotiating with an officer it is important to point these factors out at the onset of negotiations. This should put the officer at ease knowing that they are dealing with someone who is reasonable and understands the importance of safe driving.

After the illustration of mitigating factors, it is equally important to determine whether there are any legal defenses to the charge. Radar calibration, other motorists on the road, and the proper issuance of the ticket are all important factors to consider. In some instances, it is advisable to point these issues out in negotiations, while in other cases it is best to keep these defenses close to the vest in the event the case has to go to trial.

Ultimately, these defenses can be used as leverage with the officer in order to negotiate a better deal or, if no deal can be reached, to present the defense to the judge to allow them to determine whether the clear and convincing standard of proof has been met.

No driver wants to have a list of Vermont moving violations following them around. The ultimate goal in presenting a traffic ticket defense is to leave all avenues open in the hope that a result can be reached that will not result in the insurance company being able to assess additional fees.


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.