DUI checkpoints net more than just DUIs


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.

Vermont Police out in force for DUI checkpoints

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.

Cell phone law nets over 100 Vermont traffic tickets so far

Although the cell phone ban while driving is still relatively new in Vermont, that hasn’t stopped law enforcement officers from issuing over 100 tickets since the law’s inception on October 1, 2014.  It was recently reported by NECN that in just the first 30 days over 130 stops were made by Vermont law enforcement throughout the State.  Although a majority of those stopped in October were issued warnings, there were still over 30 tickets that were issued.

This means that in the first two weeks of November alone, over 70 tickets have been issued as to the ban, which carry with it a $162 fine.  The law currently does not provide for points to be issued on an individual’s driver’s license.

For those still unfamiliar with the law, it can be summed up with a few simple words:  If your electronic handheld device is not hands-free then it is illegal in the State of Vermont to use it while driving a motor vehicle.

Although the fine alone may not scare many individuals into keeping off their phones while driving, if the device played a role in an accident, the penalties can be far worse.

Numerous cases have been brought into criminal court when an individual has been injured as a result of a driver being distracted by an electronic device while driving.  Depending on the severity of the injury, the potential penalty for such an offense can travel up as high as 15 years behind bars.

With the new law, which allows Vermont officers to pull over motorists merely because they see a driver with a device in their hand, the risk far outweighs the reward.

Vermont police department will release breath test results after DUI stop

One of the first legal backlashes of being arrested for DUI in Vermont is the dreaded press release police release the day after an arrest is made.  This release normally discloses the name of the individual arrested for a Vermont DUI, where the arrest occurred and a small description of the details of the arrest.  However, in many instances, the crucial evidence that supports the DUI charge, such as an individual’s performance on the field sobriety tests and their breath test results is not disclosed in the initial release.  For several police departments, this policy is about to change.

The South Burlington Police Department recently announced that they would begin disclosing the results of breath tests for those arrested for DUI. According to a report by WPTZ.com, police departments had been withholding this information due to concerns that the accused would not get a fair trial if potential jurors were able to read about the defendant’s breath test results prior to their admissibility being determined by a Vermont district court.

In a change of course, departments are now saying that transparency in these arrests is more important then keeping the results confidential.  This push was given substantial weight when governor Peter Shumlin stated that he was in favor of full disclosure.

The Vermont State Police and Vermont Department of Motor Vehicles will also be disclosing breath test results.  Although transparency in government is important, the constitutional right of an individual accused of drunk driving in Vermont trumps the press and the public’s need to know.  Numerous issues have arisen in recent years as to the breath test’s reliability.  As a result, this practice may potentially have an adverse effect on those who were under the legal limit at the time of operation, certainly not helpful in ensuring that every person is given their day in court to present a defense.

Mitigate your risk after a Vermont traffic stop

In traveling to Vermont traffic courts across the State of Vermont, I have gotten to meet a lot of very good hearted, professional police officers.  I have also gotten to meet a few, how shall we say it…sour ones.  In most of these meetings I, as a Vermont traffic ticket attorney, have gotten to sit down with the officer and discuss whether we can come to a negotiated settlement prior to litigating the traffic ticket before a Vermont assistant judge.  I have found that a police officer is much more inclined to offer a favorable deal if a motorist dinot perform one of the following maneuvers when the officer made first contact with them.

1)  Show the officer a business card of law enforcement you know:  This “networking” to get out of a ticket has never worked as far as I know.  In fact, the officers that I talk to have told me that it is an insult to their professionalism when someone thinks that just because their cousin is a State Trooper in another state, that this gives them a free pass to speed or break other traffic laws in Vermont.

2) Argue the merits of the stop on the roadside:  If an officer has pulled you over, they have done so because they believe they have the evidence necessary to charge you with a traffic violation.  Putting your case on trial to the officer right after he has pulled you over will not win you points with the officer and could lead to him giving you no break on the fine and points, when they write up the ticket.

3)  Say you have an emergency when you really don’t:  Officers are understanding of emergencies.  They will even at times escort you to the hospital.  However, if you say that you need to get somewhere fast because its an emergency and the cop calls you out on it by offering an escort to the alleged place of emergency and finds out you were lying, this could be a big problem when you receive your traffic infraction.

