vermont dui attorney

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.

 

 

 

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

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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

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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.

 

Vermont DUI attorney passes field sobriety practitioner course

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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”.

 

What to expect in a Vermont DUI prosecution

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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

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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.

 

 

Do license points transfer from Vermont to other states?

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One of the most frequently asked questions as a result of a Vermont traffic ticket are whether the points issued as a result of of the violation transfer to the operator’s home state.  In short, there is no exact answer to this question.  Each State runs their own point system when it comes to civil traffic infractions.  As a result, each state has their own internal policies with regards to whether or not points are shared from one state to another.

It is important to note however, that regardless of whether points transfer, the most important question to those living outside the State of Vermont is whether the violation itself transfers.  The violation (defined by a code) is what carries with it the potential for increased insurance rates, which as posted previously can cause motorists thousands of dollars in hiked premiums over the coming years.

What insurance companies are looking for when they check a motorist’s driving record is whether the violations themselves carry with them an indication that they fall under a category of “moving infractions”.  This means that the violation charged was the direct result of the manner in which an operator drove their motor vehicle.  Speeding violations are the first that come to mind.  However, there are other violations such as running a red-light, failure to yield and driving too fast for conditions which carry the same connotation as speed does in the eyes of insurance companies.

As a result, the overall motivation for any operator looking to contest their Vermont traffic ticket is to avoid as much of the “moving violation” indication on their driving record as possible.  This will minimize the damage of a driving record check and will ensure that an out-of-state motorist will not be hit as severely or at all, when their insurance company checks up on the driving status of an individual driver.

 

 

Vermont Police out in force for DUI checkpoints

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Drivers beware!  Vermont State Police in cooperation with local police forces will be out in mass from now until the beginning of the year conducting DUI checkpoints across the State.  These checkpoints primary objective is to detect drunk drivers, but will also be to enforce seatbelt and other Vermont motor vehicle laws.

It has been well settled in Vermont that the following provisions must be followed in order for a DUI roadblock to be considered constitutional under the 4th Amendment.

As a general rule, a DUI roadblock will pass constitutional muster if: (1) the initial stop and the contact between the officers in the field and the motorist involves an explanation of the nature of the roadblock and minimal detention of a nonimpaired driver; (2) the discretion of the officers in the field, as to the method to be utilized in selecting vehicles to be stopped, is carefully circumscribed by clear objective guidelines established by a high level administrative official; (3) the guidelines are followed in the operation of the roadblock; (4) approaching drivers are given adequate warning that there is a roadblock ahead; (5) the likelihood of apprehension, fear or surprise is dispelled by a visible display of legitimate police authority at the roadblock; and (6) vehicles are stopped on a systematic, nonrandom basis that shows drivers they are not being singled out for arbitrary reasons.  State v. Martin 496 A.2d (VT 1985)

Roadblocks have been attacked on constitutional grounds for a wide range of reasons, such as Officers detaining a motorist for longer than is necessary or for them singling out certain vehicles based on their make and model or the appearance of the driver.

If your planning on driving during the evening hours this month, be sure to check local newspapers for press releases on DUI checkpoints that are planning on being conducted.  However, as a basic rule, the assumption should be, that if your driving at night this month, expect that there will be a Vermont DUI checkpoint somewhere along your travels.