Vermont police officers will customarily write notes on their copy of the ticket they issued you if a motorist gives them reason to remember you at a traffic ticket hearing.  These notes will jog the officer’s memory as to the encounter they had which will greatly influence their decision on whether or not they are willing to cut you a deal.  Don’t give the officer reason to remember you, the less they remember about the stop, the better chance you have at prevailing at or before trial.

ACLU challenges Vermont traffic stop

A motorist was pulled over, detained for over an hour and then had his car towed for what?…a minor Vermont traffic ticket.

According to a recent lawsuit filed by the ACLU, a young man was pulled over after a Vermont State Trooper alleged that snow was partially covering his registration tag.

After the officer tried repeatedly to gain consent from the motorist to search the vehicle, which according to the suit, took over an hour, the officer had the vehicle towed and told the motorist that he would have to walk home, some 8 miles from his current location.

Eventually, the police were able to gain a warrant to search the vehicle and found only a small amount of marijuana, a civil offense that submits the offender to a small fine.

The Troopers involved in the arrest are now going to be forced to answer some tough questions as to their conduct, which may shed some further light on tactics used by law enforcement that directly contradict their sworn duty to protect and serve the public.

Vermont traffic ticket defenses that don’t work

Everyone has heard from arm chair lawyers of potential defenses to traffic tickets beyond the actual facts of the traffic stop.  However, for those who have litigated in Vermont traffic courts, the “defenses” suggested by those outside the litigation realm will often hold little or no weight in front of a traffic court judge.  Before going in to raise these defenses, please take a moment to see if they fall into one of the below categories:

Speeding ticket “defenses”

“I was traveling with the flow of traffic”

No matter if your a single vehicle driving on a lonely Vermont country road, or one of several vehicles in a pack traveling down Interstate 91, speeding is speeding, no matter how many or how few motorists are doing it together.  Making an argument in front of a judge that you were singled out of a group of speeders does not mitigate or excuse the conduct and, in many cases, will hurt your credibility in front of the judge, not a good way to start your traffic ticket trial.

The police officer was hiding on a private road”

Once again, pointing the finger at something other than the violation will not assist you in your hearing.  Although officer’s may technically be parked on a private road, local right-of-ways and town ordinances often give officers the right to do so.  As for the hiding aspect, it is merely part of their training, they are out there to catch speeders, not to give them fair warning of their presence.

“The officer spelled my name wrong on the ticket”

Unless the officer misidentified you completely (John Smith instead of George Thompson), a minor misspelling in your name will not get you off the hook for a Vermont traffic violation.

The officer didn’t issue me my Miranda rights when he pulled me over”

They don’t need to.  Unless an officer takes you into custody (handcuffs you and puts you in their cruiser), the questions they ask on the roadside are not a custodial interrogation that trigger Miranda protections.  However, keep in mind, that you hold a right not to answer questions that may incriminate you, such as “do you know why I pulled you over”.  However, if you answer these questions, those answers can be admitted at trial.

Keep in mind, that there are numerous defenses to a traffic ticket that do in fact work at trial.  Picking the right defense can make all the difference between prevailing and losing, but choosing random defenses not supported by Vermont law, will muddle the issues and will hurt your chances of reaching a positive outcome.

Vermont cell phone ban nets Vermont law enforcement its first arrest

Arrest number one is in the books.

Two days after the implementation of the new hand held device ban on drivers, Vermont police arrested an individual on drug possession charge after a police officer alleged to have seen the man talking on his cellphone.

The Burlington Free Press reports that this arrest was the first in Vermont that was triggered by the new law.  The man not only faces a fine for his cell phone traffic ticket, but is also facing felony marijuana charges after police claim to have located over two ounces of the drug in his vehicle.

The officer was reportedly tipped off of the drug’s presence after he approached the vehicle and have smelled marijuana in the vehicle.  When the operator refused to consent to a search, the police towed the vehicle and searched it after a warrant was approved by a local judge.

This law will likely be an expansive battle field for prosecutors and defense attorneys in the coming years.  Allowing an officer to pull someone over merely because they claim to see someone using their phone, will likely cause numerous challenges to the circumstances of the officer’s visual contact with the motorist.  Although the facts will vary widely in each case, after enough cases have been ruled on, a precedent for the validity of this law will maneuver its way through the Vermont judicial system.